When Even Totally Bogus Copyright Threats Over Court Documents Comes Close To Shutting Down A Site, Something's Broken

from the not-universally-reviled-enough,-it-would-appear dept

Thu, Aug 22nd 2013 10:44am — Tim Cushing

The "c" in "copyright" still stands for "censorship," at least when wielded by aggrieved entities with limited retaliatory options. Torrentfreak is reporting that Comcast has sent the site a cease and desist order over last week's article on Prenda's honeypot operations.

[On] Monday we learned that Comcast was not happy with our coverage. Through the brand protection company Cyveillance they sent a cease and desist letter for an alleged copyright infringement, demanding that we take the article offline, or face legal action.

The threats are clear. If we fail to comply with the takedown notice within five days Comcast will file a lawsuit seeking immediate injunctive relief, compensatory damages, statutory damages, punitive damages, attorneys’ fees and costs of the suit.

The "intellectual property" in question is the public court filing, according to Cyveillance. (The actual C&D letter doesn't specify what's been infringed.) Torrentfreak told Cyveillance that public court filings are public domain (which may not be entirely true -- court documents filed by private parties (as opposed to the courts themselves) probably are not technically public domain, though there's a pretty strong argument that most uses of them are fair use -- and especially when it comes to use in reporting and commentary).

After being informed of this fact, Cyveillance told Torrentfreak that Comcast said to "hold off" on removing the post for the time being, but that news came far too late as Torrentfreak's host was already threatening to pull the plug.

Meanwhile, the situation further deteriorated when we learned that our hosting provider LeaseWeb received the same cease and desist notice. LeaseWeb alerted us to this problem on Tuesday and stated that our IP-address would be blocked if the issue was not resolved within 24 hours.

With Torrentfreak's site on the line, Comcast and Cyveillance then decided to turn unresponsive. Several hours later, Comcast finally issued a statement.

Update 7pm CET: A Comcast spokesperson responded to an inquiry we sent to the company’s lawyers:

“[I] am replying to let you know that the cease and desist was sent in error, and you may disregard it. We apologize for any confusion this may have caused.”

Oh, one of those common "please take down our copyrighted content or prepare to be sued" mistakes. We've all made those. I'm pretty sure the only "error" was underestimating the pushback.

So, all's well that ends well, I guess, except for that fact that Comcast's "error" nearly took a site offline and gets to walk away from the experience unscathed. And because it made it through with little more than some public embarrassement, it won't learn a damn thing.

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Filed Under: copyright, dmca, takedown, torrentfreak
Companies: comcast, cyveillance, prenda

36 Comments

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Ninja (profile), 22 Aug 2013 @ 9:59am

No, I'm not joking about the anomaly count. Really. I'm not even mentioning such a thing.

It seems they are looking for a provider that won't bow down that easily like LeaseWeb did. I wish I could say we should vote with our wallets and do exactly that but it'd be only palliative. The madness is systemic.
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out_of_the_blue, 22 Aug 2013 @ 10:57am

Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
Anomaly already over! Comcast says it's a mistake!

http://gigaom.com/2013/08/21/comcast-says-copyright-threat-to-torrentfreak-an-error/
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Scote, 22 Aug 2013 @ 11:00am

Thuggery by form letter...
What is especially interesting is the use of the term "leveraging". This would seem to be a form letter CD demand that is meant to cover a wide range of overarching claims of infringement, including links to and embeds where the content isn't even on the site being threatened. I especially like the part where the form letter claims that the "infringing" content, a letter with Comcast's letterhead, fails to attribute authorship to Comcast :-0

Additionally, this isn't a DMCA takedown notice, which means it isn't sworn under penalty of perjury (not that anybody ever gets prosecuted for purjury for those, **ever** :-p )

Sending threats like this should be illegal. Only the attorney of record should be allowed to make legal claims, and then only if they are specific to instant case. No generic form letters, and no claiming things like Comcase "will be entitled to recover" damages when the reality is they only **may** be entitled.
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Wally (profile), 22 Aug 2013 @ 11:07am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
" Update 7pm CET: A Comcast spokesperson responded to an inquiry we sent to the company�s lawyers:

�[I] am replying to let you know that the cease and desist was sent in error, and you may disregard it. We apologize for any confusion this may have caused."

Already covered no worries.
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S. T. Stone, 22 Aug 2013 @ 11:12am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
Comcast made a mistake and almost censored a website providing legitimate news reports and commentary.

