Copyright As Censorship: San Francisco Eviction Lawyer Uses DMCA Takedown To Censor Protest Video

from the because-that's-what-copyright-does dept

Tue, Jul 22nd 2014 9:03am — Mike Masnick

Right now the issue of housing in San Francisco is a big local topic -- and while I tend to agree that the real issue is the regulations limiting the building of new housing in and around the city, the fight has gotten quite nasty at times. It often seems to focus on two issues (neither of which are the true cause of the problem): local evictions for longtime tenants, and tech workers. You can certainly understand the frustration, even if it's mostly misguided. Still, even given that, this seems like a clear abuse of copyright law by some of the lawyers who have been helping train people to conduct those evictions: using a bogus DMCA takedown to hide a video of a protest of one of their training sessions.

Jackson West attended one of the sessions and video taped people protesting it at a seminar given by lawfirm Bornstein & Bornstein. You can see the video below via Vimeo: However, you cannot see it on YouTube, because Daniel Bornstein issued a bogus copyright notice over the video.

The full article is worth reading, as it includes West calling up Bornstein to talk about things and Bornstein appearing to offer to trade meeting in person for pulling the takedown notice. No matter where you stand on the issue of evictions in SF, hopefully everyone can agree that issuing a bogus copyright notice to delete a video of people protesting you is not okay. Hell, even if you think Bornstein is doing the right thing in helping evict people, hopefully you'll still agree that abusing copyright in this manner is simply wrong.

In West's account (which is, obviously, just his side of the story), Bornstein doesn't seem to understand copyright laws:

...he began asking to meet in person in order to be “presented as human, multi-dimensional.” I pointed out that issuing a takedown notice without contacting me first didn’t really offer me that same benefit of the doubt. I asked if he’d actually watched the video, which he didn’t confirm but instead indicated that he’d objected to the characterization of the incident in the description, complained about other videos of the event (which can’t be found on YouTube, suggesting he may have issued additional claims) and asked to be sent a copy.

Just because you object to the "characterization" of the event, it doesn't magically give you the right to abuse copyright law.

Bornstein promised that if I agreed to meet he would consider dropping the matter, but when I made it clear that I reserved the right to publish a story before the meeting, he replied he’d then have to contact copyright counsel. While not directly stated, the implication was clear that if I agreed to hold the story until after meeting with him, he’d agree to drop the claim.

Later in the story, there's an "update" when West goes to meet with Bornstein. After a dispute about whether things are on or off the record, Bornstein trots out another non-copyright, but still bogus, reason for issuing the copyright takedown, claiming West is not "a legitimate reporter."

When I pointed out that a story was already online, along with the video, he rescinded the offer. However, seemingly confused over the difference between copyrights and privacy rights, he seemed intent on arguing that I wasn’t acting as a legitimate reporter for having attended the event and filmed the protest without notifying the firm first.

That doesn't really have anything to do with privacy rights either -- and even if it did, it still doesn't give Bornstein (a lawyer, remember) the right to abuse copyright law to takedown the video.

Yet again, we see copyright being abused for the purpose of censorsing content someone doesn't like.

Update: As noted in the comments, YouTube has put the video back up...

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Filed Under: censorship, copyright, daniel bornstein, dmca, evictions, housing, jackson west, san francisco
Companies: bornstein & bornstein, youtube

39 Comments

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Ninja (profile), 22 Jul 2014 @ 7:38am

Yet again, we see copyright being abused for the purpose of censorsing content someone doesn't like.

And no real punishments being delivered.
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- Michael, 22 Jul 2014 @ 9:16am
  
  Re:
  And no real punishments being delivered.
  
  I don't know, I have a feeling this may hurt his law practice a bit considering he has come across as a total idiot with little grasp of the law.
  
  He should eat a bowl of dicks.
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  - S. T. Stone, 22 Jul 2014 @ 9:19am
    
    Re: Re:
    Careful, that sort of language in the last sentence might be covered by copyright.
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    - Michael, 22 Jul 2014 @ 9:20am
      
      Re: Re: Re:
      Obvious steps:
      
      1. Get out a bowl
      2. Fill aforementioned bowl with dicks
      3. Get a fork
      4. Dig in!
      
      At least now nobody can patent the process.
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      - Anonymous Coward, 22 Jul 2014 @ 9:23am
        
        Re: Re: Re: Re:
        wrong... patent is not always about doing something specifically but also about HOW one goes about doing it.
        
