DMCA As Censorship: Site Reposts Articles About Disgraced Researcher, Claims Copyright, Has Originals Removed

from the incredible dept

Wed, Feb 6th 2013 11:36am — Mike Masnick

I first heard about the excellent site RetractionWatch via a segment on On the Media. The RetractionWatch site, put together by Reuters Health executive editor (and doctor) Ivan Oransky and Anesthesiology News managing editor Adam Marcus, does what you'd expect from the name. It covers scientific research that is retracted. Since there have been an increasing numbers of stories of academic research fraud exposed, and the pair felt that the "retractions" often were buried, despite questionable circumstances, they started collecting such information. It's a really useful site.

Yesterday, however, they pointed to something odd happening. They were alerted, via their hosting company Automattic (who runs WordPress.com), that it had received a DMCA takedown notice concerning ten posts they had done about researcher Anil Potti. They found that odd, considering that the content they write is original. WordPress has removed all ten posts. When RW asked for the details of the DMCA notice, they received the following (with the URLs to be taken down removed to keep it readable):

First Name: Narendra
Last Name: Chatwal
Company Name: News Bullet
Address Line 1: Plot No 15 & 16, Express Trade Tower
Address Line 2: Archana Complex
City: Noida
State/Region/Province: Utter Pradesh
Zip/Postal Code: 201302
Country: India
Telephone Number: 8953171759
Copyright holder you represent (if other than yourself):
Please describe the copyrighted work so that it may be easily identified: Hello WordPress Team,

Myself Narendra Chatwal Senior editor in NewsBulet.In, a famous news firm in India. All the news we publish are individually researched by our reporters from all over India and then we publish them on our site and our news channel. Recently we found that some one had copied our material from the category Medical Reviews and published them on their site. So we request you to help us in protecting our content and copy right.

Thanks & Regards,

Narendra Chatwal
NewsBulet.In
Location (URL) of the unauthorized material on a WordPress.com site (NOT simply the primary URL of the site – example.wordpress.com; you must provide the full and exact permalink of the post, page, or image where the content appears, one per line) :

[list of 10 URLs]

If the infringement described above is represented by a third-party link to a downloadable file (e.g. http://rapidshare.com/files/…), please provide the URL of the file (one per line):

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.: Yes

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.: Yes

Signed on this date of (today’s date, MM/DD/YYYY): 02/02/2013

Signature (your digital signature is legally binding): Narendra Chatwal

As the folks at RW note, while their content was, in fact, also showing on NewsBulet.in, almost everything else is suspect. The content was clearly originally from RW, and reposted to NewsBulet.in. As they note:

In other words, NewsBulet.In is violating our copyright; we are not violating theirs. That’s driven home by the fact that the site did not exist until October 2012, according to a WhoIs search. All but one of the Retraction Watch posts they cite appeared before they even existed.

While all of the links to the NewsBulet.in site in the original DMCA takedown now lead you to a 403 Forbidden error message, it's pretty clear that the site copied all of RW's content and then filed a DMCA takedown to get the originals down.

John Timmer, over at Ars Technica, dug into the story and provides significant background information that suggests what is likely to have happened. Timmer's story notes that RW had published a bunch of stories (22 in all) about Potti, and much of it is about his downfall and disgrace:

One of the cases they followed was Anil Potti, a cancer researcher who, at the time, worked at Duke University. Potti first fell under scrutiny for embellishing his resume, but the investigation quickly expanded as broader questions were raised about his research. As the investigation continued, a number of Potti's papers ended up being retracted as accusations of falsified data were raised. Eventually, three clinical trials that were started based on Potti's data were stopped entirely. Although federal investigations of Potti's conduct are still in progress, he eventually resigned from Duke.

However, Timmer also points out that Potti has since been hired at the University of North Dakota and (perhaps more importantly) has hired an "online reputation management" firm to try to clean up his name. That company has been trying to get "positive" stories to show up higher in searches for Potti's name:

No longer do the majority of top search results for the former Duke cancer researcher detail allegations that he falsified his resume and produced faulty research that has been retracted from renowned medical journals and led to the termination of three clinical trials. Instead, more than a dozen websites and social media accounts created in the months following Dr. Potti’s November resignation contain solely positive information about his research and medical experience.

“During his time at Duke, he had a special interest in taking care of patients with lung cancer and contributed to the development of several programs in cancer,” reads a section of AnilPotti.com, which does not discuss the terminated trials that a top Duke official has since said should never have been conducted.