How many other such �mistakes� has Comcast made that we haven�t heard about?
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silverscarcat (profile), 22 Aug 2013 @ 11:14am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
A mistake that almost got an entire website shut down.

Stop being such a copyright apologist already.
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Anonymous Coward, 22 Aug 2013 @ 11:18am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
Gee, ya think we didn't see that at the bottom of the article, blue_in_the_face?
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Gwiz (profile), 22 Aug 2013 @ 11:22am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
Anomaly already over! Comcast says it's a mistake!

Since you are attempting to diminish the relevance of these situations by calling them anomalies, let me ask you a simple question (even though you will probably ignore it like any other rebuttal of your comments):

Do you support severe penalties for misusing DMCA notices?

If these actually are anomalies that are few and far between, than I can't fathom why you wouldn't support statute that imposes actual punishment for blatant misuse like this case. I mean, it's not like it's any big deal, just an anomaly, right?
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Peter (profile), 22 Aug 2013 @ 11:22am

New Prenda-Cheerleader Comcast?
Interesting PR-move for Comcast to defend Prenda - boss John Steele & his team when they have become so toxic that nobody else would touch them with a barge pole.
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Anonymous Coward, 22 Aug 2013 @ 11:24am

There needs to be fines imposed for people filing false DMCA notices. Since in the notice the person or company filing it must explicitly state that they are the copyright holders and are essentially committing perjury.

Secondly TorrentFreak needs to look for a new host.
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Anonymous Coward, 22 Aug 2013 @ 11:35am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
It's funny how easily you can switch from never trusting a corporation to immediately trusting their excuse at a moment's notice.

Also, telling.
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Anonymous Coward, 22 Aug 2013 @ 11:45am

OOTB: anomaly number 182736362 over "nothing to see here"

willfully oblivious as always
Yours,
OOTB.
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Anonymous Coward, 22 Aug 2013 @ 11:49am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
I love your NSA-esque definition of "anomaly."

Sorry - but the "shoot first, ask questions later" method for the DMCA seems to be turning up alot of anomalies lately.

I think if you had to jump through hoops to prove your innocence, you'd be slightly less impressed with Comcast.
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Anonymous Coward, 22 Aug 2013 @ 11:50am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
Of course they said it was a mistake. The entire issue is when they said it.
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Anonymous Coward, 22 Aug 2013 @ 1:01pm

When does an anomaly become a standard occurence? perhaps OOTB in his (apparent) all-knowing wisdom should tell us?

is it 1% of the time? 10%? 50%? 100% ?

Also if OOTB doesn't want to be considered a corporate shill how about he/she tells us who they actually are employed by?
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Anonymous Coward, 22 Aug 2013 @ 1:03pm

Actually 4chan could probably find out OOTBs identity within seconds (if they haven't already.......).
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Anonymous Coward, 22 Aug 2013 @ 1:14pm

Re:
"Actually 4chan could probably find out OOTBs identity within seconds (if they haven't already.......)."

DING! His day is coming...
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S. T. Stone, 22 Aug 2013 @ 1:29pm

Re:
As a former 4chan regular (and current quasi-part-time lurker), I doubt 4channers would do it unless they could generate serious lulz from the aftermath.
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Anonymous Coward, 22 Aug 2013 @ 1:55pm

Why don't they do it like in Russia, that the copyright holder have to come up with all the documentation first proving he actually owns what he said it was his?

Now if people started to put bogus ownership documents that would be fraud.
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Anonymous Coward, 22 Aug 2013 @ 3:21pm

Is this the same Comcast with the draconian Six Strikes policy? The same one who bought Sand Vine deep packet inspection equipment and violated net neutrality by blocking bittorrent traffic. Even BT traffic used for World of Warcraft updates?

Of course it's the same one. Might as well call them 'Monopoly Cast', because I sure as hell can't get any other TV or internet service in my area.
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Anonymous Coward, 22 Aug 2013 @ 3:57pm

LeaseWeb
Sounds like TorrentFreak needs a new hosting provider.
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Anonymous Coward, 22 Aug 2013 @ 6:35pm

Worst case, few hours outage and free hosting. Not a big deal for a major site.

