Questionable DMCA Takedown Notice Filed Over Post Calling Lawyer Out For Copyright Infringement

from the carl-david-ceder-is-a-bad-lawyer dept

Mon, Jul 11th 2016 12:52pm — Mike Masnick

Today's the day for bogus DMCA takedowns by clueless lawyers trying to hide embarrassing information, I guess. Earlier today we had a story about a legal exec at Sony Pictures issuing a completely bogus DMCA takedown over his salary info being included in the Sony Hacks email dump. And now we turn to Carl David Ceder, a young criminal defense lawyer in Texas. If you recognize that name, it might be because a much more well-known and established criminal defense lawyer, Scott Greenfield, wrote a few blog posts about young Carl a few years ago, when he discovered that Carl had been beefing up the content on his professional website by simply plagiarizing the content of other, more established legal bloggers, and posting it as if it were his own thoughts. To put it mildly, Carl did not respond well to this and sent a few barely comprehensible rants blaming everyone but himself, and never actually apologizing for copying someone else's content wholesale.

Now, there are lots of ways to deal with this kind of thing. One could admit it was a mistake, but that doesn't seem to be in Carl David Ceder's nature. And, of course, around here, we're certainly willing to consider fair use arguments for copying material, though Carl presents none, and, indeed, it appears there's little fair use claim he could make for what he did. There's a pretty strong argument that he engaged in both plagiarism (claiming someone else's work as your own) and copyright infringement, and from his response, didn't appear to understand either issue, or why some people were concerned about it.

But, today, about a year and a half after Greenfield's original post, it appears that Carl David Ceder has discovered copyright law, but for all the wrong reasons. He sent not one, not two, but three DMCA takedowns for Greenfield's original post. Here's the first one that gets some pretty basic stuff about copyright law wrong:

So, let's start with the basics. Carl thinks he's found a way to get back at Scott, but he's wrong, because it appears he doesn't understand copyright law at all (given his actions earlier in copying content and then lashing out at everyone, perhaps this is not a surprise). First off, the specific copyright claim is not to Scott's overall post, but rather that Scott used Carl's awful headshot in the post, as part of his mocking of Carl.

Now, there are lots of things wrong with this. First off, using an official headshot in reporting on someone is not copyright infringement. It's fair use. This is actually an issue that's come up in court multiple times, and it's always considered fair use. There was the case a few years back of a gripes site that used professional headshots and got sued for infringement. In that case, it was determined that the use of the headshots was fair use and that the lawsuit was clearly a SLAPP suit designed to silence the site. More recently, in a more political context, a judge ruled that using a political headshot on a blog post was also fair use. So, the claim of copyright infringement here is already pretty damn weak.

Perhaps more importantly, as Carl David Ceder seems to directly admit in one of the DMCA takedown notices, he doesn't even hold the copyright in question. Instead, he got the photo taken at his local JC Penney photo studio (classy!), and they retain the copyright, but have granted him a limited license to use the photo. From one of the DMCA notices:

A website that your company hosts (according to WHOIS information) is infringing on at least one copyright owned by my company. An photograph of myself, that has a valid copyright by Lifetouch Portrait Studios Inc (“Lifetouch”) – which I have expressed permission to use, as an authorized user, to reproduce, distribute, and display my photograph.This copyrighted material was copied onto your servers without permission. “Lifetouch” only gave authorized permission for me to use it – they were the photographers when I took this professional headshot. Please find the original document indicated this has a valid copyright, and it is being used in violation of copyright laws, and is infringing on valid copyright laws that apply to the contents of what is in this post. It is noted on the copyright authorization form, that ”Federal and State copyright laws provide that the author of a work is the owner of it. Copying a work WITHOUT the author’s permission is a violation of the law. The only permission given is to the owner of the CD given with the images on it.” The copyright authorization form expre ssly states, “Any other copying is a violation of the copyright law and may subject the violater to criminal and civil prosecution.”