Of course, a current Google search on Potti's name shows that the Retraction Watch stories are actually very prominent these days, even beating out that anilpotti.com site that the reputation management firm helped create. Here's a screenshot:

Timmer's article further notes that, while the front page of NewsBulet.in appears like a normal news site, the claims from "Chatwal" that it is "original reporting" are not supported, and other stories on the site appear to be copied from third party sources as well.

Of course, what's not clear is who actually posted the content to NewsBulet.in and what the plan is. But, it certainly suggests some very questionable behavior from someone who wanted the stories about Anil Potti on RetractionWatch to disappear. RW's Oransky is hoping that it's all just some big mistake, rather than an intentional plan to sabotage RW. As he told Timmer: "We can only hope that this isn't an attempt to keep us from reporting on retractions and scientific fraud." Somehow, I get the feeling this story isn't over yet...

In the meantime, however, RetractionWatch has filed a counternotice, and one hopes that as this story gets attention, Automattic will speed up their review process and restore the original stories in a shorter timeframe than the required 10 business days. As of the writing of this post, the originals are still down, which is unfortunate.

Either way, this is exactly the kind of thing that concerns us about making it easy to take down content with copyright claims. It is bound to be used as a censorship tool, because it becomes too easy for many to abuse the process to take down content they just don't like. Considering the ability to hit back at false takedowns is extremely limited, we're just going to see more and more examples like this.

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Filed Under: adam marcus, anil potti, censorship, dmca, ivan oransky, reputation management, retraction watch, takedown

51 Comments

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saulgoode (profile), 6 Feb 2013 @ 11:50am

"In the meantime, however, RetractionWatch has filed a counterfeiter,"
Should that be "counterclaim"?
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Nate, 6 Feb 2013 @ 11:54am

Re:
I think RetractionWatch is remodeling their kitchen. That would explain the need to have someone feit a counter.
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dUc0N, 6 Feb 2013 @ 11:56am

Perjury?
The DMCA states pretty clearly (as does this form letter) that the notification includes a statement "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." So when these are inevitably misused or badly targeted, why doesn't anyone ever try to pursue a perjury charge against the person who filed the claim?
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Dave (profile), 6 Feb 2013 @ 12:14pm

Re: Perjury?
Perhaps because the prosecutors just can't be bothered?
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Anonymous Coward, 6 Feb 2013 @ 12:14pm

Re: Perjury?
You did notice the complainant address. They are outside US juristiction.
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John Fenderson (profile), 6 Feb 2013 @ 12:21pm

Re: Perjury?
So when these are inevitably misused or badly targeted, why doesn't anyone ever try to pursue a perjury charge against the person who filed the claim?

Because it's too costly?
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Atkray (profile), 6 Feb 2013 @ 12:30pm

Re: Re: Perjury?
So if they are outside US jurisdiction, why isn't the whole claim null and void?
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Ima Fish (profile), 6 Feb 2013 @ 12:33pm

Oh yeah, this fiasco will definitely clear up Anil Potti's name from the internet. It'll be all smooth sailing from now on.
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Anonymous Coward, 6 Feb 2013 @ 12:36pm

Re: Re: Re: Perjury?
Your guess is as good as mine, from here in the UK.
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Markus Hopkins (profile), 6 Feb 2013 @ 12:39pm

Re:
| Should that be "counterclaim"?

No, it should be "counter notice".
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Anonymous Coward, 6 Feb 2013 @ 12:50pm

I would suggest that when you submit a DMCA notice under US law that explicitly says "under penalty of perjury", you are submitting yourself to the jurisdiction of US courts.

The person who signed this is guilty of perjury, and we should seek extradition of this Narendra Chatwal.
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btr1701 (profile), 6 Feb 2013 @ 12:54pm

Re:
> I would suggest that when you submit a DMCA
> notice under US law that explicitly says
> "under penalty of perjury", you are submitting
> yourself to the jurisdiction of US courts.

Yes, there's legal theory and then there's practical reality.

The legal theory is all well and good, but good luck getting any US Attorney or federal judge to start waging some kind of extradition war with the Indian government to try and get their hands on a guy in Uttar Pradesh for falsifying a DMCA claim. No one in the U.S. government is going to expend their limited resources for something like that.
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Mr. Applegate, 6 Feb 2013 @ 12:55pm

You know what they say:
"If you can't Dazzle them with Diamonds, Baffle them with Bullshit."

Well Potti doesn't have much in the way of diamonds, but his "Reputation Management Firm", is doing a bang on job with the baffle them with bullshit part.

Problem is every now and again you run into people that don't mind shoveling the shit away to show what is underneath.
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Mr. Applegate, 6 Feb 2013 @ 1:01pm

Re: Re:
"The legal theory is all well and good, but good luck getting any US Attorney or federal judge to start waging some kind of extradition war with the Indian government to try and get their hands on a guy in Uttar Pradesh for falsifying a DMCA claim. No one in the U.S. government is going to expend their limited resources for something like that."

