Unfortunate: Kickstarter's Overaggressive Reaction To DMCA Notices

from the could-be-handled-much-better dept

Mon, Sep 24th 2012 12:40pm — Mike Masnick

Tim K alerts us to an interesting story at Wired concerning how Kickstarter handles DMCA takedown notices. The answer: not well. It seems to take DMCA notices at face value... and then immediately make the project disappear. It does not put up a notice that the project was taken down due to a DMCA notice. It does not alert backers of the project. It does not make it easy for the project owner to alert the backers of the project, or to accelerate the counternotice process. This is unfortunate.

While the story mentions that Kickstarter has disappeared at least 5 projects due to DMCA takedowns, the one it focuses on is a very recent one -- a project by a new design company called Vinted Bags, makers of interesting vintage-style leather goods (the same business my grandfather was in -- though, when he did it, the products weren't "vintage"). Vinted had put up a Kickstarter project that blew past its target, and seemed to get plenty of attention. And then, just hours before it was funded, it disappeared, replaced with a page that says: "Sorry, this project is no longer available."

This is the same Kickstarter who also claims:

Projects are not closed or taken down, they remain on site for reference and transparency.

For the same reasons, projects cannot be deleted, even if they were canceled or unsuccessful.

Except, apparently, if someone files a hugely questionable DMCA takedown... The Vinted team provides some troubling background info on its own site. First, it notes that two Vinted designers did an unpaid internship with a bag company, where they worked and learned for a few months, considering the founder of that company to be a mentor. Months later, after that internship had ended, they founded Vinted. They worked on that for a while, and it was only once the Kickstarter project took off and got attention that suddenly the legal threat showed up:

Then we received a letter from a law firm; a cease and desist letter from the mentor with threats to sue. We were very surprised. It consisted accusations of infringement from the mentor. He laid claims to a number of our designs such as our website utilizing a top navigation bar, our photo of the designer operating a sewing machine, etc.

Note that there are no accusations concerning the products themselves. While Vinted doesn't name the guy, the Wired article names Spencer Nikosey, who runs Killspencer. Looking over their products, there doesn't seem to be any copying there. While there are a few similar bags, they are pretty standard and Vinted's are distinguished by their use of leather patches. In terms of website design, there are some similarities, but nothing that should come close to meeting the qualifications to be copyrighted (remember, copyright covers the actual expression, not the idea). Ditto a photo of the designer operating a sewing machine, which is obviously not infringing. Even if the ideas are similar, that's not infringement.

And yet... Kickstarter took the project down. Again, I'm having trouble understanding why it would do so. You might be able to make an argument that if Spencer Nikosey had claimed that the products themselves were infringing, Kickstarter should take it down -- but even then, there should be a clear notification from Kickstarter to its users about what happened, as well as a notice on the site (a la YouTube) highlighting why the project no longer existed.

But, in this case, even that doesn't apply, because there is no infringement in the product. Instead, the concerns appear to be about web design and how the company is presenting itself. But Kickstarter doesn't host Vinted's website. And if there was concern about certain images, at most, Kickstarter should just remove the image in question, rather than the entire project. The whole thing seems quite crazy and a case where Kickstarter both could have and should have stood up for itself, for Vinted and for its users, and told Nikosey "too bad." Instead it pulled the project.

Vinted has filed a counternotice, and Kickstarter passed it on to Nikosey. If Kickstarter is following the DMCA counternotice process, it should put Vinted's project back online on September 27th -- unless Nikosey goes to court and files a lawsuit against Vinted, seeking an injunction barring the return of the campaign. Of course, Kickstarter could also realize that the original takedown appeared questionable and put the campaign back. What's not clear, however, is how that would work. There were just a few hours left in the campaign before the plug was pulled. Would they put it back with a few more hours? A few extra days? Or would they just charge those who bid? Hopefully they can put it back, and didn't just delete the whole thing.

Looking over the details, it's difficult to see this as anything other than yet another in a long line of unfortunate examples of companies or individuals using the DMCA to stifle competition, rather than for any sort of legitimate purpose. That Kickstarter is complicit in this process is unfortunate, because it need not be. There are better ways to handle such situations and it's a shame Kickstarter has chosen not to do so.