Leaseweb don't deserve people's money; they haven't for years. I don't know why people are even still there...
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Anonymous Coward, 22 Aug 2013 @ 7:06pm

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
I am a police officer. I shoot you in the chest. You almost die from the bullet wound, but you don't.

Anomaly that, jackass.
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horse with no name, 22 Aug 2013 @ 7:07pm

ignorance is bliss, Tim
Perhaps Tim you might want to get off that EXTREMELY high horse and thing about it for a second.

The copyright claim was weak. The site in question (a turd of a place, but that's just my opinion) was never at risk of being shut down. Leaseweb sent them a standard "we got a notice, deal with it" warning, and the site in question did what they were suppose to do. They followed up and claimed their rights to use the material, and the original issuer of the complaint agreed. END OF STORY.

There is no "site almost shut down" - that would have happened only if the site operators were not available, unreachable, or anonymous to the point where their "service provider" couldn't reach them anymore.

If you want to lash out at anyone, lash out of leaseweb, a company of mixed reputation, for giving such a short period of time to deal with the issue. They aren't required to be THAT aggressive in dealing with the issues, and perhaps it's the "service provider" being the one threatening the service, and nobody else.

NOTE: Techdirt continues to hold each and every one of my comments for moderation for posting. Why does Techdirt insist on censoring dissenting opinions?
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That Anonymous Coward (profile), 22 Aug 2013 @ 9:52pm

It is almost like Comcast is trying to clean up the copyright trolls trails.
They couldn't have any reason for wanting to make them look like good legitimate people could they?
I mean 6 Strikes is all on the up and up... they FINALLY picked a new company to review the system that is violating terms of use every second it operates.
And wasn't it Comcast that just pitched a new idea for monitoring their customers traffic so they could pop up legal alternatives when they detect downloading?
Its not like they have refused to answer a subpoena for records to help hang a copyright troll... oh wait.
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JMT (profile), 22 Aug 2013 @ 11:40pm

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
"Comcast says it's a mistake!"

And you believe them? Seriously?!
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Anonymous Coward, 23 Aug 2013 @ 1:31am

Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
And what punishment will Comcast recieve for this alleged "anomaly"? Although this is not the usual DMCA threat, it was sent in the same immoral spirit as those under the DMCA.

The time has come for *all* takedown demands to be made under penalty of perjury. This is a sensible and correct measure against the abuses of an overly-broad power that are now undeniable.
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Postulator (profile), 23 Aug 2013 @ 3:15am

Re: Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
All takedown requests already are made under penalty of perjury. The problem is that nobody actually cares that the person making the request has perjured themselves, and nobody prosecutes.
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Postulator (profile), 23 Aug 2013 @ 3:16am

WTF Comcast?
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JoshSN, 23 Aug 2013 @ 3:21am

Response?
Countersuit!
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Pragmatic, 23 Aug 2013 @ 5:49am

Re: Re: Wrote this short retort YESTERDAY, knowing you'd go with this, regardless.
Copyright is such a sacred cow to the likes of OOTB that no overreach (whether it's corrected or not) or over-reaction is unacceptable. She's fine with those corporations that only bully and extort over copyright, but God forbid that they should do anything else online.

Put it this way, if teh Googlez, etc., and the NSA only existed to enforce copyright, she'd have no problem with them.

Amirite?
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Pragmatic, 23 Aug 2013 @ 5:53am

Re: Re:
I've outed her loads of times. I've just discovered she's on Wikipedia.

Check out the comment at the top: http://en.wikipedia.org/wiki/Catherine_A._Fitzpatrick
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nasch (profile), 23 Aug 2013 @ 10:01am

Re: Re: Re:
How do you know that's her? She doesn't even rant against Google on that talk page. I mean I agree that these two people are equally crazy but that's not conclusive.
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wrongtigerwrongtoe, 23 Aug 2013 @ 3:00pm

Cyveillance- Can't seem to get anything right and looks very bad on a resume, and even worse on their employer
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Anonymous Coward, 23 Aug 2013 @ 10:02pm

Re: ignorance is bliss, Tim
Here, here and here. Posts made by you in record time. The last post had all of a half-hour difference between the post your responded to. Ooooh, moderation! Spooky!

You're a poor troll and a horrible liar.

Choke yourself on John Steele's dick, you Prenda fanboy.
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Anonymous Coward, 8 Dec 2013 @ 7:44pm

Re: ignorance is bliss, Tim
horse with no name detests it when due process is enforced.
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