Universal Music Uses Bogus DMCA Claim To Take Down Negative Review Of Drake's Album

from the free-speech? dept

Wed, Aug 15th 2012 9:50am — Mike Masnick

We keep talking about how the DMCA takedown process, all too frequently, is used to stifle speech, and defenders of the system claim that it's ridiculous to bring up the First Amendment in a discussion on copyright. But here's yet another (in a very long list) of examples. Henry Adaso wrote a short, but marginally negative review of Drake's album Take Care. The review was posted to About.com last November. The entire review reads:

Drake - 'Take Care'

A briefly entertaining, occasionally ponderous, sometimes lazy, sometimes brilliant, slow-rolling, rap-singy, bulls-eye missing, kitten-friendly, runway-ready, mega corny, lip-smacking, self-conscious, self-correcting, self-indulging, finely tuned, Houston infatuated, crowd pleasing, delightfully weird, emotionally raw, limp, wet, innocuous, cute, plush, brooding, musical, whimsical, exotic, pensive, V-necked, quasi-American, strutting, doting, cloying, safe alternative to sleeping pills.

Best Song: "Lord Knows"

Release Date: November 15, 2011

Not particularly positive, but not particularly scathing either. He also posted another post on About.com that merely pointed to that review, but included no additional content other than that he wrote a 50-word review.

Either way, both of those links are gone from Google's search. Why? Because just as someone filed a bogus DMCA to take down one of our key SOPA posts, Universal Music, via the BPI (British RIAA) filed a DMCA notice with Google claiming that both of those pages were infringing. That's clearly a false takedown, and pretty clearly designed to stifle a negative review.

Adaso discusses all of this in his own blog post, in which he suggests that perhaps Universal and BMI are purposely trying to take down negative reviews, though it's equally likely that they're just incredibly incompetent. Still, whether incompetence or malice, it's clear that the DMCA is being used to censor and stifle speech, and in this case it just so happens to be speech in the form of a negative review of a Universal Music Artist (a Universal Music artist who has also expressed displeasure with how Universal has used copyright law against his own best interests).

But, no, there's no free speech concerns around the DMCA, right?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, dmca, drake, free speech, review, take down
Companies: bpi, universal music

67 Comments

If you liked this post, you may also be interested in...

Reader Comments

The First Word

“

DMCA: Don't Mess with Corporate America.

—Mesonoxian Eve

”

Subscribe: RSS

View by: Time | Thread

Mesonoxian Eve (profile), 15 Aug 2012 @ 9:57am

DMCA: Don't Mess with Corporate America.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 10:05am

You know what this needs? More Cowbell
I am forming the DMCA: Doing More Cowbell for America

Who's with me? We will DMCA the HELL out of everyone...

Who doesn't need more cowbell?
[ link to this | view in thread ]
Killer_Tofu (profile), 15 Aug 2012 @ 10:13am

Proof Positive
This is just direct proof that Google messing with its search results because somebody files a DMCA takedown against a site is an absolutely horrible idea.

Don't think I will be using google for searching anymore. If they mess with results because of stuff like this, I am sure they mess with their search results in other ways too. So much for customer oriented.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 10:16am

the BPI is just as corrupt an organisation as the RIAA, the MAFIAA and the MPAA. they will do anything and say anything to achieve their aims, whilst lying through their teeth to prevent anyone doing something they dont like and getting a person jailed!
[ link to this | view in thread ]
Ninja (profile), 15 Aug 2012 @ 10:18am

Re:
Brilliant! how the fck haven't we noticed that before?
[ link to this | view in thread ]
Ninja (profile), 15 Aug 2012 @ 10:21am

Re:
Any MAFIAA affiliate or subsidiary. I'm still enraged at what I've read from STC case (http://www.surfthechannel.com/)
[ link to this | view in thread ]
Machin Shin (profile), 15 Aug 2012 @ 10:22am

Re: Proof Positive
I'm finding the idea of peer-to-peer search engines more and more appealing. Google is showing they are far too concerned with making certain groups happy instead of just providing accurate searches.