        If someone comes up with a truly unique way to fill a bowl of dicks then yep... they can patent it!
        
        but this is a copyright discussion right?
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        Anonymous Coward, 22 Jul 2014 @ 9:41am
        
        Re: Re: Re: Re: Re:
        1. Pour loose dicks from Dick brand box of Dick Yums into circular bowl-shaped dick containment apparatus.
        2. Add choice of liquid, solid or gelatin flavor-enhancement ingredients, or just leave bare.
        3. Retrieve dicks from circular bowl-shaped dick containment apparatus with choice of dick retrieval and oral insertion utensils.
        4. Insert retrieved dicks into oral entry port and begin ingestion process.
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      - Anonymous Coward, 23 Jul 2014 @ 6:44am
        
        Re: Re: Re: Re:
        Your prior art might be too late.
        
        They say you are what you eat, surely some BMW driving lawyer somewhere has already patented his morning breakfast.
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    - Anonymous Anonymous Coward, 22 Jul 2014 @ 9:22am
      
      Re: Re: Re:
      Yeah, the registration form for that copyright must be a hoot. You do have to register it to collect, right?
      
      Of course if you don't hold the copyright, there is nothing to stop anyone from making that claim to some website, and short of the Streisand Effect, no consequence.
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      - nasch (profile), 24 Jul 2014 @ 9:58am
        
        Re: Re: Re: Re:
        Yeah, the registration form for that copyright must be a hoot. You do have to register it to collect, right?
        
        Yes, but he's not suing for damages, just issuing a takedown notice.
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Michael, 22 Jul 2014 @ 9:14am

he seemed intent on arguing that I wasn’t acting as a legitimate reporter for having attended the event and filmed the protest without notifying the firm first

Holy cow! All those years of 20/20 investigations done without first notifying the people they were investigating THEY WEREN'T ACTING AS LEGITIMATE REPORTERS!

Thank goodness this has been brought to our attention. From now on, we can make sure to get the STRAIGHT story from media outlets that call people to let them know before showing up to film their nefarious behavior.
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- Anonymous Coward, 22 Jul 2014 @ 10:12am
  
  Re:
  I have to say it again because it bears repeating... again.
  
  Freedom of the press is about the freedom of dissemination of information to the public and is an individual right that all citizens have not just some elite class of "legitimate" reporters. In short - all citizens who choose to publish information are by definition "legitimate reporters".
  [ link to this | view in chronology ]
  - Michael, 22 Jul 2014 @ 10:32am
    
    Re: Re:
    except Fox news.
    [ link to this | view in chronology ]
    - Anonymous Coward, 22 Jul 2014 @ 10:50am
      
      Re: Re: Re:
      Fox news is just legitimately bad reporters.
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S. T. Stone, 22 Jul 2014 @ 9:20am

https://www.youtube.com/watch?v=qRytbC39HRk

The YouTube video’s back up. Something tells me this piss-poor law firm got schooled on copyright law within the past few days.
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Tim R (profile), 22 Jul 2014 @ 9:24am

DMCA
Until the certification paragraph in a DMCA has any teeth, good luck on seeing any of this go away.
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LAB (profile), 22 Jul 2014 @ 9:51am

This definitely seems like abuse of copyright. I think it draws attention to Youtube's policies more. I state over and over they are a private company and operate under their own policies. How they deal with the DMCA is really up to them. It also speaks volumes that you were able to post the video using Vimeo. Perhaps youtube = myspace?
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- S. T. Stone, 22 Jul 2014 @ 9:53am
  
  Re:
  It’s not just abuse of copyright, it’s potentially a form of SLAPP and most definitely an attempt to infringe upon the videographer’s First Amendment rights.
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  - Khaim (profile), 22 Jul 2014 @ 10:11am
    
    Re: First Amendment
    Sadly the First Amendment doesn't apply here - this is a matter between private citizens (and companies). The government isn't involved. Even though "copyright" is being invoked, YouTube's policies are different from federal law, and this is technically not a legal issue. (Yet.)
    
