Putting Together A Database Of Bogus DMCA Takedowns

from the interesting-move dept

Thu, Feb 7th 2013 10:36am — Mike Masnick

Over the years, we've written many, many stories of completely bogus DMCA takedowns. It's a pretty common occurrence. Sometimes it's done accidentally by clueless bots (or clueless humans). Sometimes it's done maliciously. We just had a case that appeared especially egregious, involving a site copying another sites' articles, then claiming copyright over the originals in order to take down the original stories (which just happened to paint a professor in a very poor light for allegedly faking parts of some high profile research). That story inspired David Weekly (founder of PBWiki, HackerDojo, SuperHappyDevHouse and a few other things) to do something: he set up the site DMCAInjury.com, which is just a simple Google spreadsheet input form at this point, but hopefully can become something much more.

David has pointed out that it would be handy to have some more cases in which the filers of bogus DMCA notices are actually punished for their actions under section 512(f) of the DMCA. As we discussed last year, it's very difficult to win a 512(f) claim, in part because the language is so vague and so far courts have interpreted it pretty narrowly.

However, as David points out, there have been some successful cases, including the case that the EFF ran against Diebold nearly a decade ago. David was actually one of the plaintiffs in that case. If you don't remember, someone had leaked some internal documents from Diebold (makers of e-voting machines) which showed the company was well aware of massive security problems with their machines. Diebold first tried to claim the documents were fake and then used the DMCA to claim they were covered by Diebold's copyright and that it could issue takedowns on them. As you might have noticed, those two claims would contradict each other. Either way, a judge pointed out that:

"no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright."

The problem, of course, is that there just aren't that many such cases (there are a few scattered ones, including the Lenz case we've been talking about recently). So finding such cases, and actually having them go to court could be useful -- though I still think strengthening the ability to punish bogus DMCA notices would be helpful (well, and changing the entire DMCA takedown process, but that's another post for another day). Via email, David admits that this is just a "trial balloon" to see if it turns up any interesting cases of bogus takedowns that might make for good 512(f) cases. And that would be good, though the weaknesses of 512(f) still make it pretty difficult to find ideal cases, even as we see DMCA abuses all the time.

Even with that being the case, if this effort doesn't turn up bogus takedown notices for new cases, at the very least, perhaps it will create a useful dataset to explore the nature and frequency of bogus DMCA takedowns.

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Filed Under: 512f, bogus takedowns, copyright, dmca, takedowns

32 Comments

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Pixelation, 7 Feb 2013 @ 10:44am

3 strikes
Make a 3 strike system that Copyrightists love so much. You file 3 bad DMCA claims and you are cut off from ever filing again.
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Anonymous Coward, 7 Feb 2013 @ 10:46am

Re: 3 strikes
No. To be fair, you have to include one crucial tidbit:

"You file 3 allegedly> bad DMCA claims and you are cut off from ever filing again."

Let's see how they like it.
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Anonymous Coward, 7 Feb 2013 @ 10:46am

Re: Re: 3 strikes
D'oh, html fail.

It's supposed to be like this:

"You file 3 allegedly bad DMCA claims and you are cut off from ever filing again."
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Anonymous Coward, 7 Feb 2013 @ 10:50am

Re: Re: Re: 3 strikes
Now, now. They were nice enough to give us 6 strikes, we can only do the same for them.
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Anonymous Coward, 7 Feb 2013 @ 10:50am

Mike--

Why don't you ever discuss legitimate take down notices? I don't get why you hyper-focus on a few illegitimate notices without discussing the millions of legitimate notices. Would a little bit of balance and perspective kill you? I guess so. I've never seen you come close to discussing anything in a fair and evenhanded manner. Extremist is as extremist does. It's a shame that you're so far gone. I think you could bring something to the table if only you'd sit down at it.
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Pixelation, 7 Feb 2013 @ 10:52am

Re:
That's strike one...
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Chosen Reject (profile), 7 Feb 2013 @ 10:56am

Re: Re: Re: Re: 3 strikes
True, but they left out public domain as an excuse, so I find it only fair that we also don't let them use mistakes as an excuse as well.
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Anonymous Coward, 7 Feb 2013 @ 10:58am

The troll has the audacity to claim extremism? I am not sure he even knows the meaning of the word. At the very least it adds another description to his character...

it's called hypocrite.
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Anonymous Coward, 7 Feb 2013 @ 11:00am

Re:
Mike (et al) has been talking about all of the illegitamte takedowns simply for the fact that they are (in absurdly obvious ways) bad for human rights, innovation, and the public in general.

Notice (via simple searches) that Techdirt isn't anti-copyright, just rather against the components of it used to stifle the pubilc's interest (see list above).

The basic argument is if the system violates human rights, innovation, and the public interest in general (especially when other financial options are availble to copyright holders), then the laws need to change.

Using DMCA notices to censor should be illegal and punishable as that violates the 1st Amendment. Patent trolling (and even corporation warefare over patents) stiffles small innovators, improvements on old technology, and competition making (bad) patents in need of review.

Shall I continue or have I hit a good enough reason for Techdirt/Mike (et al) and the articles they publish. Not that there really is any reason to justify any of it. It exists and operates the way it does. Deal with it.
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Anonymous Coward, 7 Feb 2013 @ 11:01am

Re:
"Why don't you ever discuss legitimate take down notices?"

What is there to discuss? That would be the system working as intended.

The problem only exists when the system does not work as intended. Hence the focus on the failings of the system.

A programmers analogy: that would be like having a bug tracker where 70% of the bug reports were "Hey, I pressed this button and it worked exactly as expected! Great job dev team!".

