Dave Gorman, Victim Of A Bogus DMCA Takedown, Highlights Flickr's Horrible DMCA Takedown Policy

from the press-'DEL'-to-shrink-your-user-base dept

Tue, Mar 13th 2012 3:12pm — Tim Cushing

Dave Gorman, a Flickr user whose photo was taken down by a bogus DMCA notice, is fighting with Flickr to get it to, if nothing else, change the way it handles takedown requests. Gorman's photo, along with all of its comments and views, was deleted based on the "strength" of a scatter-shot DMCA issued by Degban, supposedly on behalf of porn producers Wasteland.

Obviously, his photo was not property of Wasteland. While Degban's CEO continues to claim this is a result of having its software hacked (despite the fact that the alleged hacking occured 12 days after the takedown notice was issued), Flickr has basically responded with... nothing.

Flickr's system for handling DMCA requests is even more screwed up than the DMCA process itself, if that can be believed. Gorman, artist that he is, has crafted a handy flowchart illustrating just how screwed Flickr users are if they should find themselves on the receiving end of a DMCA takedown.

Flickr Sometimes Deletes Your Content Even Though They Don't Have To

On the upside, if you are a US resident and the takedown is issued by a US-based company, all that will happen is the image itself will be removed and replaced with a message stating "THIS IMAGE HAS BEEN REMOVED DUE TO A CLAIM OF COPYRIGHT INFRINGEMENT." Once everything is sorted out, it's simply a matter of restoring the photo if the DMCA notice is challenged successfully. (Taken from Flickr's Help Forum.)

What does this mean?

-- US members will still receive a warning that contains the name of the complainant and now will include a link to the image where the content has been removed.

-- The original image will be stored by Flickr. Should we receive notice from the US Copyright Team to replace the original, we will be able to do so. *** Please note will be able to do so as long as the original photo.gne page is left in place. If a member chooses to delete the photo.gne page we'll assume that they're not interested further activity like restitution of the image. ***

-- The existing title, description, comments, tags, notes, etc. will be available. The image can still be added to sets and groups.

-- Blog This, Edit in Picnic, "replace this image" and the EXIF info will be disabled.

-- The image will be flagged NIPSA and as such will not return in search results nor be available in the API.

For the rest of the world

-- The existing process of photo removal will continue. We're going to begin reaching out to the other regional copyright teams to see if they would like us to enact this feature where they are. Given that the counter-claim process is unique to the DMCA, we'll need to work out how image restoration will work elsewhere.

Unfortunately, should you be a resident of any other country in the world, Flickr will continue to simply delete your photo and everything attached to it. Even if, as in Gorman's case, the DMCA takedown notice is successfully challenged, it is left up to the user to repost the image on their own. All attached comments are permanently gone, along with the view count, and anyone linking to that particular photo is left with a useless dead link.

Now, according to the terms of the DMCA, the service provider is supposed to replace the content it removed. Flickr is obviously not interested in doing that. It's not as if Flickr doesn't have the technology. Gorman pointed out on Twitter that Flickr has restored deleted accounts in the past, which means that a permanent backup of Gorman's entire page probably still resides on its servers. It even repaired external links for the user. But for some reason, Flickr is simply unwilling to fix this for Gorman or change how it handles foreign accounts.

Flickr did not respond to Gorman's emails. Yahoo!, which owns Flickr, did, but its "answers" were completely useless.

I have to communicate with flickr and Yahoo! separately. Flickr have yet to reply to a single email about it. Yahoo do reply. Eventually. It takes them 5 days. And then it's the kind of reply that doesn't actually reply to anything. Imagine typing a reply to someone who's asked 4 questions, knowing that you've not attempted to address 3 of them, and still ending it with the words, "we trust this answers your concerns"? It doesn't. And they know it doesn't. That's Yahoo.

