DMCA Takedown Company Thinks It's Making A Point With 'Transparency Report' -- Really Just Looks Like A Jackass

from the what-point-are-they-making-really dept

Tue, Aug 2nd 2016 3:25am — Mike Masnick

Over the weekend, TorrentFreak picked up on yet another weird case of some copyright extremists trying to "make a point" but really just coming across as jackasses instead. It involves one of a group of wacky companies that promise to help issue DMCA takedown notices for copyright holders. In this case, it's an outfit called "Remove Your Media" (creative!) which put up a Tumblr site and a tweet pretending that it was "turning the tables" on the famous and useful Lumen Database (formerly known as the Chilling Effects database):

If you went to that website, for at least a little while, Remove Your Media was posting full details of people who filed counternotices to some of its DMCA takedowns. These postings made no effort whatsoever to redact personal information such as emails and phone numbers (TorrentFreak has an image where it redacted the info itself).

The "point" that Remove Your Media is so weakly trying to make is that there is a tiny group of copyright extremists who think that Lumen / Chilling Effects is itself a source of piracy because in posting DMCA notices, it leaves the links that copyright holders are demanding be taken down (it's noteworthy that Lumen does redact personal information, though). Of course, these are apples to oranges differences. The reason that Lumen leaves up those links is because the whole point of Lumen is to act as a clearinghouse of data for people to understand how the DMCA is used. And, in fact, it's been an invaluable tool for us and other researchers in finding examples of DMCA abuse. That would be significantly more difficult if the links in the notices were redacted. In fact, it would take away nearly all of the value of the database.

In response to the TorrentFreak article, it appears that Remove Your Media has taken down the information that it posted, and replaced it with a link to the head cheerleader of the anti-Lumen/Chilling Effects crowd, Ellen Seidler. Seidler has spent many, many, many years ~~tilting at windmills~~ complaining about piracy, which she blames for the poor performance of her poorly reviewed film (which, amusingly, borrowed its title from a much more famous movie). Just a few months ago, at the Copyright Office hearings in San Francisco, Seidler again raised this issue of Lumen itself being some sort of "rogue site" for posting DMCA notices.

However, as was pointed out at the time, there is basically no evidence whatsoever that Lumen is used as a source to find pirated links to any extent that matters at all. Without any evidence of pirate hordes searching an academic database of DMCA takedown notices, this hardly seems like a worthwhile thing to bitch about. And, besides, what Remove Your Media did in "turning the tables" doesn't even make the point it wanted to make. There's a world of difference between posting the details included in a DMCA notice in such a database, and deliberately revealing someone's private info. One is a legitimate attempt to collect useful data on how DMCAs are being used.

The other is just acting like a complete jackass.

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Filed Under: database, dmca, ellen seidler, takedowns, transparency
Companies: lumen database, remove your media

32 Comments

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Yes, I know I'm commenting anonymously, 2 Aug 2016 @ 3:58am

Or..
Or, they are trying to `discourage' people from filing counternotices.
The goal here is to make them pay-up immediately.
(Dealing with counternotices costs extra money.)
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orbitalinsertion (profile), 2 Aug 2016 @ 4:14am

#Our business model is being dicks
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Anonymous Coward, 2 Aug 2016 @ 4:34am

Jackass not sure, but is that legal?

At least, in the EU, you'd have some grounds to bring the case to the EU Data Protection authorities.

In fact, I'm asking myself if people from the EU could sue them. They are a US based company, but they are operating with EU data, so they have to follow European laws.

Well, more or less, I guess...

Not sure if the data also include names, but it isn't that hard to link a name to a phone and to an email if you have the proper (illegally obtained) data.

And yes, phone numbers aren't always public information. Home phones are public, but mobile phones not so much. It isn't even allowed to keep a phone guide of mobile phones.

PS: now, it's things like these why the Europeans don't trust in US companies to handle their personal data; and why the Privacy Safe Harbour was challenged (and the new one will, most probably).
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Kode (profile), 2 Aug 2016 @ 4:44am

Re:
Yes it included name as well as full address, telephone number and email address, I know because I was one of the people quoted in the torrentfreak article, basically it was the data that you are required to submit as part of a counter notice
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Sadalbari, 2 Aug 2016 @ 4:57am

Re:
Jackass not sure, but is that legal?

The way the twisted law works, the "special" people in the copyright industry can get away with all kinds of things that other people can't.
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just a guy, 2 Aug 2016 @ 4:59am

re: lumen database
One other point about the Lumen database is that the links are already dead, unless the takedown was countered.
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Anonymous Coward, 2 Aug 2016 @ 5:09am

Re: re: lumen database
Many of those issuing DMCA notices target Google, which if the notice is accepted, results in the page link disappointing from the search results, but the page still exists. In such cases the page is still available via the link, which is its Internet address.
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TexasAndroid (profile), 2 Aug 2016 @ 5:53am

Re:
If they went after RYM in the US for this, it would be subject to US laws, and the First Amendment would apply, I would think. Something can be totally scummy, and still be protected speech. In fact, that's one of the key points of the FA.

