To Argue That 'Copyright And The First Amendment Coexisted For 200 Years' Is To Ignore Reality

Makers Of Firefly 'Fan-game' Abuse DMCA To Try To Silence Critic

from the really-guys? dept

Thu, Feb 21st 2013 12:54pm — Mike Masnick

DarkCryo is a somewhat controversial operation that has been trying for a while to build an "unofficial" multiplayer online game based on the Joss Whedon TV-show/movie/cult classic Firefly. As we've discussed in the past (directly about Firefly, even) we think that this kind of fan creativity should be encouraged, as it's these kinds of fans that have kept the brands and communities together while the big companies let them wither. Of course, Fox Entertainment wasn't too happy and shut it down. The recent controversy came over attempts to resurrect it, with slightly vague suggestions that they had Fox's permission. As people dug into the story, they realized it was something significantly less than permission.

Among the leading critics of DarkCryo is the site FuriousNads by Christopher Frankonis. In particular, Frankonis quite rightly called out DarkCryo for running an IndieGoGo crowdfunding campaign that pretty clearly violated IndieGoGo terms and (much more importantly) securities law by offering a form of an "investment" with "returns" at certain levels. That's a big no-no, even though it would be legalized in the US if not for heel-dragging bureaucrats.

While I think that these kinds of games should be allowed, Frankonis' criticism is completely on target. In response, it appears that DarkCryo -- a company that is really skirting a pretty fine line concerning copyright -- decided to abuse the DMCA and file a takedown notice on FuriousNads posting of a DarkCryo logo image. For the record, this appears to be the image that FuriousNads had on its site:

Though, looking at Google cache, it looks like they also used modified version of that image, superimposing other images on top of it (which, likely, would make the use even more protected). This is clearly an abuse of the DMCA. Such a usage of a logo is about as clear a case of fair use as you could imagine. Frankonis was clearly reporting on DarkCryo, and using the logo in a way that it would be hard to see as anything but fair use.

The site has since replaced all images of the graphic with the following instead:

For what it's worth, Frankonis' hosting firm overstates its reasons for taking down the image:

“We’ve received a DMCA complaint regarding content hosted in your account,” came the late-night email from Acorn Host. “As you are probably aware, web hosts do not have much leeway in responding to complaints like this. We do not get to judge fair use or anything of that sort; we are required to remove anything someone submits a claim about, until which time as you submit a counter-complaint.”

That's not quite true. Acorn absolutely can analyze the situation and could determine that it believes with very high probability that the use would be called "fair use" by a court and then leave it up. The issue is that leaving it up just removes the easy safe harbors that would get Acorn out of any lawsuit. So there are certainly good reasons for it to do what it did, but they are not "required" to do so. They just have to do so if they want to keep the safe harbor protections. That said, we've heard of so many stories of hosting firms completely shutting down entire accounts based on a single DMCA notice that Acorn's position is hardly that egregious. The response is better than many others.

It's unclear if Frankonis intends to file a counternotice, as he suggests he's content with his replacement graphic instead. Given the subject matter, he's probably right. Still, this is yet another case of people abusing copyright law with the clear intent of silencing criticism. That it's coming from an operation that is trying to rely (heavily) on exceptions to copyright law for its own project just makes it doubly ridiculous.

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Filed Under: censorship, christopher frankonis, copyright, criticism, dmca, firefly, joss whedon, safe harbors, takedown
Companies: darkcryo

45 Comments

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Rikuo (profile), 21 Feb 2013 @ 12:56pm

People, commence the bitch-slapping.
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Anonymous Coward, 21 Feb 2013 @ 1:14pm

And still the maximalists will continue to claim that their ridiculous laws (proposed and existing) will not be used for censorship.
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This comment has been flagged by the community. Click here to show it

out_of_the_blue, 21 Feb 2013 @ 1:32pm

Gosh, the importance of this leaves me (rightly) silent.
I'll just make my quip and go. -- And so should you have gone on to something of even tiny importance, instead of stretching this out.