Gorman did receive a phone call from Flickr's senior community manager, but found that conversation to be nearly as useless as Yahoo!'s incomplete answers:

When I asked Zack if he could tell me why the rules were different for non-US based customers he said that he couldn't tell me. I asked if he knew and couldn't tell me because he wasn't allowed to or if he couldn't tell me because he simply didn't know. He replied that he couldn't tell me that either. When I asked if he thought they could replace the photo he said he didn't know. I told him that I knew they had managed to replace a whole account that had been deleted recently, and he told me that replacing an account was not the same as replacing a page. I asked him why he thought they didn't have to comply with the terms of the DMCA and replace the photo and he told me he wasn't able to answer questions like that.

I don't believe Zack's employers are giving him the tools required to do his job.
"If it's possible to replace the photo, will you do so?"
"Ack... I ... um... that's tricky... I can't say yes to that."
"But the only reason you wouldn't say yes to that, is if you can imagine a situation in which you discover it is possible but still don't do it?"
"Yes."
"And can you imagine that happening? Can you imagine one of your engineers saying that he can replace the photo... and you deciding not to do it?"
"Well... no."
"So promise me that if it's possible to replace it, you will replace it."
"I don't think I can do that."

Following this disheartening phone call came Flickr's official response to Gorman's situation, and it appears that the photo service is not going to deal with this at all.

"After reviewing your recent correspondence, we have no further comments to make regarding this case, and consider it closed."

That's no way to run a social service on the internet. Your users are from all over the world, and while it is extremely difficult to play by the hydra-esque rules of a multitude of rightsholders, there are a million better ways to service the needs of your customers—and Gorman is indeed a paying customer with a Pro account. If the comment thread on Gorman's picture is any indication, Flickr is going to start leaking users simply because it refuses to budge an inch on its so-called DMCA response policy.

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Filed Under: copyright, dmca, takedown
Companies: flickr, yahoo

55 Comments

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Anonymous Coward, 13 Mar 2012 @ 3:26pm

The great thing about technology and its capabilities to automated things is that it is bringing all those incredible stupid laws like copyrights to the forefront where everyone will be affected.

I want to see people trying to explain to the public why granting a monopoly to someone at their expense is acceptable.
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Jake, 13 Mar 2012 @ 3:28pm

Boy, has Flickr picked the wrong guy to mess with this time. The international brotherhood of Dave Gormans (which exists for reasons too complicated to go into here) is going to be pissed.
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That Anonymous Coward (profile), 13 Mar 2012 @ 3:31pm

I wonder how much of their policy is just to try and keep their costs down. Not saying what they do is right or wrong because it looks really wrong.

This could be some of the "hidden" costs that copyright enforcement forces onto everyone else.
Flickr has to pay someone to take care of these requests, and they need to also be able to manage the tech side of just hiding it.
Its cheaper to just give them a button that deletes stuff.
If you own the picture and its found to not actually be infringing, you just put it back. The problem is the "community" aspect that makes flickr popular with being able to link and comment. But someone decided it was just cheaper to delete than to hold it back.

It appears that the community isn't that important to flickr, and the next big thing to replace them will. Of course we will have lawsuits for years trying to run the new kid into the ground... but in 5 years or so we might get something newer and better.

While copyright holders get to shift their costs for keeping up on enforcement to everyone else, there really needs to be a push back to have real penalties when they use questionable means like in this case. They should have to pay for making a false complaint (via agent or themselves) to the person. They are causing harm to noncorporate people who are always automatically assumed not capable of creating anything unique or new without "stealing" from them. They cite losses in the millions/billions of dollars if someone sees one of the things they own without paying, what is the right cost when you "steal" an image you don't actually own?
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Matt Williams (profile), 13 Mar 2012 @ 3:33pm

The comedian
And you are aware that it's this Dave Gorman, right?
[ link to this | view in thread ]
Leander (profile), 13 Mar 2012 @ 3:34pm

Collateral damage
I have a Flickr account which I use to for my own photos and this story has certainly convinced me to never get a pro account. If they don't bother to defend their customers, why the hell should I pay them?
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Anonymous Coward, 13 Mar 2012 @ 3:38pm

DMCA to Flickr
I wonder what Flickr would do if someone sent a DMCA takedown on Flickr itself? Who wants to...
[ link to this | view in thread ]
Anonymous Coward, 13 Mar 2012 @ 3:42pm