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Filed Under: bags, counternotic, crowdfunding, dmca, takedowns
Companies: kickstarter, killspencer, vinted bags

40 Comments

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Anonymous Coward, 24 Sep 2012 @ 12:48pm

They can always switch to indiegogo.
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average_joe (profile), 24 Sep 2012 @ 12:57pm

File under: "bags"? Huh?
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Lowestofthekeys (profile), 24 Sep 2012 @ 1:02pm

The real problem lies in the copyright lawsuits being throw out all will-nilly. Companies like Kickstarter, Google and Zazzle which operate on constantly changing content have to bend over backwards for a group of corporations that use the government as a handpuppet.

I guess that means the government is also getting diddled.
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Tim K (profile), 24 Sep 2012 @ 1:03pm

Re:
Vinted Bags, the company that was doing the Kickstarter...
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E. Zachary Knight (profile), 24 Sep 2012 @ 1:05pm

Re:
Seriously? That is the point of attack you are taking? You can't actually attack the meat of the article so you focus on an obscure classification (which might be a typo anyway)?
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Tunnen (profile), 24 Sep 2012 @ 1:07pm

Isn't this the purpose of the DMCA law? To squash the little guys for the betterment of the established players?

I've seen it said a few times and still chuckle, DMCA = Don't Mess with Corporate America.

=P
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Anonymous Coward, 24 Sep 2012 @ 1:09pm

Re:
I think that as more companies like Kickstarter follow the rule of the law, it'll get to a point where they have a massive portfolio of ridiculous takedowns and say, "Look, lads - this DMCA is not going to work."

Of course, when that happens I expect the usual trolls to call Kickstarter a pirate haven or something.
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Tunnen (profile), 24 Sep 2012 @ 1:10pm

Re: Re:
Well, I'm sure the point was in the bag, so he'd have to attack the bag to get to the point?

Only to then still miss it completely... =P
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biff Malibu, 24 Sep 2012 @ 1:18pm

Sue everybody. That's the way it works now a days. And why every thing is a mess.
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average_joe (profile), 24 Sep 2012 @ 1:26pm

Re: Re:
Seriously? That is the point of attack you are taking?

Not an attack. I clicked on the "bags" link and found there isn't even one other article labeled as such. Just curious. Maybe Mike plans a series of post about bags.
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Lowestofthekeys (profile), 24 Sep 2012 @ 1:33pm

Re: Re:
I really hope they are keeping detailed reports about this kind of thing.

Copyright law may not be the factor causing this, but it's definitely being used to cultivate this kind of mentality.
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More_Average_Than_You, 24 Sep 2012 @ 1:37pm

Re: Re: Re:
I'd guess it's in case there's a followup story.
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Lowestofthekeys (profile), 24 Sep 2012 @ 1:39pm

Re: Re: Re:
Joe, its time to redo your reputation around here.

I suggest making a hilarious mspaint design for the TD shop that adequately sums up your distaste for pirate apologists.
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Anonymous Coward, 24 Sep 2012 @ 1:42pm

"He laid claims to a number of our designs such as our website utilizing a top navigation bar"

OMG, that's DEFINITELY worthy of a few decades of IP protections! No way would have someone thought of putting the navigation bar at the TOP of the page instead of somewhere else like the left or right side of the page!
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Anonymous Coward, 24 Sep 2012 @ 2:17pm

Copy'right' has no place in society and we should abolish it.
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Anonymous Coward, 24 Sep 2012 @ 2:20pm

Re:
"The real problem lies in the copyright lawsuits being throw out all will-nilly."

The real problem is in the one sided penalty structure. It's not Kickstarter's fault, it's the law's fault. If you falsely claim infringement you would be lucky to get a slap on the wrist. If you don't respond promptly to potential infringement you can easily get sued out of business.

This one sided penalty structure needs to change.
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Anonymous Coward, 24 Sep 2012 @ 2:23pm

Re: Re:
and Mike needs to stop blaming Kickstarter, Google, and others for the failures of our legal system. This is the fault of our legal system and of those who abuse the legal system by falsely submitting takedown notices, not of kcikstarter, Google, and other victims. Kickstarter is not to blame, stop blaming them. Direct your criticism towards our broken legal system and towards those who abuse it.
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Anonymous Coward, 24 Sep 2012 @ 2:23pm

+1 for the good guys :D
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Anonymous Coward, 24 Sep 2012 @ 3:09pm

Re: Re: Re:
The only criticism was that Kickstarter went overboard with their compliance without even sending out a notice to the contributors. He pointed out that they could have easily complied with the DMCA notice without taking the drastic measures that they did.