I guess one good thing about it though is that the more people they chase away the better the peer-to-peer options will become. That is the fun of peer-to-peer, they always suck to start with as there are too few peers, but if you can get them to reach that tipping point and become mainstream they become great.
[ link to this | view in thread ]
Ninja (profile), 15 Aug 2012 @ 10:23am

Re: Proof Positive
To their (Google) credit they said VALID DMCA notices. Still, considering the volume, how much effort will they spend checking if every takedown is valid?
[ link to this | view in thread ]
Ninja (profile), 15 Aug 2012 @ 10:25am

Troll bait
Come on shills, show us your twisted logic and defend this =)

"Pirate Mike and his freetard piracy apologists are just conspiring to defraud the labels just to have their free content." am I correct?
[ link to this | view in thread ]
drew (profile), 15 Aug 2012 @ 10:38am

Old browser poo.
Sadly I can't see the embed on this machine but I would generally start with Hanlon's Razor
[ link to this | view in thread ]
Loki, 15 Aug 2012 @ 10:39am

And some people wonder (like in the case of the Bow Wow video that used images from another video) why people are unwilling to give Universal the benefit of the doubt anymore.

Maybe these people should trying reading a little story called The Boy who Cried Wolf.
[ link to this | view in thread ]
Mesonoxian Eve (profile), 15 Aug 2012 @ 10:42am

Re: Re:
I've been using this since 1997, when I was introduced to the DMCA's legislation and copyright abuse in general.

Ever since then, I've been doing my part to help the good fight, especially since it affects my position.

I've always raised the warning it won't be too much longer before corporate interests start trying to take over the internet, and this is just another example of the warning.

It comes as no surprise, either, since they see this as a method of distribution, and not communication.

Through distribution, they've always tried to control what we see, hear, and read.

Should this news be of any surprise? Of course not.

Yet, we still lack the laws to prevent corporations from trying to take it over.

That's when I came up with the slogan. ;)
[ link to this | view in thread ]
Ben S (profile), 15 Aug 2012 @ 10:56am

Re: Old browser poo.
I was going to say the same thing, but it looks like you've got it covered.
[ link to this | view in thread ]
Karim, 15 Aug 2012 @ 10:57am

But that's only fair!
Oooh, but one bad review == a shitload of lost sales. That is clearly a crime.

Since people sometimes talk about stuff they read on the web, we can state with absolute certainty that one pageview equals five lost sales.

Since the review is on the Internet, we can state with absolute certainty that the review has been read by 1.4 Squillion pira- erm, people - Who will (as we have already proved, see above) cause at least 5 other people to not buy the record.

Therefore, our minimum losses are:

$12.99 * (1 Sqn * 5) = 7.6867 Myxonatophrilllian dollars

But you can't do math, can you freetards?
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 11:02am

I wonder if you attempted to contact UM to try and determine how such notices are created in the first instance? Frankly, the list looks as if it was automatically created using unspecified software to comb the web.
[ link to this | view in thread ]
Zakida Paul (profile), 15 Aug 2012 @ 11:03am

Here's my review
The album is shite, don't buy it.

Expect a DMCA takedown request soon.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 11:03am

Re: You know what this needs? More Cowbell
Drinking More Coke in Arkasas
[ link to this | view in thread ]
surfer (profile), 15 Aug 2012 @ 11:06am

Looks like an incredible shitty piece of software identified anything with 'drake', 'take', and 'care' in the URL.
[ link to this | view in thread ]
Chris-Mouse (profile), 15 Aug 2012 @ 11:11am

Re: Re: Proof Positive
if Google didn't consider the DMCA notice valid, why was the review removed from the search results?
It sure looks like Google has decided that keeping the RIAA happy is more important than keeping the internet audience available for advertisers.
[ link to this | view in thread ]
Ninja (profile), 15 Aug 2012 @ 11:16am

Re: Re: Re:
That's my first time reading it so please excuse me. This news itself is not a surprise indeed.

Mind if I blatantly copy your slogan? ;D
[ link to this | view in thread ]
MahaliaShere (profile), 15 Aug 2012 @ 11:19am

Dumb
Now see, this is just going to prompt people to leave negative reviews all over the place. Way to go. *claps*
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 11:22am

Re:
LOL Best TD comment of 2012!
[ link to this | view in thread ]
Mesonoxian Eve (profile), 15 Aug 2012 @ 11:24am

Re: Re: Re: Re:
Absolutely. No restrictions. Pass it around. :)
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 11:34am

Re:
Please direct me to the software that can swear things under penalty of perjury.
[ link to this | view in thread ]
Berenerd (profile), 15 Aug 2012 @ 11:34am

Re:
We so need a "Sad but True" button
[ link to this | view in thread ]
Berenerd (profile), 15 Aug 2012 @ 11:34am

Re:
We so need a "Sad but True" button but then Metallica would come after us...
[ link to this | view in thread ]
Mike Masnick (profile), 15 Aug 2012 @ 11:40am

Re:
I wonder if you attempted to contact UM to try and determine how such notices are created in the first instance?