Kind of makes you think perhaps there needs to be some restrictions on who can file a DMCA claim (Maybe only US firms, so we can get our hands on those who perjure themselves) and perhaps filing incorrect takedowns should be immediately fined, say $100K per link. That should about do it.
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Anonymous Coward, 6 Feb 2013 @ 1:02pm

Re:
This scheme was...

*sunglasses*

...Potti from the start.

YEAHHHHHHHHHHHHHHHHHHH!!!
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Anonymous Coward, 6 Feb 2013 @ 1:03pm

Re: Perjury?
That clause only means that they are authorized to act on behalf of the rights owner. Not that they actually own the content(or that the rights owner owns the rights to the content). Hooray for unlimited consequenceless takedowns!!!
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Josh in CharlotteNC (profile), 6 Feb 2013 @ 1:04pm

Re: Re:
but good luck getting any US Attorney or federal judge to start waging some kind of extradition war with the Indian government to try and get their hands on a guy in Uttar Pradesh for falsifying a DMCA claim.

If they have the resources to seek extradition for Richard O'Dwyer for doing something legal where he lived, then why wouldn't they have the resources to go after this Chatwal? The copyright supporters keep telling us that the law is the law and it must be upheld, otherwise the global economy will collapse, all creative content will vanish, dogs and cats living together, etc.

If they don't seek extradition and threaten him with the maximum sentence, then it is evidence of selective prosecution, and of course the government would never, ever, ever do that.
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Anonymous Coward, 6 Feb 2013 @ 1:06pm

Either way, this is exactly the kind of thing that concerns us about making it easy to take down content with copyright claims. It is bound to be used as a censorship tool, because it becomes too easy for many to abuse the process to take down content they just don't like. Considering the ability to hit back at false takedowns is extremely limited, we're just going to see more and more examples like this.

I know, right? Best just to get rid of copyright all together. People are also sending fake bomb threats via email. We should probably get rid of email too just to be safe.
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RD, 6 Feb 2013 @ 1:11pm

Re: Re:
"The legal theory is all well and good, but good luck getting any US Attorney or federal judge to start waging some kind of extradition war with the Indian government to try and get their hands on a guy in Uttar Pradesh for falsifying a DMCA claim. No one in the U.S. government is going to expend their limited resources for something like that."

Oh? But they can spend those "limited resources" (protip: the govt has UNLIMITED resources in practical terms to bring to bear against whomever they decide to target) to go after someone for downloading a few songs, or who has a website with links TO (but not actually containing) infringing and non-infringing content. In those cases, there is no restraint whatsoever to the response of the govt.
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Mike Masnick (profile), 6 Feb 2013 @ 1:28pm

Re:
Should that be "counterclaim"?

Dah! Autocorrect... :)
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Mike Masnick (profile), 6 Feb 2013 @ 1:30pm

Re: Perjury?
The DMCA states pretty clearly (as does this form letter) that the notification includes a statement "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."

You have to parse that very carefully. The perjury part ONLY applies to whether or not they're authorized to act on behalf of the person claiming to hold the copyright... which is why it's useless.

Also, as others have noted, it's costly to go after them for this and being outside of the US there are jurisdictional issues.
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Chosen Reject (profile), 6 Feb 2013 @ 1:37pm

Re: Re: Re: Perjury?
Just because they are outside US jurisdiction for perjury purposes, does not mean they are outside for purposes of copyright. I can have a copyright on something in India, but they can't extradite me for perjury on a whim.
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Tim, 6 Feb 2013 @ 1:42pm

DMCA Takedown
Well, let me see. What we have here is an unscrupulous and disgraced researcher working in the US. He has gone to considerable lengths to conceal his misdeeds on the Internet. He is of Indian ancestry. The takedown notice came from India. Who do you think is behind it?
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Kelledin (profile), 6 Feb 2013 @ 1:43pm

I remember reading this yesterday and facepalming vigorously. My fear in this case is that Potti, or his reputation management firm, intentionally arranged this stunt, and intentionally set up Newsbulet.in as an offshore front specifically to dodge the consequences of such a blatant DMCA fraud.

I can only hope that some evidence will come out that leads back to Potti and/or his rep management firm, and the appropriate parties thoroughly piledrive the real instigators in court. If not, it highlights just how much of a joke this part of the DMCA is. :-(
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Chosen Reject (profile), 6 Feb 2013 @ 1:46pm

Re:
It is best to get rid of copyright altogether, but that discussion has nothing to do with what Mike said. Mike didn't say copyright makes it possible, he said the DMCA as-is makes it too easy. You could eliminate the DMCA, or change it to be more difficult, and copyright would still exist.