Yes, the law is to blame, but it wasn't a consumer-friendly move on Kickstarter's part.
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Anonymous Coward, 24 Sep 2012 @ 5:39pm

Re: Re: Re: Re:
I agree there, everyone should know why the project was removed and who issued the takedown notice.
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Anonymous Coward, 24 Sep 2012 @ 6:12pm

"Of course, Kickstarter could also realize that the original takedown appeared questionable and put the campaign back."

Apply your own stupid logic here Mike: How can they know that it's questionable? Are you asking Kickstarter to suddenly be a judge, to be an omnipitant being that can somehow magically determine the validity of a takedown all by themselves?

Wow. Perhaps they can teach YouTube and Fat Kim about copyright too!

If you are going to try to make a point, try not to make yourself look like an ass while doing it.
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Anonymous Coward, 24 Sep 2012 @ 6:19pm

kickstarter is going down the toobs. :(
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Brendan (profile), 24 Sep 2012 @ 9:35pm

Re: Re: Re:
Its just a tag for the article. Every tag needs to have a first article using it at some point.

You need to chill out a few notches.
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Anonymous Coward, 24 Sep 2012 @ 11:08pm

Since Kickstarter facilitates funding for projects, collecting money, distributing and taking a fee, doesn't it have a fiduciary duty towards the projects and investors? That should prevent reactionary measures.

This isn't youtube and prince music with cats dancing, it is $$$.
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G Thompson (profile), 24 Sep 2012 @ 11:18pm

Re: Re: Re:
umm metatags don't magically appear they need to be STARTED sometime. ie: this is the first usage..

Hooray for the metatag of bags! May it have a long and fruitful life

In other news *facepalm*
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Jessica Lohse, 25 Sep 2012 @ 4:06am

Not Infringement Unless A JUDGE Decides It!
If the project owners are not proven guilty in a court of law, Kickstarter's policy could incriminate itself. Policy does not make it legal. It may be their service and their T's & C's agreed to, but is it legal?

I'd be interested to hear what a legal specialist has to say about it.

It involves investor donations and capital. Some of these projects are headed by people that are freelancers and receive a wage and are taxed for the hours put in on the project. Kickstarter is removing projects for infringement **CLAIMS** which have not been considered by any judiciary decision makers.

If the claimant is not willing to put it before a judge, Kickstarter should wait until the process has proved the project owner(s) guilty. In which case, it is a civil or criminal case? If it is a civil case and a judge orders the removal of a project from Kickstarter, only then is Kickstarter required by law to remove the project.

Kickstarter, please wise up. Your entire ideal is based on the opposite of your actions. This is a ham-fisted approach to a basic problem.
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Anonymous Coward, 25 Sep 2012 @ 8:26am

Re:
All the cool kids put the navigation bar right in the center. Vertically oriented, of course.
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MrWilson, 25 Sep 2012 @ 8:30am

Re: Re: Re: Re:
"Metatagging is only done by pirates... and pirate-apologists... and pirate-apologizing librarians... and people with strong information literacy skills... amongst people who use metatagging are pirates and pirate-apo... I'll come in again..."

Everybody expects the troll inquisition these days.
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Charles, 3 Oct 2012 @ 1:16am

I know both parties in this case and I did think that Vinted basically replicated almost everything they learned from Killspencer (even how they promoted their products and the feel of the brand, not to mention that they go after the exact same target buyer) and just changed the design a little bit which honestly I did find a bit distasteful; however the whole lawsuit situation I think is really going overboard.
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Geoff Beckett, 21 Oct 2012 @ 5:35am

indiegogo
On the same note indiegogo removed our page due to some crazy persons false accusations. The persons email was full of rants and they admitted they were a bias despite customer fact we had never had any dealings with them. They also kept the Paypal fees they took from us and deleted our account. We were just starting to gain momentum and now that is destroyed and they would not provide any reasons sans they determined the project was to risky. We had tooling finished and were ready to produce 5 action figures with our pledges help.
[ link to this | view in thread ]
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[ link to this | view in thread ]
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Leather Manufacturer Producer & Exporter.
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