Who will gain the title of users rights champion?

https://en.wikipedia.org/wiki/List_of_photo_sharing_websites
http://www.photographybay .com/2007/12/03/flickr-alternatives/
http://glazemoo.blogspot.com/2011/03/flickr-alternative-image- hosting-and.html
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Chosen Reject (profile), 13 Mar 2012 @ 3:48pm

Re: Collateral damage
No no, you got it all wrong. Someone has a patent on restoring content removed for copyright reasons. Yahoo is just being consistent here. They believe in the patent system and would never violate a patent.
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FuzzyDuck, 13 Mar 2012 @ 3:54pm

Patented takedown procedure
The bright side: Yahoo patented this takedown procedure so no one else can use it without being sued.
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Anonymous Coward, 13 Mar 2012 @ 3:58pm

Re:
Search for "flickr alternatives" and look for stories in 2007~2008 range, flickr-yahoo were bite by accusations from all sides(i.e. copyright holders and users) and so they did this stuff. After each misstep that someone complained about a number of "alternatives" post were made, you can track the down trajectory that the service is currently on using the number of articles that have "flickr alternatives".

I looks like they don't know what to do, if they allow a system where content can just magically come back to life copyright holders freak out and sue, users freak out an leave on the other hand.

From my point of view they are screwed not matter what they do, the assumption appears to be to take the less of two evils and that is to make copyright holders happy so they don't sue as much, but that inevitably leads to users leaving the service making it less attractive, seeing the number of users a couple of other photo-sharing websites are already bigger than flickr-yahoo.

Copyrights is destroying business.
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Leander (profile), 13 Mar 2012 @ 4:12pm

Re: Re: Collateral damage
So this patent is only valid in the USA? In other words, here in the EU we're basically boned...
[ link to this | view in thread ]
Leander (profile), 13 Mar 2012 @ 4:13pm

Re: Patented takedown procedure
Much like they have a patent to Facebook?
[ link to this | view in thread ]
PT, 13 Mar 2012 @ 4:34pm

Re:
"..in 5 years or so we might get something newer and better."

We shouldn't have to wait that long. Yahoo! is already a dead man walking, and this affair will just speed it on its way out.
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SUNWARD (profile), 13 Mar 2012 @ 4:41pm

stop using flickr
websites are cheap and you control everything. Just be careful of the hosting company.
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Anonymous Coward, 13 Mar 2012 @ 4:46pm

Re: Re:
No. While copyright may be destroying business, it's not the case here. Flickr (and Yahoo)'s incompetence is what's destroying things here.

Yahoo and Flickr made a series of bad decisions. They implemented a broken takedown mechanism, and then fired everybody who knew how it worked, and everybody who would be able to fix it.

Then they sold the rest of their business at a loss, ensuring they wouldn't be able to re-hire the people who made it.

Copyright law has *nothing* to do with this. This is 100% the fault of Yahoo and Flickr.
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TtfnJohn (profile), 13 Mar 2012 @ 5:26pm

If there was the slightest question about why Yahoo is going down the drain fast this has certainly answered that.

If they want Flickr to continue to be the success it has been they'd better fix this because "word of mouth" is so fast across the interwebs that half the planet knows about this by now and the other half will know tomorrow morning.

Just blanking the allegedly "offending" photo out ought to be enough for everyone as it allows restoral of the customer's material, comments and so on very quickly and easily no matter what Flickr and Yahoo say. Plainly dumb and stupid.
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Anonymous Coward, 13 Mar 2012 @ 5:39pm

Re: Re: Re:
Although flickr-yahoo did in fact implement the tools for all the missteps those were driven by copyright laws and their insanity.

Have there been no copyrights there would be no claims of ownership on anything and all of this would be mute.

Instead what you have is a set of ridiculous laws that encourage people to act like idiots and complain about a lot of things one part have the power of the government behind it and can harm business, the other have the power of their numbers and the benefits that it comes with it, both sides are in a tug of war right now and flickr-yahoo is caught in the middle of it all, they will suffer as will any other business because both sides, copyright holders and the public are very powerful.