If you'd like, you can also see the full copyright authorization notice. It's a pretty typical authorization notice from these kinds of studios, but Cedar seems to miss out on the fact that while it is giving him a license to reproduce or display the image, that does not necessarily give him the authorization to issue a legal threat over it as he is not the copyright holder. Nor does it appear that he is officially representing the actual copyright holder. Instead, he just quotes some of the authorization, which he appears to totally misunderstand. In giving him a non-exclusive license, Lifetouch still retains the actual copyright, and thus is the only one who can issue such a takedown or take any legal action over the photograph (which it shouldn't do because it's clearly fair use anyway).

And while it's unlikely that Lifetouch gave anyone else a license to use Ceder's image, he doesn't actually know that. Greenfield certainly didn't need a license (it's fair use), but he simply assumes that because Lifetouch gave him a non-exclusive license, it didn't give one to anyone else. Yet he has no evidence of that at all.

Finally, while Ceder quotes the silly and misleading copyright language on the authorization form, that language was meant for him and not for others. That language has no actual impact on Greenfield's use, which again is clearly protected fair use. Besides, that copyright notice is pretty bogus. Even referencing state copyright laws makes no sense, because photographs are strictly covered by federal copyright law, not state copyright laws (which, other than the rare exception of pre-1972 sound recordings, basically doesn't even exist any more). And, again, using a headshot in a blog post with commentary about the person is well-established fair use, so the bogus claim that any copying is infringement is just wrong.

But, really, it's especially silly and ridiculous that this is coming from a guy who pretty clearly did infringe someone else's copyright in copying their entire article, and he's now using his total misunderstanding of copyright to claim that any copying is infringement.

So, hopefully either Greenfield will file a counternotice or the legal team at CloudFlare will reject such a bogus takedown notice (fwiw, CloudFlare probably doesn't host the site anyway, and could only pass on the notice to the actual host). And Carl David Ceder remains on display as a lawyer who doesn't seem to get copyright law at all, and also has a habit of reacting badly to people calling him out for his own bad behavior. Trying to censor Greenfield's post calling him out is pretty ridiculous. Abusing the law by filing a bogus DMCA takedown, falsely representing himself as the copyright holder (or representing the copyright holder), is even more problematic.

Oh, and finally, I emailed Ceder using the email address he included in the DMCA takedown notice which he said was there to email him if CloudFlare wanted "further information." I asked him a few questions about the notice, but the email immediately bounced back, saying that it was an "alias" that was not found on Office365. But... then Carl emailed me back anyway (suggesting that the email does work, but he also tried to set up some sort of alias that failed), claiming he had no idea what I was talking about and didn't even know what the DMCA was. This seems... difficult to believe. The DMCA notice appears to come from his email, and has his signature file as well. It links to a version of that JC Penney copyright authorization that was uploaded to a Scribd account today on an account named "CarlDavid Ceder."

I also called him (voicemail) and emailed again asking how, if this wasn't him, someone else got their hands on this copyright authorization and is now going around pretending to be him and filing questionable DMCA notices on his behalf. In response, he did not answer this question, but again insisted that he has no idea what I'm talking about. I guess it's possible that someone is trying to make him look bad by filing a bogus DMCA notice, though that seems like an awfully weird con -- and it's still not clear how that person would have gotten access to the JC Penney document. The other alternative, I guess, is that Ceder hired one of those online reputation management companies, and they're doing this. But, even if that were the case, then why wouldn't that company include one of its own email addresses as the "further information" email in the DMCA takedown notice (unless that's what the broken email alias is supposed to be). Either way, the Occam's Razor most likely answer is that Ceder did send the takedown, and didn't want to admit it to me, but I'm open to other possible explanations. Seeing as none has arrived as of yet, I believe the existing story stands.