    That said, SLAPP might still apply. I might also look at laws involving fraud: Bornstein used false information to take down the video. Unfortunately, this is unlikely to get anywhere because West would have to show actual harm - he can't exactly sue for damages if he hasn't lost any money.
    
    Honestly, his best bet is to trick Bornstein into uploading his video somewhere, and then sue him for copyright infringement. You don't need to suffer any damage for that!
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    - Anonymous Coward, 22 Jul 2014 @ 10:21am
      
      Re: Re: First Amendment
      Two issues here. 1. He didn't follow Google's policies in issuing the take down as the take down request system, per Google's policies is only to be used for legitimate copyright claims which he does not have. 2. Although this is a matter between two parties and not the government, if he were to go to court requesting an injunction to have the site removed (which is likely what would have happened had he not abused the copyright system) the government would have been the one issuing the injunction even though it would be at the request of an individual which absolutely would be a 1st amendment issue.
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    - Anonymous Coward, 22 Jul 2014 @ 10:24am
      
      Re: Re: First Amendment
      If however he had simply written Google a letter requesting that they take it down and they voluntarily chose to comply with the request, then yes you are right the 1st amendment would not be applicable.
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  - Mason Wheeler (profile), 22 Jul 2014 @ 10:56am
    
    Re: Re:
    Almost. The L in SLAPP is "Lawsuit," but DMCA takedowns are an extrajudicial abomination designed to allow people to make trouble for alleged pirates without having to go through the hassle of actually coming up with proof that they were doing anything wrong and convincing a court.
    
    Yet another reason why the DMCA needs to be repealed in its entirety.
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- Anonymous Coward, 22 Jul 2014 @ 11:12am
  
  Re: It's Safe Harbor
  This definitely seems like abuse of copyright. I think it draws attention to Youtube's policies more. I state over and over they are a private company and operate under their own policies. How they deal with the DMCA is really up to them.
  
  Google has to respect takedown notices to fulfull safe harbor provisions. Once it's determined that the notice is not valid, it can go back up.
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  - That One Guy (profile), 22 Jul 2014 @ 2:13pm
    
    Re: Re: It's Safe Harbor
    They have to respect DMCA notices, but if the person who fraudulently claimed copyright did so via YT's system, that's not a DMCA claim, and they can ignore it at their whim.
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- This comment has been flagged by the community. Click here to show it
  
  Whatever, 22 Jul 2014 @ 8:04pm
  
  Re:
  Mike Masnick just hates it when copyright law is enforced.
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  - Anonymous Coward, 23 Jul 2014 @ 4:27am
    
    Re: Re:
    Logged out just to post shit again, did you?
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Anonymous Coward, 22 Jul 2014 @ 9:57am

DMCA modification
There is very simple and 100% sure way to provoke congress to modify DMCA for penalties for abuses:
People should simply issue DMCA pull down requests to congressmen web sites.

The proposal to change the law will be immediate and will have a bi-partisan support
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Anonymous Coward, 22 Jul 2014 @ 11:06am

Well I had no idea that law offices were making more money on training landlords how to boot their tenants.

The advice being given by a lawyer, who plainly does not understand copyright law, makes the advice given to landlords suspect. Maybe these landlords are not getting the legal advice they are paying for quite right.

Then again, I knew nothing of this new 'service to landlords' until it showed up on Techdirt. Looks like the Streisand effect is in full bloom.

Nor does the copyright right abuse work so well against censoring what isn't known as it is now all over the internet due to this Daniel Bornstein's attempts, which has made it national famous in the process. I wonder if Mr. Bornstein has reloaded his gun. He still has another foot I assume if he hasn't made this sort of mistake before.