Flickr-yahoo is just discovering that now, after 2007 when copyright holders complained about them you can see they changed the system to what it is today and now it is becoming increasingly obvious that those changes are not good for the other side and are seeing some backlash, but they have been doing that for years and nobody complained that loudly which for them was a sign that everything was good, but it is not, people are realizing they too have rights and that anybody who does something is in fact a copyright holder too and they need protection against other companies.

Copyright has everything to do with this mess is because of it that those things happen it is the root cause of it all.
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Ramon M, 13 Mar 2012 @ 5:41pm

Sucks
Websites like flicker and youtube should have heavy penalty placed on the people who file fake DMCA claims
[ link to this | view in thread ]
Anonymous Coward, 13 Mar 2012 @ 5:42pm

Missing step in flowchart
At the very end, there should be one final step:

Find a new place to host your photos.
[ link to this | view in thread ]
Anonymous Coward, 13 Mar 2012 @ 5:44pm

Re:
Then they are open to claims by Hollywood and others about how evil they are for not removing immediately the content and if they get forced to give out the logs ICE will be claiming that as proof of their intent to incentivize piracy.

Not defending Yahoo here, I know they are not that competent on the market right now and I agree that this is one reason why they get so hammered by everyone, the thing is there is another force that push them to do such things and they choose to do it in the most dumb way possible, but never the less there is one force exerting force for them to go in that direction and that is copyrights don't forget where all the evil come from.
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Anonymous Coward, 13 Mar 2012 @ 6:02pm

Re:
LOL you're onto something there!

They say nothing can screw things up like a computer. Watching the damage caused by companies royally screwing up automated "law enforcement" is sure to draw some eyeballs to the REAL problem.
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sevenof9fl (profile), 13 Mar 2012 @ 6:31pm

Flickr
I had trouble with Flickr's DCMA but it was in trying to convince them that someone had violated (stolen) someone else's work where I had no luck. I found the difference in treatment to be, of course, in how much money was donated to the pre-Yahoo people's favorite groups Charities (I am nothing if not thorough). The "artist" who stole the work was, big surprise, a major contributor to a big group's Charity. That was several years ago and occurred about the time Yahoo bought Flickr, but Flickr I understand still tries to solve its own problems (yeah, right). I think today's problems stem from the fact that they don't really understand their own rules or copyright in general; that was the impression I got when I tried to help a friend with stolen work. Of course I decided they were being deliberately stupid just to screw with me. Maybe they still are; they're just screwing with everyone.
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angry paywall bob darryl, 13 Mar 2012 @ 6:32pm

But but but piracy/paywalls/never the label's fault! There are so many DMCA notices that never go challenged so it MUST mean EVERY DMCA notice is not bogus. Why do you like piracy, Pirate Mike?

/sarc
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Anonymous Coward, 13 Mar 2012 @ 6:37pm

Fixing their little red wagon...
He really needed to record that phone call, upload it to YouTube, then link to it in posts on Facebook, Reddit, & Twitter. Then maybe the next time someone calls he will "know" the answers to some of those questions.
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Capitalist Lion Tamer (profile), 13 Mar 2012 @ 7:14pm

Re: The comedian
I am. But this is handy for those who may think this is just some Dave Gorman, rather than the Dave Gorman.
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umb231 (profile), 13 Mar 2012 @ 7:34pm

... if DMCA demands they return the content to where it was previously if it's shown to be a wrongful takedown, why don't they loose safe harbor for not complying with it?
I have that horrible sinking feeling it's because it'd help the user, not the copyright holder and thus no one cares enough to enforce it.
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Rekrul, 13 Mar 2012 @ 8:03pm

Following this disheartening phone call came Flickr's official response to Gorman's situation, and it appears that the photo service is not going to deal with this at all.

"After reviewing your recent correspondence, we have no further comments to make regarding this case, and consider it closed."

That's no way to run a social service on the internet.