Update: In a series of emails since this post went live, Carl has insisted that he has not read the post, but insisted that he put this matter all behind him, and wanted me to make sure I mentioned that he's now Facebook friends with Dan Hull -- the individual whose work he initially copied -- and also a fan of Brian Tannebaum, another legal blogger we've mentioned here in the past (I'm not even sure what his complaint with Tannebaum is about). He has not yet explained how this DMCA notice was sent (though he insists he doesn't even know what it is). So now I've mentioned both points. It still doesn't explain the DMCA notice at all. Anyway, here's what Carl David Ceder wants me to make sure I put in my post:

In your post, did you mention any of the nice things I mentioned about Dan Hull and Brian Tannebaum? Or did you leave that out. I would like to talk to you in person - because you are being very unclear with your e-mail messages. If you are going to write something about this, I would appreciate you mentioning how, without any time to reflect on how to respond, my first reaction was how me and Dan Hull and have not only reconciled, but have put this matter way behind us. Brian Tannebaum was related to the matter that happened years ago - and I hope you mentioned how I spoke only positively about his new book, and also the e-book he wrote long ago about clients. As a reporter, I hope you did cover the whole truth and all the facts, including the ones mentioned above. I'm not exactly sure what you are accusing me of honestly, but what I do know is I was trying to communicate this matter was put behind me literally years ago. And based on what I said about Hull and Tannebaum, what motive would I have to do something that would bring to the forefront something that happened literally years ago. I still haven't read your article, but I do hope if you did mention things from our correspondence, you reported the whole truth - and did not choose to selectively decide only to include things that would create better fodder for a story where there probably isn't one. Also, I'm not sure if you are an attorney and just blog, but if you are in the legal field, you no doubt realize how time consuming a trial that I am about to begin in two days can consume almost all of your time. As I type this, I am going to interview a potential witness to fully prepare. You seemed to indicate that whatever was done was recent. Look up the Collin County court records and the name of the person I have a trial set for Wednesday. It's a 2nd degree Felony charge with huge ramifications that hinge on the outcome. In your analysis, I hope you considered how unlikely it would be for an attorney to have time to do whatever it is you think was done. I spent almost all of Sunday (yesterday) at the Collin County jail prepping my client for testifying. This is also public record - check the Collin County jail list. You will see where I've spent my time the last 72 hours or so.

So there's that. Don't let it be said that I didn't give him a chance to present his side.

317955552 Headshot Copyright Authorization Nov 2013 (PDF)317955552 Headshot Copyright Authorization Nov 2013 (Text)

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Filed Under: carl david ceder, copyright, dmca, headshots, scott greenfield, takedowns

37 Comments

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That Anonymous Coward (profile), 11 Jul 2016 @ 12:57pm

Wait wait wait I know this one....
Christ what an asshole.

Perhaps we need to get people to admit that when even lawyers don't understand copyright its time for reform.

Or that we have to many shitty lawyers, perhaps we need better standards...

And this... this once again.... just goes here...
https://youtu.be/wWhtcU4-xAM
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- Anonymous Coward, 11 Jul 2016 @ 1:44pm
  
  Re:
  A plagarist; hmmm, I suspect he got his degree by letting others do the study required on his behalf. That would explain his poor grasp of the law.
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- wereisjessicahyde (profile), 11 Jul 2016 @ 2:21pm
  
  Re:
  Lawyers are like assholes. Everyone needs one from time to time but you still wish you didn't need it.
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- Stan Cohen (profile), 2 Sep 2018 @ 12:22pm
  
  Re:
  He got fired from Pirat for exactly the same reason. He either got his degree from an online university where he plagiarized all his assignments or is totally clueless.
  [ link to this | view in chronology ]
Anonymous Coward, 11 Jul 2016 @ 1:05pm

He hasn't been in the news as a copyright infringer in a few years, so he thought he'd just remind everyone about it.
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Industrial IT, 11 Jul 2016 @ 1:11pm

I think there as been some copyright infringement in the comments section let alone in the actual article! Surely there cannot be two anonymous cowards!
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radix (profile), 11 Jul 2016 @ 1:32pm

he simply assumes that because Lifetouch gave him a non-exclusive license, it didn't give one to anyone else.