You could make it more difficult to send in bomb threats so that fake threats are reduced, but there doesn't seem to be a rash of fake bomb threats to make doing so worth either the risk or even the effort. The DMCA on the other hand, is abused so regularly that it might as well just be tossed out, but perhaps it might be fixable.

Please, tell us how it can be fixed rather than be eliminated. That would be how you could be a productive commenter, rather than idiot you seem to want to be.
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John Fenderson (profile), 6 Feb 2013 @ 1:48pm

Re:
Or just get rid of the DMCA.
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Anonymous Coward, 6 Feb 2013 @ 1:50pm

Plan to reform the DMCA
This incident gives me idea on how we can provoke a DMCA reform
Make a team of foreigners send a DMCA takedowns on US congresmen webpages.
The reform will follow in two weeks :)
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SUNWARD (profile), 6 Feb 2013 @ 2:03pm

Wordpress domain?
And why don't they get their own site? Domains and basic hosting are cheap these days.
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Anonymous Coward, 6 Feb 2013 @ 2:04pm

Derpass Monopoly Crapfest Atrocity
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Anonymous Coward, 6 Feb 2013 @ 2:06pm

Re: Re: Re:
Maybe only US firms and only on sites based in the US.
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Gwiz (profile), 6 Feb 2013 @ 2:07pm

Re: Plan to reform the DMCA
Make a team of foreigners send a DMCA takedowns on US congresmen webpages.
The reform will follow in two weeks :)

Either that or we get some new law declaring that foreigners sending DMCA notices to US state officials equals "cyberterrorism" and must be punished with drone strikes.
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fwicken, 6 Feb 2013 @ 2:11pm

Damn. Too easy to copy. Too easy to censor. Too easy to abuse. Can we hit a middle-ground? Or is that just too much to ask a bunch of asshats with trucks full of control of media that they didn't actually create in a vacuum, much less create?

You see how that goes both ways? Sure. But which group is using their money and power against the other - for more money and power? Right. That's what I thought too.

There's been a shit-ton of bad law since this intertubes thing and a shit-ton of bad government. I think we need new waste treatment facilities. A bottom-up kind of thing vs an out-the-bottom one.
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Bergman (profile), 6 Feb 2013 @ 2:22pm

Re: Re: Perjury?
If that's true then as long as you acted through an agent, you could strike back against people abusing DMCA by taking THEM down without criminal consequences.

New Techdirt project perhaps? =)
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Mike Masnick (profile), 6 Feb 2013 @ 3:17pm

Re: Wordpress domain?
And why don't they get their own site? Domains and basic hosting are cheap these days.

Getting your own still leaves you subject to the whims of your hosting company anyway, and they are still likely to follow the DMCA...
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That One Guy (profile), 6 Feb 2013 @ 3:35pm

Re: Re:
Now if you made it look like he was infringing copyright...
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btr1701 (profile), 6 Feb 2013 @ 4:43pm

Re: Re: Re:
> If they have the resources to seek extradition
> for Richard O'Dwyer for doing something legal
> where he lived, then why wouldn't they have the
> resources to go after this Chatwal?

Well, for one thing, they were extraditing O'Dwyer from Britain, which stupidly signed a treaty with the US requiring them to turn over their own citizens to the US whenever we demand it. So extradition was (at least intially) a done-deal. There's no such sweetheart treaty with India. Any extradition attrempt there would have to go through the full (very expensive) process.

Second, O'Dwyer was being accused of a felony. DMCA misrepresentation is at best a misdemeanor. No one seeks extradition from halfway around the world for a misdemeanor charge. Hell, I usually can't even get the US Attorney's office to pay for extradition from a neighboring state for anything less than a major felony. Good luck with getting them to go to India for a guy so he can get two months in the clink for DMCA perjury.
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Anonymous Coward, 6 Feb 2013 @ 4:50pm

Re: Re: Perjury?
I'm confused why would this not not be just that. They did not own actual copyright so they're not authorized to send a DMCA.

False DMCA request need to start being dealt with more harshly. As it stands today you can flood the system with them with pretty much zero risk to yourself.
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Anonymous Coward, 6 Feb 2013 @ 6:48pm

Re: Plan to reform the DMCA
Actually that is not a bad idea, if this Pradesh(or whatever) character can do it, so any foreigner can do it, which means, 7 billion foreigners can flood US companies claiming copyright on every BS asset other American companies or individuals hold.

The first to publish a DMCA template to take down will be king of the hill.