We again see the real need to put teeth into the DMCA law for falsifying claims.
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wallyb132 (profile), 22 Jul 2014 @ 11:12am

DMCA abuse needs to be criminal
Its for reasons like this that DMCA abuse needs to be criminal. There needs to be a realistic and enforceable criminal penalty for blatantly abusing the DMCA. That would stop a whole lot of bullshit across the board
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Anonymous Coward, 22 Jul 2014 @ 11:25am

We know what the copyright forces didn't want penalties on bad faith DMCA laws. The RIAA once claimed while trying to get it passed as a law it would never abuse the process. So much for that claim as it has many times done just that.

But a national law is for everyone to use, not just the RIAA. It is the continued actions from outside players that will eventually result in said penalties. Someone such as Mr. Bornstein will provide the spark to initiate the changes through such an abuse that it can no longer be ignored with the public up in arms about it.
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Padpaw (profile), 22 Jul 2014 @ 12:50pm

corruption starts at the top and makes its way down. Your seeing the trickle down effect of the "free democracy" governments acting corrupt fascists policies now spreading to anyone that wants to abuse peoples rights for personal gain.

Nothing will happen as that would set a precedent to act against those government agencies doing the same things. What do they care how the serfs suffer.
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Rekrul, 22 Jul 2014 @ 1:14pm

"Help shield yourself from embarrassing online videos and articles with the DMCA*."

*DMCA - Damage Mitigation Censorship Act
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Anon, 22 Jul 2014 @ 1:17pm

DMCA Takedown Notice
IIRC, doesn't the DMCA takedown notice have to claim that the taker-downer "owns the copyright" and affirm this under penalty of perjury?

Surely a firm of lawyers that recklessly asserts ownership of a video when they have no such right, and should obviously know the copyright act and the first amendment - well, isn't that something that every Techdirt reader should be bringing to the attention of the state bar association for penalties? Maybe the government isn't going to enforce the "under penalty of perjury" clause, but certainly the California Bar should be concerned about a law firm with reckless disregard for the legalities of displaying either outright falsehood or a criminal level of incompetence about their profession on a sworn declaration?
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David, 22 Jul 2014 @ 1:33pm

Can we get perjury for this one?
The DCMA does have perjury penalties if you claim you own a copyright you do not own. Generally, this means you say "I own Happy Birthday, and YouTube video {thing} infringes on that". If you don't own that copyright on Happy Birthday, that's perjury. And in this case, this was not an automatic takedown.

From arstechnia: “When it came back up [Bornstein] had posted a comment to the video asking me to take it down three months ago, which was news to me because who invites YouTube comments into their life?” West quipped.

So at this point, it would seem Bornstein knew (or should have known) he was not the copyright holder. Yet he claimed via DCMA to be copyright owner. He claims that West was not permitted to post the video, presumably under some perceived contract as being an attendee. But this is not the same as owning the copyright.

Could this be a test case, and maybe get the DCMA to work for the other side for once?
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Anonymous Coward, 22 Jul 2014 @ 2:13pm

Something, something, perjury, something, something
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Whatever (profile), 22 Jul 2014 @ 9:52pm

test case
See, if you guys want to win a test case against false DMCA notices, this is the sort of case you should be pushing. It's a clear abuse, where the person filing the claim seemed to have known up front that they had no real copyright over the material.

It's a much better case than trying to rail against the music industry because you got caught using Justin Beiber in your latest home workout youtube masterpiece!
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- PaulT (profile), 23 Jul 2014 @ 1:29am
  
  Re: test case
  Even when you have an actual point, you still act like an ass and have to devolve into outright lies at the end.
  
  Why do you bother?
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  - That One Guy (profile), 24 Jul 2014 @ 1:06am
    
    Re: Re: test case
    Think of it like digital Tourette Syndrome, where some people simply cannot make a comment without including an insult, personal attack, or similar 'ignore me I'm a child' line to it.
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    - GEMont (profile), 24 Jul 2014 @ 3:01am
      
      Re: Re: Re: test case
      Actually, I think its more like a kind of digital masochism.
      
      Whatever argues against everyone who makes a salient point, in order to incur as much abuse form the crowd as possible.
      
      Luckily, most of us are digital sadists!
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Anonymous Coward, 24 Jul 2014 @ 2:56am

Wouldn't it be much easier to only report on DMCA takedowns that are legitimate.... I'm sure there are far fewer of those.
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