And "whither" should be "wither", college boy.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Why so many self-referring links here? Techdirt logic: old assertions prove new assertions.
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Zakida Paul (profile), 21 Feb 2013 @ 1:35pm

Re: Gosh, the importance of this leaves me (rightly) silent.
"I'll just make my quip and go"

How is that different to any other comment you make?
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Anonymous Coward, 21 Feb 2013 @ 1:36pm

Re: Gosh, the importance of this leaves me (rightly) silent.
________________________________________
Everyone below this line are trolled.
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Colin, 21 Feb 2013 @ 1:37pm

Re: Gosh, the importance of this leaves me (rightly) silent.
Any chance you could skip the quip part in the future and just go?
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A Dan (profile), 21 Feb 2013 @ 1:47pm

Re: Gosh, the importance of this leaves me (rightly) silent.
out_of_the_blue is correct on "whither"/"wither"

And I'm pretty sure the self-referencing is SEO, not circular logic. I think this article's actually quite reasonable about it, though.
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weneedhelp (profile), 21 Feb 2013 @ 1:49pm

Re: Gosh, the importance of this leaves me (rightly) silent.
Wow you are resorting to grammar Nazi now?

I think we need a kickstarter project for OOTB to get his/her meds paid for. When she/he runs out its batshit crazy time. Wooohoooo!!!
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Rikuo (profile), 21 Feb 2013 @ 1:51pm

Re: Gosh, the importance of this leaves me (rightly) silent.
"Why so many self-referring links here?"

You're the one making the self-referring links. If you're trying to imply that Techdirt never provides sources for its articles...you're dead wrong.
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Anonymous Coward, 21 Feb 2013 @ 1:55pm

Re: Gosh, the importance of this leaves me (rightly) silent.
Yay, blue is back, it bean relatively boring around here lately.
www.youtube.com/watch?v=68ugkg9RePc
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Chuck Norris' Enemy (deceased) (profile), 21 Feb 2013 @ 2:26pm

Re: Re: Gosh, the importance of this leaves me (rightly) silent.
You should have put your text above the line...cause now you have been trolled, too.
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Robyn, 21 Feb 2013 @ 3:43pm

The party of the worst part
There appears to be a corollary to Godwin's Law in operation here.
In that, whoever invokes the DMCA first, is automatically and without fail on the wrong side of the argument.
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Emma McCreary, 21 Feb 2013 @ 3:48pm

thanks for raising awareness about DMCA
Hi,

Thanks for your article raising awareness about DMCA. As the owner of Acorn Host, the company you refer to, I wanted to add a few words.

The part of our letter that Christopher left out of his blog post might help elucidate our position:
"We are sending you this as a courtesy to request that you take the images down yourself; if we don't hear from you within, we will disable access to these files. We try to do this as non-invasively as possible, so we would likely change the permissions on the files so they cannot be seen by the public."

Tempers tend to run high around DMCA complaints. We're a small company, and one that values compassion and connection. We try not to overreact one way or the other to these complaints. That said, in this case we made a mistake because we didn't get the "official" claim before letting the client know about the complaint, we went on an unofficial claim but didn't make that clear in the letter to the client. So it still could have been handled better.

I also think you make a good point, that we do have a choice, we would just be forfeiting our legal "safe harbor" protection if we made a different choice than to immediately respond to the complaint by taking down the content. I will modify the letter we send to people to make that clearer.

I also want to add that the first thing the complaining company tried was to get us to take their whole site down based on saying it was libel and against our Terms of Service. We replied that they were not violating our Terms of Service, and that they would have to take up the libel complaint with the customer. In the case of libel anyway, we are protected from liability under the Communications Decency Act without having to take anything down.

Thanks for your help in bringing more light to these issues!

Emma McCreary
Owner
Acorn Host
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The One True b!X, 21 Feb 2013 @ 4:06pm

Re: thanks for raising awareness about DMCA
What's interesting there, though, Emma, is that Acorn did not receive an actual DMCA takedown notice, which must follow a particular, if general, form and contain very specific information. Craig did not submit that sort of request, as required by DMCA. No action toward me should ever have been taken until and unless an actual DMCA takedown was submitted.
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Anonymous Monkey (profile), 21 Feb 2013 @ 4:21pm

Nice image
*copy pasta*

... Now what are they gonna do eh ?
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Emma McCreary, 21 Feb 2013 @ 4:25pm