Depending on his field of expertise, getting copyright law completely wrong might be forgivable, but I'm not sure anybody should be using a lawyer who doesn't know what "non-exclusive" means.
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- Anonymous Coward, 11 Jul 2016 @ 1:43pm
  
  Re:
  why would you get a photo of yourself for publicity reasons and NOT retain the copyright, but have to depend on whatever 'rights' some third party decides to offer ?
  maybe there is some valid reason to do so, but it eludes me...
  [ link to this | view in chronology ]
  - That Anonymous Coward (profile), 11 Jul 2016 @ 1:59pm
    
    Re: Re:
    Because professional photographers expect to be paid well, and he went to JC Penny.
    [ link to this | view in chronology ]
    - Norahc (profile), 11 Jul 2016 @ 2:07pm
      
      Re: Re: Re:
      Because professional photographers expect to be paid well, and he went to JC Penny.
      
      Guess he thought he was a step up from WalMart.
      [ link to this | view in chronology ]
      - That Anonymous Coward (profile), 11 Jul 2016 @ 2:14pm
        
        Re: Re: Re: Re:
        That or he discovered the talent agent who offered to photograph him in the changing room wasn't a professional.
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Anonymous Coward, 11 Jul 2016 @ 1:32pm

It's a Disease
Perhaps we should found a new interdisciplinary research hospital to explore treatment of Internet Notoriety and Socially Inflammatory Publicity Incompetence Disorder. The new home facility for treating INSIPID and related disorders could be called the Ceder-Streisand Medical Center.
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Roger Strong (profile), 11 Jul 2016 @ 1:33pm

One could admit it was a mistake, but that doesn't seem to be in Carl David Ceder's nature.
Nope. He had the opportunity to pass it off as a mistake. But he responded in the comments to Scott Greenfield's original post just to dig himself in deeper. And he kept digging. And digging. And digging. It's his own words that do the real damage, not Greenfield's post.

And good God, he's still digging...
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- Dirkmaster (profile), 11 Jul 2016 @ 1:59pm
  
  Re:
  I hear the "Journey to the Center of the Earth" theme playing in his office.
  [ link to this | view in chronology ]
- Anonymous Coward, 11 Jul 2016 @ 2:14pm
  
  Re: And good God, he's still digging...
  Well, if you are good at something..... you may as well just do it.
  [ link to this | view in chronology ]
brad (profile), 11 Jul 2016 @ 1:57pm

reputation management
I think the guess at reputation management company is correct. In fact, I wonder if he hired a certain reputation management bro whose marketing strategy would likely appeal very heavily to him :V
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- That Anonymous Coward (profile), 11 Jul 2016 @ 2:00pm
  
  Re: reputation management
  OH PLEEEEASE let him have fired PRBro... I need another contact high from his antics...
  [ link to this | view in chronology ]
  - That One Guy (profile), 11 Jul 2016 @ 2:21pm
    
    Re: Re: reputation management
    Now there's a promising reaction, this someone that's been covered on TD before, or some new 'genius' in the field of 'reputation management' that I'm unaware of?
    [ link to this | view in chronology ]
    - That Anonymous Coward (profile), 11 Jul 2016 @ 5:56pm
      
      Re: Re: Re: reputation management
      https://www.techdirt.com/blog/?tag=patrick+zarrelli
      [ link to this | view in chronology ]
      - That One Guy (profile), 12 Jul 2016 @ 3:54am
        
        Re: Re: Re: Re: reputation management
        Oh, him. Time to break out the popcorn and enjoy some classic articles it seems.
        [ link to this | view in chronology ]
  - Norahc (profile), 11 Jul 2016 @ 2:51pm
    
    Re: Re: reputation management
    Hiring PRBro for reputation management, is like hiring John Steele as your ethics advisor...
    
    There's just not enough popcorn in the world for that.
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  - That Anonymous Coward (profile), 11 Jul 2016 @ 5:58pm
    
    Re: Re: reputation management
    gah I ment hired... but you know this...
    [ link to this | view in chronology ]
- orbitalinsertion (profile), 13 Jul 2016 @ 4:22am
  
  Re: reputation management
  And bro just got around to "acting on his client's behalf" suddenly, years later. That would be a hoot.
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wereisjessicahyde (profile), 11 Jul 2016 @ 3:18pm

This really has be seen to believe
This is one of his online ads. It really is quite special...