Last time I contacted them for comment on a story, they gave the details I asked about to a "friendly" industry lawyer, who wrote up a different story that got published in another source specifically bashing me and trying to pre-diffuse my story exposing something they were doing.

Going to them for a comment is not exactly a reasonable move. If they have a comment, they're free to comment here in the comments or on their own blog.

Frankly, the list looks as if it was automatically created using unspecified software to comb the web.

Which, er, is unacceptable when filing DMCA takedown notices that are designed to censor information.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 11:45am

Re: Re:
Please direct me to the software that can swear things under penalty of perjury.

�False Affidavits in Foreclosures: What the Robo-Signing Mess Means for Homeowners� by Stephen Elias, Nolo

What Is Robo-Signing?

�.�.�.�.

It came to light that several large banks routinely used affidavits signed by employees who did not personally review the documents and had no basis for believing that the homeowner was in default or that the bank owned the loan. Employees for financial giants like Bank of America, JP Morgan Chase, Wells Fargo, and GMAC have all testified that they signed many thousands of affidavits a month, spending about 30 seconds on each affidavit, and that they didn't have a clue regarding the veracity of the affidavit or the documents in question -- hence the name "robo-signers."
[ link to this | view in thread ]
weneedhelp (profile), 15 Aug 2012 @ 11:48am

Re: Re:
Metalliwho?
[ link to this | view in thread ]
weneedhelp (profile), 15 Aug 2012 @ 12:01pm

Re:
"Under penalty of perjury I certify that the information contained in the notification is both true and accurate, and I have the authority to act on behalf of the owner of the copyright(s) involved."

"if it was automatically created"
Does not matter if a billy goat initiated the request it is the accuser that needs to confirm if their request is accurate.

In case you missed it:
Under penalty of perjury I certify that the information contained in the notification is both true and accurate.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 12:12pm

Re: Re: You know what this needs? More Cowbell
Da Fuq is wrong with you....It's Arkansas and we have Chickens, not Cows.
[ link to this | view in thread ]
Tunnen (profile), 15 Aug 2012 @ 12:13pm

Re: Re:
Under penalty of perjury I certify that the information contained in the notification is both true and accurate.

That only applies to non-corporate people, not corporations.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 12:33pm

Re: Re: Re: Proof Positive
Seems like evil to me.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 12:38pm

Re:
What a sucky job for a programmer.
[ link to this | view in thread ]
Berenerd (profile), 15 Aug 2012 @ 12:40pm

Re: Re:
I have not compiled it yes but here it is in BASIC

10 prt "I swear under penalty of perjury"
20 end

What do I get?
[ link to this | view in thread ]
Killer_Tofu (profile), 15 Aug 2012 @ 12:44pm

Re: Re: Proof Positive
My response to the valid DMCA notices is the same as Chris-Mouse's. If Google didn't think this was valid they wouldn't have removed it from the search results. Nuff said.
[ link to this | view in thread ]
I Need More Allowance, 15 Aug 2012 @ 12:48pm

Re: Proof Positive
Of course they mess with their search results in other ways. Look at the way they removed firearm (and firearm related results) from their shopping area.

�All of the items in your feed must be in compliance with Google Shopping policies,� the company said on the site�s support center. �In particular, all items have to be family safe.�

I started shooting in the single digit years, with family. Guess they're censoring what 'family safe' actually means.
[ link to this | view in thread ]
I Need More Allowance, 15 Aug 2012 @ 12:49pm

Re: Proof Positive
Of course they mess with their search results in other ways. Look at the way they removed firearm (and firearm related results) from their shopping area.

�All of the items in your feed must be in compliance with Google Shopping policies,� the company said on the site�s support center. �In particular, all items have to be family safe.�

I started shooting in the single digit years, with family. Guess they're redefining what 'family safe' actually means to their own standards.

That's fine. I'm going to redefine what 'best search engine' actually is, based on this kind of criteria.
[ link to this | view in thread ]
surfer (profile), 15 Aug 2012 @ 12:50pm

Re: Re:
They probably used Google Apps.
[ link to this | view in thread ]
Killer_Tofu (profile), 15 Aug 2012 @ 12:52pm

Re: Troll bait
Their usual response to something like would be AC Trope number 4) There must be more to this story we aren't hearing.

(Not sure if there are actual tropes number related, its just one of their "I can't really defend this" defenses.
[ link to this | view in thread ]
Todd E, 15 Aug 2012 @ 1:06pm

Re: Re: You know what this needs? More Cowbell
Sadly, this is fairly accurate. People are pretty religious about their coca-cola drinking habits here in AR.
[ link to this | view in thread ]
Chris-Mouse (profile), 15 Aug 2012 @ 1:14pm

Can a third party bring charges of perjury?
According to the DMCA, section 512(c)
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed.