Yes, I agree
Yes, I agree completely. We should not have said anything to you about until getting the official complaint. It turns out that the complaining company changed their mind after we asked for an official complaint, and we just jumped the gun in telling you there was a complaint at all. We were not planning to actually remove your files without an official notice, but we should not have asked you to remove them either.
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JohnnyRotten (profile), 21 Feb 2013 @ 4:41pm

Re: Yes, I agree
So... mistake made, sincere apology offered and a promise not to do it again. I think we can put this to bed unless people are only interested in enjoying the conflict.
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btrussell (profile), 21 Feb 2013 @ 6:52pm

Re: Re: Yes, I agree
I think most of us here are human and can forgive another for an honest mistake. Live and learn.

"Once a master, always a fool."
btrussell

From my book "WOW" Words Of Wisdom. To be released once my copyright expires, @ 100 years from now, give or take a few decades.
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G Thompson (profile), 21 Feb 2013 @ 8:34pm

Re: thanks for raising awareness about DMCA
This people is what is called Customer Service and a brilliant example of understanding your market/stakeholders.

I wish Acorn Host well in your future endeavours Emma and though I am not within the USA, just based on the above post I will recommend you to anyone who might be seeking a customer centric and unbiased hosting provider.
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G Thompson (profile), 21 Feb 2013 @ 8:42pm

Re: Re: Re: Yes, I agree
I think I'd like to pre-order that book using my virtual cash in my virtual wallet (trademark maybe not pending).
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Rekrul, 21 Feb 2013 @ 9:07pm

Of course, Fox Entertainment wasn't too happy and shut it down.

Of course they weren't! Such a game would cut into sales of all the official Firefly games...
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btrussell (profile), 21 Feb 2013 @ 9:42pm

Re: Re: Re: Re: Yes, I agree
Processing........................

Virtually as we speak.

100% satisfaction guaranteed.
Guaranteed delivery.
You may cancel at any time. Just return the book with a cheque for $1 000 000 to cover shipping and handling and a full refund will virtually appear in your wallet.

Now back to our regularly scheduled commercial.
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Emma McCreary, 22 Feb 2013 @ 1:04am

Re: Re: thanks for raising awareness about DMCA
Thank you! I feel honored by your comments. :-)
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Anonymous Coward, 22 Feb 2013 @ 1:39am

A lone ship, seeking the freedoms that may come, with a noble captain who shows us that everyone is human, with a good and bad side, but trying to do the good thing, while sticking it "to the man"

Yeah, i can see why this is a bad message to portray
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Thomas, 22 Feb 2013 @ 9:16pm

You guys should know the background of "b!x".

This is the story of a man called b!x. Since graduating from the renowned State University of New York College at Purchase in 1990, b!x has had prestigious jobs like �Online Marketer� and �Document Scanner,� as well as his most recent career, �Freelance Photographer.� Many may simply call him �unemployed,� or �lazy,� but b!x prefers to think of himself as a man of many talents. He has so many talents, in fact, that he�s never been able to stick with a single job for over three years. In fact, his self-employment since 2010 represents his longest duration holding down a single job. B!x works for the one guy who won�t fire him�himself!
http://www.linkedin.com/in/theonetruebix

But how can b!x afford to support himself on the salary of an amateur photographer? It�s simple! Squat on assets that directly affect people you claim to respect until they pay you!

In 2009, b!x heard that a film called �The Cabin In the Woods� was being created by Joss Whedon. B!x, the crafty entrepreneur that he is, immediately purchased the rights to thecabininthewoods.net and stole a picture of a run-down cabin from another amateur photographer to use on the site. Within weeks, the execs at Metro-Goldwyn-Mayer Pictures were forced to buy the rights to the domain for a hefty fee. Meanwhile, the photographer who took the cabin photo was being hounded by MGM for copyright violations while never seeing a penny of b!x�s profits. But b!x was a savvy businessman and knew not to share his wealth with people that deserved it.
http://epistlesofthomas.wordpress.com/2009/04/28/mgm-unhappy-about-picture-taken-in-public-park /

B!x now lives alone in a small apartment in Oregon. Hiding behind a computer screen, his favorite pastime is harassing people who have done more with their lives than he has. B!x knows he�s not getting any younger, though evidence suggests the 43 year-old comic book fan with no practical skills wishes he was a 15 year-old hipster.
http://www.flickr.com/photos/theonetruebix/6891781444/sizes/z/in/photostream/
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Anonymous Coward, 25 Feb 2013 @ 7:40am

Re: thanks for raising awareness about DMCA
"We are sending you this as a courtesy to request that you take the images down yourself; if we don't hear from you within, we will disable access to these files."