Carl D. Ceder, DFW Defender - Attorney at Law (www.DFWDefender.com)

https://www.youtube.com/watch?v=gQdX9TYzsRI

Seriously, WFT is going on?
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Mike Masnick (profile), 11 Jul 2016 @ 4:03pm

Updated
Added an update with some details from the latest email Carl has sent me. He wants people to know that he's now friendly with the people he was originally accused of plagiarizing.
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- wereisjessicahyde (profile), 11 Jul 2016 @ 4:24pm
  
  Re: Updated
  Paralegal? Paragraphs is what he really need to work on.
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  - orbitalinsertion (profile), 13 Jul 2016 @ 4:12am
    
    Re: Re: Updated
    I think that is too large a scale. Words, then maybe those sentences...
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- Anonymous Anonymous Coward (profile), 11 Jul 2016 @ 4:53pm
  
  Re: Updated
  Isn't this one of those binary thingys? Friendly or not, he either copied their stuff without attribution, or he didn't.
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  - That Anonymous Coward (profile), 11 Jul 2016 @ 6:01pm
    
    Re: Re: Updated
    I think he is trying to imply that no one is upset anymore so why bring it up... but then there is this DMCA notice all about him, with supporting documents that he know NOTHING about because he is far to busy being super lawyer to have sent such a silly document in an attempt to try and move himself away from such bad search results on the googles.
    [ link to this | view in chronology ]
- Dan (profile), 11 Jul 2016 @ 5:41pm
  
  Re: Updated
  So he was so busy prepping for trial that he didn't have time to submit a bogus DMCA takedown, but he did have time to write a rambling incoherent missive about--well--something. Makes sense.
  [ link to this | view in chronology ]
Padpaw (profile), 11 Jul 2016 @ 5:51pm

what law school is putting out all these lawyers that do not understand basic law?
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Anonymous Coward, 11 Jul 2016 @ 6:54pm

From Carl David Cedar Triples Down:
I was having trouble with a new paralegal, who while doing a great job, was not copying or cc’ing our clients enough. She cut and pasted the rules , and put them up there.
(ie) It wasn't me it was (grabs paralegal and shoves her under the bus) Alice! Yeah, it was all her fault!

Today:
In your post, did you mention any of the nice things I mentioned about Dan Hull and Brian Tannebaum?
Did I say, some of my best friends are law bloggers?

And:
I'm not exactly sure what you are accusing me of honestly, .... I still haven't read your article, .... As I type this, I am going to interview a potential witness to fully prepare.
I know how to find out what you're talking about, but I'm a busy, busy man, no time to talk.

I have to wonder if this, too, was email via cell phone. And if so, how he found the time.
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radarmonkey (profile), 11 Jul 2016 @ 9:59pm

Benefit of the doubt
Whether or not CDC wrote the DMCA notice, he spent more time on his response that the person who did write it..... and it makes just about as much sense.

(PS - You'd think after all these years, the man would learn how to paragraph!)
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Anonymous Coward, 11 Jul 2016 @ 10:39pm

Malibu Media or any of the other numerous trolling firms are probably hiring, Cedar seems like he'd fit in nicely there as another pathetic copyright troll.
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Anonymous Coward, 12 Jul 2016 @ 6:12am

you'd think that if he truly didn't know what was going on his first response would be, "Someone is doing WHAT? with MY NAME on it?" -- if the bank calls you about a fishy loan for a ton of money that you don't know anything about, you don't say, "sry, tl;dr. i'm busy bruh"
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Adam V, 12 Jul 2016 @ 8:06am

> I would like to talk to you in person - because you are being very unclear with your e-mail messages.

Don't forget Mike, if you do go meet with him in person, make sure you bring a first aid kid.
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- orbitalinsertion (profile), 13 Jul 2016 @ 4:17am
  
  Re:
  Never impugn my integrity again. Or trust me.
  
  Need. Oxygen...
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