It seems to me that Henry Adaso might have a good case for enforcing that part of the DMCA that is supposed to ensure that the DMCA isn't abused. The question is, can he bring charges, or must the court do that? The next question is whether or not there's enough money available to pay the legal bills needed to see this case through to the supreme court of needed.
[ link to this | view in thread ]
anon, 15 Aug 2012 @ 1:42pm

Please
Can someone please explain why they are not being taken to court for things like this. I mean a pirate is not affecting anyone, he is downloading ones and zeros he probably would not have paid for and pirates are getting jail time, this is stiffening speech and knowingly going against what the DMCA is for, it is illegal under the terms of every DMCA every signed. Should there not be court cases all over the place, where those found guilty, which I think in this case would be rather easy, are fined or forced to pay restitution of a few million to the person they have illegally declared is committing a crime. There is a reason the DMCA is worded the way it is to protect people from this happening to them. So why no court cases yet.
[ link to this | view in thread ]
anon, 15 Aug 2012 @ 1:49pm

Re: Re: Re:
One thing that came out of this though is that most homeowners that lost there houses in this way are able to claim back just over $100 000 i think , i may be wrong but i am sure i did read something like that somewhere, something about people not being made aware that they could claim so much back because of the illegal activities by the banks in using untrained people to just sign forms they knew nothing about.
[ link to this | view in thread ]
anon, 15 Aug 2012 @ 1:52pm

Re: Re: Re:
I hope you are joking, no seriously you are joking right :)
[ link to this | view in thread ]
drew (profile), 15 Aug 2012 @ 1:54pm

Re: Re: Re:
Still no Sad but True button :~(
[ link to this | view in thread ]
Marcel de Jong (profile), 15 Aug 2012 @ 2:07pm

If the big labels can't be arsed to respect the laws around the DMCA, why should we respect the law around copyright?
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 2:50pm

Too bad Drake-Take-Care isn't in the URL for this post. It'd be a nice experiment.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 3:07pm

Re: Re: Troll bait
Yeah, it's funny how the anti-techdirt trolls try to defend the indefenseable without providing a counterpoint.

And then they accuse Mike of saying "you're wrong because you're wrong" despite the fact that's all they do!

Judge not MPRIAA shills lest ye be judged
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 3:09pm

Re: Re: Re:
A handfull of granola
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 3:14pm

Re:
Say, did anyone get the DRAKE TAKE CARE FULL ALBUM?

Also would it be a waste of time to watch THE COMPLETE DARK KNIGT RISES MOVIE?
[ link to this | view in thread ]
Khaim (profile), 15 Aug 2012 @ 6:16pm

Re: Firearms
I don't think that's "censoring" so much as "defining". And as a company, they can decide to exclude whatever goods they like. Are you equally upset over their refusal to list sex toys? Do you really feel that Google has a duty to treat all goods equally, or are you just mad because they took down something you like?
[ link to this | view in thread ]
Khaim (profile), 15 Aug 2012 @ 6:17pm

Re: Perjury
And how many people have gone to jail because they perjured themselves on a faulty DMCA notice?
[ link to this | view in thread ]
Khaim (profile), 15 Aug 2012 @ 6:21pm

Re: Can a third party bring charges of perjury?
I'm not sure who actually has standing to sue for perjury. I'm pretty sure Henry can't sue UM though - but he might be able to sue Google, and Google can probably sue UM if it wanted to. Of course that's not going to happen, since Google wants to set up their online store to compete with iTunes, which is kind of hard if you sue a big music company over a "misunderstanding".
[ link to this | view in thread ]
Rapnel (profile), 15 Aug 2012 @ 6:58pm

Re: Re: Perjury
This one I know - it's label maths. That band made no money, didn't do drugs, did not do jail time, did not break even and will be forgotten in no time. They still owe us 10 large.

So... minus 10 thousand!
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 7:32pm

Re: Re: Re:
I think Metallica used to be a band or something. They weren't on iTunes so they must have had trouble converting their music from 78's.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 7:34pm

Re: Re: Re: Proof Positive
No Google automated it. They figure if the owner doesn't complain it must be infringing.
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 7:45pm

Re: Re: Can a third party bring charges of perjury?
So Google and UM have entered into a conspiracy to stifle the right to free speech of Henry. I think he may be able to sue both of them.