Within what? That wasn't part of the form letter?
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Anonymous Coward, 25 Feb 2013 @ 8:21am

Re:
The saga of your image is interesting, but everything else you have written is irrelevant to this story.
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Sorshja, 7 Apr 2013 @ 2:23pm

Re:
Dear GAWD! And THIS is the person Techdirt is following?!
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Sorshja, 7 Apr 2013 @ 2:28pm

True Irony
Mike, sorry to say that you are completely off the reservation on this one.

Christopher Frankonis SHOULD be held to account as an "advocate of copyright", when he himself infringes and disrespect others' copyright.

Unless, that is, TechDirt admires those that lead by hypocrisy and not example.
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QuoterGal, 7 Apr 2013 @ 3:43pm

Re: Re:
Haha! I've known Christopher Frankonis for awhile now, and yes - a complete freak of nature is an understatement to say the least.
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Sharalee, 9 Apr 2013 @ 9:44pm

Re: Re:
@Anonymous Coward

Actually, Thomas'comment is most certainly relevant if you know the history of this renowned cyberbully!

Christopher Frankonis abuses these kinds of laws all the time in attempt to get Firefly fans shut down (Ask SendingAWave.com), which is likely why no reputable game site will cover his rhetoric. Heaven forbid he should finally get a taste of his own medicine just once (good for you DarkCryo!), and he runs crying to his TechDirt mommy. Typical abuser cowardice.

I for one am waiting for TechDirt's next article, entitled "Critic Abuses Laws To Try To Silence Makers Of Firefly 'Fan-game'".
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Allan, 10 Apr 2013 @ 2:16pm

Re: Re: Re:
@Sharalee Read the blog, right up until the part where he says in brackets, "its a mystery why an avowed private investigator need ask for birthdates" (during account signup I presume). At that point he lost all credbility with me, unless this whole rant is some kind of inside obsession Im not getting. Did DC run over this guy's puppy or something?

He wants to be taken seriously as an intelligent critic, yet he is dumbfounded as to why a competent game company is not conducting unsolicited background investigations on all its gamer accounts during registration?! Holy @&$!
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Jayney, 12 Apr 2013 @ 9:07am

Huh?
This article is a little baffling.

I have always admired TechDirt stories because of your commitment to defending the little guy and sticking it to the man, particularly when it comes to the oppression that is Copyright. In this case, I think you failed to do your due diligence and ended up backing the wrong horse. Here you have Firefly fans that are being harassed by a relentless Copyright troll, who finally (long overdue in my book) took a stand and shoved his own shit down his throat for a change. A lesson in glass houses, really.

Ive been following Firefly fan projects for a long time now, and you honestly would not believe the relentless and unethical attacks this particular Copyright bully has been doing to Firefly fans. He reports Firefly fans (not just DC) to Copyright monopolies and government agencies, getting any and all fan projects shut down in the name of DMCA. This is why true Browncoats are left scratching their heads here.

Not judging your reporting, Mike, just an opinion of several of us over here at FFF that you may wish to take a step back and have a better look next time.
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Gar, 15 Apr 2013 @ 3:48pm

So to be clear, you two accuse this game company, DC, of filing a DMCA. Then this "Frankonis" or "bix" person confesses to lying about it in the comments above, and that DC never did file a DMCA.

I understand why the critic may not be of moral enough character to issue an apology to DC, but that is no excuse for TD. Why exactly has TD not issued a retraction and apology to these game devs for a falsified article, clearly submitted in bad faith?
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HeadShotVictim, 16 Apr 2013 @ 3:35pm

Re:
Hehee more Kotaku-quality journalism. Next we'll read: "checking sources.."
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Kevin, 19 Apr 2013 @ 3:17am

How exactly does the removal of a logo translate to silencing a critic? DC didn't ask to take down the text, just the use of their logo. Isn't that their legal right?