The Internet Movie Database handles all user complaints in exactly the same manner.
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Anonymous Coward, 13 Mar 2012 @ 9:12pm

You're expecting too much from Yahoo
We all know that there's nobody left. Everyone who COULD leave has -- the senior talent is gone. Everyone who was considered expendable has been fired. The only ones left are the contractors, and as always, they were hired from the lowest bidder.
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Anonymous Coward, 13 Mar 2012 @ 11:40pm

Just Write the EFF
and tell them that Yahoo/Flickr doesn't want to respect the terms of the DMCA for a legitimate user of a online service.

:trollface.
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dcee (profile), 14 Mar 2012 @ 1:27am

Re:
Details? Links? Curiosity picked!
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dcee (profile), 14 Mar 2012 @ 1:28am

Re:
Details? Links? Curiosity picked!
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PaulT (profile), 14 Mar 2012 @ 1:58am

Re: Re:
I presume he's referring to this: http://en.wikipedia.org/wiki/Are_you_dave_gorman. Very funny if you get a chance to see it, IMHO at least.
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Anonymous Coward, 14 Mar 2012 @ 2:04am

Look at all the posts from Mike Masnick complaining about how the spirit and intent of the DMCA is broken every minute.

Oh wait, there aren't any.

Anybody know of any blogger on the web that loves piracy more than Mike Masnick?

And I'm curious, who pays for all this traveling he does when his site and front corporation don't do fuckall in views/business?

Hmmm?
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Anonymous Coward, 14 Mar 2012 @ 2:06am

Re: Re:
He means this: Are You Dave Gorman?
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Anonymous Coward, 14 Mar 2012 @ 3:31am

Re:
Someone very, very clearly doesn't read.
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Leander (profile), 14 Mar 2012 @ 3:44am

Re: Collateral damage
Well, I got a night's sleep to think about it, and decided to delete my flickr account. Flickr deserves to lose users over this. I'll find me a nice swedish photowebsite, they'll know what to do with a bogus DMCA takedown
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Dominic Sayers (profile), 14 Mar 2012 @ 4:21am

Re: Re: Collateral damage
Please don't delete your Flickr account or you make any inbound links to your photos invalid, which is the problem Dave Gorman is complaining about.

By all means abandon it and use another site, but leave the existing content where it is.
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Ninja (profile), 14 Mar 2012 @ 4:25am

Well, they lost 1 customer before even having him. Me. I'm planning to start a blog mainly aimed at photos I take and Flickr seemed to be a nice place with the possibility of applying Creative Commons licenses on the fly. Too bad.
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Anonymous Coward, 14 Mar 2012 @ 5:29am

Re:
I'm just going to leave this right here... hopefully it shuts you the fuck up. And I'm referring to the exact quotes on Mike, regarding his views on piracy.

http://www.techdirt.com/articles/20120309/18103118061/guess-what-copying-still-isnt-steal ing.shtml?threaded=true#c3016

If that doesn't and you don't say "I guess my previous statement is incorrect and I'm just anti-Mike because he speaks the truth and doesn't say what I want him to say." Well... then I guess you're an ignorant idiot who loves to spew FUD on a regular basis, rather than address any valid points or produce any facts/evidence to support your misbegotten and based on anything but reality opinions.
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TDR, 14 Mar 2012 @ 6:51am

"You always were an a**hole, Gorman." *BOOM!!*

Sorry, couldn't help it. Although in referring to this situation, the quote should refer to Flickr instead. ^_^
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Anonymous Coward, 14 Mar 2012 @ 7:03am

Re: Re: Re: Collateral damage
Is there anyway to add 301 redirects in place of the content?

(Sorry never used the service before.)
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MonkeyFracasJr (profile), 14 Mar 2012 @ 7:26am

Re:
As if a button the wraps the image tag or entire page content with is any more expensive than a delete button.

I suppose there is some overhead to keeping track of it.
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MonkeyFracasJr (profile), 14 Mar 2012 @ 7:28am

Re: Re:
Damn, lets try that again.

< div id = "hidden" style="display: none;" >
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That Anonymous Coward (profile), 14 Mar 2012 @ 8:51am

Re: Re:
I was being optimistic in how long it would take the inevitable lawsuit against the new thing to finally get done in the courts.
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That Anonymous Coward (profile), 14 Mar 2012 @ 9:00am

Re: Re:
Flickr is a service provider, and as I understand it, is supposed to be immune to being sued for users actions.