Remember there are no strong penalties in the DMCA, is ripe for abuse and people should use that to show it to everyone.

Abuse the American legal system, use that system to do a little harm and annoy the hell of American media companies or any other company to show that the DMCA as written is a tool for frivolous action and not something good.

Troll the trolls I say.
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Anonymous Coward, 6 Feb 2013 @ 6:57pm

This is just priceless, how to use the DMCA to really steal others work.

That Indian guy didn't just commit perjury he stole the rights and thus the property of others, since he took the right of others over the content and took ownership, now that is theft of intellectual property, if anything should be considered theft is the taking of others rights.

The Indian dude also gave people a way to fight back against copycrap.

We all know that the DMCA is BS, it has no safeguards and by exploiting those weakness one can surely abuse that system and get away with it without punishment.

All foreigners that their government don't have treaties with the US, should start filling DMCA notices to every asset to every American company they could possibly find, just to show how annoying that crap is.
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SUNWARD (profile), 6 Feb 2013 @ 7:00pm

Re: Re: Wordpress domain?
that is why I moved my hosting and domain registrar to Canada. DMCA doesn't apply here.
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btrussell (profile), 6 Feb 2013 @ 7:41pm

Re: Re: Re: Wordpress domain?
Canadian Business Groups Lobby For Right To Install Spyware on Your Computer
http://www.michaelgeist.ca/content/view/6777/125/
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SUNWARD (profile), 6 Feb 2013 @ 10:09pm

Re: Re: Re: Re: Wordpress domain?
what they want is not what they are going to get.
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Mike Masnick (profile), 6 Feb 2013 @ 10:50pm

Re: Re: Re: Perjury?
I'm confused why would this not not be just that. They did not own actual copyright so they're not authorized to send a DMCA.

No, that's the sneaky part. The perjury claim is only to the *REPRESENTATION* part. That's it. Do they officially represent this other person.

Whether or not that other person actually holds the copyright is a separate issue.
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Ninja (profile), 7 Feb 2013 @ 1:38am

The usual critics seem interestingly absent in the discussion. I'd love to hear their twisted logic for this.

The lack of due process, the assumption of guilt before innocence.. If copyright actually followed the normal course of the law many of the current issues would not exist.
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Anonymous Coward, 7 Feb 2013 @ 4:54am

DMCA is missing one thing: a required filing fee or bond. Could be flat or scaled, but something...
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Josh in CharlotteNC (profile), 7 Feb 2013 @ 6:31am

Re: Re: Re: Re:
Guess the sarcasm didn't come through strongly enough. Yes, I know all that. My point was to illustrate the complete hypocrisy of the government and one-sidedness of copyright law.
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Anonymous Coward, 7 Feb 2013 @ 11:44am

Re: Re: Perjury?
"You have to parse that very carefully. The perjury part ONLY applies to whether or not they're authorized to act on behalf of the person claiming to hold the copyright... which is why it's useless."

The exact wording of the law states "...under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

Yes, I did parse that carefully. But this is one of those rare cases where it applies. The law says, the owner of an exclusive right that is allegedly infringed. It does NOT say, the alleged owner of a right that is infringed. Ownership of the right IS covered under the penalty of perjury section. Given the circumstances here, they could not have reasonably believed they owned the copyright.

Yes, there are jurisdictional issues. But this was malicious.
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Ferniglab, 7 Feb 2013 @ 12:05pm

Backfire
In fact this is a great thing. Slightly annoying, but no more. Whoever issued the DCMA has managed to bring the entire Anil Potti saga back to the front page where it belongs. This allows an easy contrast between the apologias from his new employees and the past and prevents any "reputation management" activities from bearing any fruit whatsoever. The posts, though temporarily unavailable are, of course, still there in various caches and plenty of people have made these available, including myself.
So DCMA and where to host are not necessarily issues, since attempts to censor legitimate information are not only temporary, but also ineffectual, because the information remains available in various caches. So keep posting folks, that is how you beat censorship.
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Anonymous Coward, 7 Feb 2013 @ 1:49pm

Re: Re:
They don't seem to have had any problems in trying to extradite Richard O'Dwyer and Gary McKinnon for relatively minor alleged offences. Note the word ALLEGED!
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RaoWords, 28 Feb 2013 @ 5:16am

A Sham website
Newsbulet.in looks like a sham, and DMCS fell for it. What a shame
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Matt, 28 Aug 2013 @ 4:07pm

GoDaddy
This is exactly why I left GoDaddy who has a relationship with Warner Bros. in that WB just has to email GoDaddy, and the person's ENTIRE site will be shut off.

Moved server to Canada.
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