I can call FOX - or any celebrity for that matter - whatever names I want in a YouTube video. But if I plaster the 20th C logo everywhere to draw more attention, they will guaranteed slap a copyright strike against me.

Nothing out of the ordinary here, except for the obsessive-compulsive nutcase with too much time on his hands. Dude was begging for it, IMHO.
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Mika, 3 May 2013 @ 10:54am

Wow, they'll give any psycho a wordpress install these days. If this "Bix" gets more that 10 hits per month - not counting his own IP either - I'd really be surprised.

He confesses that his ongoing rage is because "no other game reporting website" writes as terrible and resentful as him. Ummm, perhaps its because they're not?!

Mate if you're reading this, your perverted-sounding "furious nads" blog is the tabloid version of real reporting. I'm no expert, but THAT's prob why real reporting sites can see right through this sort of jealously-driven propoganda.

To everyone above smacking TechDirt, they prob learned their lesson here. This guy's 15 seconds of fame are up.
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QuoterGal, 4 May 2013 @ 12:39am

Re: Re: Re:
I would like to register my rejection of the nasty remark above on April 7th about b!X by someone calling themselves "QuoterGal". Since I've been QuoterGal online since 2003, have had the website/domain quotergal.com since around that time, have claimed QuoterGal at claimid, and have been a friend of The One True b!X since about 2006, it defies belief that I would've posted that comment - especially out of the blue in April, several months after the actual, main discussion on this piece, as well as long after the whole Dark Cryo brouhaha to which it refers.

Since I was highly vocal online in support of b!X's take on Dark Cryo in February, 2013 - although I've never posted here at TechDirt until now - someone clearly thought it would be amusing to snark about b!X using my online identity, to which I object.

I hope you will see fit to remove that earlier remark. Please feel free to email me at the email address I have supplied if you'd like to verify my identity. I just happened to google my name looking for an old post and ran across this by accident. Glad I did, as finding words put in my mouth like that rather upsetting.
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Lioness, 5 May 2013 @ 2:06pm

Impersoning people? New low.
Anyone who reads b!X's blog, Furious Nads will recognize Thomas' name. But I have to wonder if Jayney, Sorshja and Sharalee, Kevin & Mika are real people and if they are, if they too are being impersonated. Because Quoter Gal certainly was.
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Sorshja, 6 May 2013 @ 2:55pm

Re: Impersoning people? New low.
No Elizabeth Griffin, its me in person. I cannot speak for the others, but I don't believe Karen Wellencamp has a copyright on usernames. If it really wasn't Twinkie girl that commented, perhaps people are simply beginning to sink to meet you two trolls at your own level these days?! Anything is possible.
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Lioness, 6 May 2013 @ 6:21pm

Re: Re: Impersoning people? New low.
Sorshja, not sure why you are so hostile. We have one clear case of someone posting as someone else, I merely wondered if it had happened more than once. The phrase "methinks she doth protest too much" springs to mind here.
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samatwitch, 6 May 2013 @ 7:14pm

Re: Re: Impersoning people? New low.
QuoterGal may not be copyrighted as her name, but she is well-known in many circles on the Internet by that name. In addition, she posted in defense of b!X on his blog at the time of the original story, so it's rather naive to think anyone posting here 'accidentally' picked her name out of a hat.

I'm not sure who you are calling trolls, but neither QuoterGal (the REAL one) nor Lioness have ever exhibited trolling behaviour in all the years I've known them.
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Mika, 6 May 2013 @ 9:52pm

Re: Impersoning people? New low.
So this is your rationale? My name is Mika, and I must be impersonating someone else named Mika, because you don't like my opinion? A+ detective work!
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GE, 7 May 2013 @ 6:58am

It's just that...
it's not a particularly skillful - or accurate - impersonation of QuoterGal. Anyone who knows her would pick that out immediately.

Back to the main point. People were abusing copyright law with the intention of silencing criticism. Focus on that.
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Greeber, 7 May 2013 @ 4:24pm

@GE well said, leave the bickering of usernames to the 12 year olds. I concure with the comments above. This troll's blog - filled with namecalling and source avoidance - is not about critique so much as spiteful vengeance.
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