The best way out of this is for Google to buy the recording industry and run it honestly. That would certainly be less evil than working with it.
[ link to this | view in thread ]
Jamie, 15 Aug 2012 @ 8:01pm

Re: Re: Re: Re:
Didn't they play at Lollapalooza in the 90's or something?

Or maybe it was that band that was covering Marylin Manson.
[ link to this | view in thread ]
That Anonymous Coward (profile), 15 Aug 2012 @ 11:40pm

Re: Re: Re: Can a third party bring charges of perjury?
You mean like UM having special rights to take down videos they dislike from YouTube because of a special agreement no one else gets to see?

Its like there was a lawsuit over it that got stopped when the cartels made a final payment to the DoJ.
[ link to this | view in thread ]
Ophelia Millais (profile), 16 Aug 2012 @ 12:14am

Re: Please
Three reasons:

1. There's arguably no harm done (financial harm, I mean). Info about a negative review disappeared from one search engine's index. So what? A counterclaim is filed, they figure out it's a false positive, eventually it reappears in the search results, problem solved.

2. If there was harm, the person who was harmed has to be the one to file the lawsuit. Who would that be? Not the users of the search engine. The writer of the review? They were probably paid a flat fee already; they haven't lost anything. The publisher of the review? I'm skeptical they could say that Universal getting one of their pages deleted from Google search results could be tied to a dollar amount worth pursuing in court.

3. There's no way to prove the false takedown was issued "knowingly", which the DMCA requires for action to be taken against the issuer. Just because the takedown had the effect of censorship doesn't mean Universal knew the takedown was bogus. Maybe discovery would reveal some internal memos saying "we gotta get these bad reviews to stop showing up in Google's search results", but by the time you get to that phase, you've committed to an expensive litigation process.

(Universal would also probably argue it was an honest mistake, and that the bad review itself wasn't censored, only its appearance in one search engine's index�and thus it isn't really censorship.)
[ link to this | view in thread ]
Ophelia Millais (profile), 16 Aug 2012 @ 12:28am

Re: Re:
I noticed I can sign up for a FREE Rap / Hip-Hop Newsletter on the page on which the actual Drake review appears.
[ link to this | view in thread ]
Ophelia Millais (profile), 16 Aug 2012 @ 12:42am

Re: Please
You refer to "jail time", "those found guilty", and "committing a crime". Issuing a false takedown is not, per se, a crime for which one can be charged (accused of) by the government in criminal court, with fines and incarceration as potential outcomes. Rather, the DMCA only provides for a civil penalty for a false takedown notice. That is, the issuer can be sued by someone who has suffered harm as a result of the ("knowingly"-issued) false takedown, and then perhaps in court found liable for damages, if the case even goes to trial. The potential outcomes may involve owing a large sum of money to the plaintiff, but do not include jail time.
[ link to this | view in thread ]
Ophelia Millais (profile), 16 Aug 2012 @ 1:06am

Re: Re: Please
Re: #2 above, I meant to say that the only person with standing to sue under 17 US � 512(f) would be the alleged infringer. In this case, since the review wasn't user-uploaded content, it would be the review's publisher, the New York Times Company, which owns About.com. I'd say the chances of the NYTC suing the BPI or Universal over something like this are pretty slim. If it were affecting news articles on nytimes.com, maybe the story would be different.
[ link to this | view in thread ]
Ninja (profile), 16 Aug 2012 @ 2:58am

Re: Re: Re: Proof Positive
That's the thing, if they consider this to be valid then it's time to move on with their search engine. I was very annoyed yesterday, there were 2 videos I tried to watch on Youtube that were parodies/remixed content for the lulz and they were taken down by some idiot DMCA notice. It is ANNOYING. I'm trying to switch to dailimotion.
[ link to this | view in thread ]
Mr. Applegate, 16 Aug 2012 @ 6:24am

This is why there should always be checks and balances. In the case of DMCA, the request should have to goto a judge (or some neutral third party) for approval, frivolous requests should be stiffly fined.

Leave it to the government to ruin everything, they only listen to those filling their coffers (aka war chests) with cash.
[ link to this | view in thread ]
I Need More Allowance, 16 Aug 2012 @ 6:36am

Re: Re: Firearms
I accidentally clicked post as I was reviewing my article. Hence the double tap here. The lower version of this post is more in line with my thinking.

While I don't think I'd have an emotional response if it was something I didn't care about, I still think that Google has a duty to treat all goods equally (though I'd probably base it more on legality than some arbitrary "family values" BS).
[ link to this | view in thread ]