"I don't get why you hyper-focus on a few illegitimate notices without discussing the millions of legitimate notices."

I think that once we pass the threshold where someone actually considers building a database of bogus DMCA claims we can no longer consider those cases to be "few". A database implies "lots and lots", not few.

Also, did you not see the most recent DMCA hilarity? Here you go:

http://arstechnica.com/science/2013/02/site-plagiarizes-blog-posts-then-files-dmca-takedown-o n-originals/
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Anonymous Coward, 7 Feb 2013 @ 11:02am

"As we discussed last year, it's very difficult to win a 512(f) claim, in part because the language is so vague and so far courts have interpreted it pretty narrowly."

As expected with any copyright laws: guilty until proven innocent until you flip the coin back on the attacker, then it's innocent until proven guilty.
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GMacGuffin (profile), 7 Feb 2013 @ 11:05am

Re:
Why don't you ever discuss legitimate take down notices?

Why doesn't the nightly news do stories on law abiding citizens who didn't drive drunk and cause an accident? Oh, the bias!
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Anonymous Coward, 7 Feb 2013 @ 11:07am

Re:
Because using the DMCA in the way it was meant to be used isn't news, in the same consensual sex is not news, but rapes are.
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mockingbird (profile), 7 Feb 2013 @ 11:07am

Re:
I see this as the same as organizations that focus on police misconduct. the point is that the misconduct is bad, it doesn't detract from the erm.. proper beatings delivered by police, but there's a particular focus to not let abuse in the system be ignored because "1%" is perfectly acceptable.
except, it's not perfectly acceptable, and god forbid it's 10%. so, if you want to focus on correct actions by... police or correctly applied take down notices, feel free to start a site devoted to that.
I'm more interested in being aware of abuses of power, the twisting of logic, effectively keeping an eye on an ever more powerful and irrational legal body.
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Anonymous Coward, 7 Feb 2013 @ 11:07am

Re:
I think it's cute when you pretend to be rational.
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Anonymous Coward, 7 Feb 2013 @ 11:08am

"no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright."

the key word here being "reasonable", something the more stringent copyright supporters are anything but.
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Anonymous Coward, 7 Feb 2013 @ 11:22am

Re:
"Why doesn't the paper publish a list of all the houses that DIDN'T burn down yesterday? They far outnumber the ones that DID burn down."
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Anonymous Coward, 7 Feb 2013 @ 11:31am

Re: Re:
Consensual sex isn't news, but it's still covered a lot on the internet. Or uncovered. Or discovered.
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silverscarcat (profile), 7 Feb 2013 @ 11:33am

Re: Re: Re:
the internet is for porn!
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DannyB (profile), 7 Feb 2013 @ 12:06pm

Re: Re: 3 strikes
No. To be fair, you have to include one crucial tidbit:

"You file 3 allegedly bad DMCA claims and you are cut off from ever filing again."

No. This:

"You file 3 allegedly bad DMCA claims and you lose your copyrights."

Losing your copyrights isn't as bad as losing your internet access. Internet access is a human right. Copyrights are a privilege.
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DannyB (profile), 7 Feb 2013 @ 12:08pm

Re:
What is there to discuss about legitimate take down notices?

1. There is a real copyright infringement.
2. Copyright owner files a real and legitimate DMCA claim and gets content removed.
3. The infringer does not respond.

What is there to discuss?
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Jeffrey Nonken (profile), 7 Feb 2013 @ 12:33pm

Fix the DMCA provisions? I disagree. The best way to fix the DMCA is with cement overshoes.
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DOlz, 7 Feb 2013 @ 12:35pm

Re: Re: Re:
Wait a minute you mean there's something besides sex on the internet. Learn something new everyday ... now back to the porn.
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Anonymous Coward, 7 Feb 2013 @ 12:42pm

Re:
no, the best way to fix the DMCA is to shoot it in the head, as it's foaming at the mouth.
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Anonymous Coward, 7 Feb 2013 @ 3:13pm

Re: Re: Re: 3 strikes
But what if they never had the copyright?

Fair is fair. They should just lose their Internet access. That way they can't file more false DMCA's.
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Meri, 7 Feb 2013 @ 4:19pm

Hello
I have a sad case. Contact me if you need case studies. mrosich @ gmail
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btrussell (profile), 7 Feb 2013 @ 4:39pm

Re: Re: Re: 3 strikes
"You allegedly file 6 bad DMCA claims and you are cut off from ever filing again."

That is more in line.
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That One Guy (profile), 7 Feb 2013 @ 6:57pm

Re:
Have a 'sad but true/insightful' vote for that one.
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The Groove Tiger (profile), 8 Feb 2013 @ 11:37am

Re: Re: Re: Re: 3 strikes
Problem is that would target companies that don't file DMCA claims at all.
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btrussell (profile), 8 Feb 2013 @ 4:15pm

Re: Re: Re: Re: Re: 3 strikes
I got their IP address.
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gorfeld, 15 Feb 2013 @ 11:19am

And we curse Bill Clinton for making this legal for ten zillionth time.
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Eric G, 28 Jun 2013 @ 5:45pm

Contiue to receive baseless DMCAs
I have received numerous DMCA notices from Zuffa (UFC's parent company) for months over my content. Problem is none of my content violates any kind of DMCA. My content is all original and has no pics or video in them. The first time I received one was for a promotional poster which I immediately took down as well as all pics on my site just to make sure it never happened again. Six months later I continue to receive them for dozens of blogs, all of which are original content with no pics. Its harassment at this point and it's getting out of hand.
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