The bigger problem is that it is just easier now days to piss on the consumer simply because they can not possibly have any rights.

Look at Google/YouTube. The entire system they use is weighted towards benefiting only large copyright holding corporations. The law they are following was written by copyright holders, and its still not enough for them. They made "secret" deals behind the scenes and demanded Content ID (I'd love to know how much cash they put on the table to make Content ID work, guessing its $0). They were able to get Content ID not because it was a good system, but because they just promised to sue en-mass and try to kill Google. The presumption is only corporations can hold copyright, and it covers even a .03 second flicker of it.

When the costs of enforcement are shoveled onto a 3rd party, and nothing is contributed by the beneficiaries of the enforcement you look for ways to minimize what your having to pay.

Flickr is doing stupid things, but I doubt it is out of malice but more so trying to stay viable.
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That Anonymous Coward (profile), 14 Mar 2012 @ 9:02am

Re: Re: Re:
Someone would write an extension bypassing it and it would somehow all be Flickr's fault.

How they do it now is stupid, but seems to be the only real viable answer in the face of the stupidity that is copyright law currently.
[ link to this | view in thread ]
That Anonymous Coward (profile), 14 Mar 2012 @ 9:03am

Re: Re: Collateral damage
Maybe not Sweden, the US bullied them into planning another raid on TPB. They cave way to fast.
[ link to this | view in thread ]
Anonymous Coward, 14 Mar 2012 @ 10:44am

A horrible graphic that doesn't really explain anything.

Here's the issue: if Flickr gets a DMCA notice, they have OPTIONS as to what to do. Certain options may increase their liablity, certain minimize their risk.

Basically, Flickr minimizes their legal risk. If you want to take up the copyright issue with the claimant, go ahead. That is your business. Flickr is doing what is right for Flickr, and yes, you are getting the full service that you pay for from them - aka, you ain't paying, quit yer bitchin'!

It's not hard to understand what Flickr is doing. I hope they tell this guy to pound sand.
[ link to this | view in thread ]
Anonymous Coward, 14 Mar 2012 @ 3:03pm

Re:
Guess you didn't read the linked blogpost...

1) He pays for a Pro account
2) He responded to the copyright issue when he found out, which was after Flickr deleted the picture and all associated comments on the page.
3) The DMCA notice was quickly found to be completely bogus.
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 14 Mar 2012 @ 6:30pm

Re:
I don't normally pile on, but you honestly have every single one of the details wrong. Next time (and I'm sure there will be a "next time") get the facts straight before you start carelessly blaming the victim/critiquing the artwork.
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Dave Gorman, 15 Mar 2012 @ 2:51am

Re:
"Here's the issue: if Flickr gets a DMCA notice, they have OPTIONS as to what to do. Certain options may increase their liablity, certain minimize their risk."

Disabling access to the photo would do nought to increase their risk. It's entirely possible and is one of their options.

Deleting the comments does nothing to minimise their risk. It's completely unnecessary

"Flickr is doing what is right for Flickr, and yes, you are getting the full service that you pay for from them - aka, you ain't paying, quit yer bitchin'!"

I pay for it. Like millions of other users, I have a 'pro' (paid for) account.

But really... if a free service deleted stuff they didn't have to, you'd be okay with that? Sucks to be you.
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Anonymous Coward, 15 Mar 2012 @ 5:05am

Re:
You're not poker playing SC2 rekrul are you?
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Anonymous Coward, 15 Mar 2012 @ 7:11am

Re: Re: Re:
Alhough I think the correct plural is actually Dave Gormen.
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Rekrul, 15 Mar 2012 @ 8:26am

Re: Re:
Nope, sorry.
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Bergman (profile), 15 Mar 2012 @ 8:35am

It's true that replacing an account is different than replacing a page. Replacing an account is more difficult than replacing a page, because an account includes encrypted data (passwords, for example) and a page does not.

So it's perfectly reasonable for them to claim they can't replace a page but can easily replace an acc...wait...
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