If they went after them in the EU, even if they won, when they tried to collect against a US company they would quickly run up against the Speech Act. Foreign judgements that would not have gotten past the FA in the US cannot be collected in the US.

Both the FA and the Speech Act are critical instruments for defending free speech here in the US. But we have to accept that it protects the speech of jackasses as much as the speech of saints.
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PaulT (profile), 2 Aug 2016 @ 6:13am

Re: re: lumen database
Not exactly, although it is telling that they apparently do seem to understand the reasons why not. As deranged as these attacks often seem to be, I suspect they understand that the attacks are useless in the first place, and they just don't want a reliable record of their failure.

First, most of these notices are not filed against originating hosts, they're filed against 3rd parties like Google, Twitter and Reddit. So, even if successful, the DMCA notice would not affect the original link and the content is still available. All the DMCA notice will have done is removed it from Google's index and placed it in Lumen's.

Second, if the takedown was successfully countered, then by definition it should not be infringing under the terms of the DMCA and there's no problem with it being in the Lumen database.

Similarly, there's also the point that the reason the Lumen database exists to begin with is to keep track of DMCA abuse, meaning that there are many links that were never problematic in the first place, and so will rightfully remain active.

So, claiming the Lumen database is a problem to begin with is a near-admission of the fact that they understand that DMCA notices against 3rd parties is useless, yet it seems to be the tool they claim is needed. They need an easy target, and going after those actually infringing is somehow too difficult.
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Anonymous Coward, 2 Aug 2016 @ 6:55am

By and large, the Chilling Effects reports are pretty useless as a source for links to pirated material. DMCA takedowns, especially those aimed at Google search results, tend to not be complaints about one singular link. Instead they tend to be multiple related links, essentially a company batching everything they want Google to remove links for at the moment. The result is a mess that simply isn't worthwhile to search through, your time is better spent with more googling.
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Anonymous Coward, 2 Aug 2016 @ 7:30am

Without any evidence of pirate hoards* searching an academic database of DMCA takedown notices, this hardly seems like a worthwhile thing to bitch about.

*hordes

hoard
hɔːd/
noun
1.
a stock or store of money or valued objects, typically one that is secret or carefully guarded.
"he came back to rescue his little hoard of gold"

horde
hɔːd/
noun
a large group of people:
"hordes of students on bikes made crossing the road difficult"

Sorry, I'm a bit of a nazi where this kind of thing is concerned.
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Anonymous Coward, 2 Aug 2016 @ 7:32am

Re:
Your understanding of the Internet is as bad as the MAFIAA's. Google is not the Internet, and removing links from a Google search does NOT invalidate the link. To invalidate a Link the take-down request MUST be sent to someone with the capability of actually removing the identified page or file.
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Anonymous Coward, 2 Aug 2016 @ 7:47am

Re: Chilling Effects not useful for piracy
I came to post a related point. In addition to parent's point that the results tend to be batched, there is the problem with bogus takedowns, which Lumen is designed to highlight. If copyright holders had a high accuracy rate (that is, they rarely DMCA'd links that are not infringing), Lumen would have less research value and large piracy value. The reality is that copyright holders are so laughably inaccurate that Lumen is an excellent research tool and a terrible piracy tool because so many of the links shown in the notices are not for infringing material. So even if parent's point was wrong (which I don't think it is) and companies were doing a good job of keeping to one DMCA notice per infringed work, the success rate for finding actual infringing work from the DMCA notice links would be too poor to bother.
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Anonymous Coward, 2 Aug 2016 @ 8:13am

Anyone else reminded of this teeny story:
https://www.techdirt.com/articles/20160728/18041935099/how-californias-identity-fraud-law-has- been-interpreted-to-criminalize-defamation-publicity-rights-violations-more.shtml
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Anonymous Coward, 2 Aug 2016 @ 8:59am

Re: Re:
And why publishing private data of citizens is even speech?

So a lawyer or a doctor can make public data about his customers and he's protected by freedom of speech?

In fact, those citizens can sue that company for putting them at risk (of terrorists or hackers, for example) for publishing their personal data.

I'm not that sure that it would be covered by Freedom of Speech.

And also, if that company doesn't comply with EU rules, an EU Court could perfectly rule that she can't operate with EU based customers, nor send DMCAs or any other kind of notice to EU based companies (some follow them).

And again. People get surprised at what happened with the EU-US Data Safe Harbours?
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Anonymous Coward, 2 Aug 2016 @ 9:06am

Re: Re: re: lumen database
Perhaps they can send a DMCA takedown notice to Lumen but why even bother, why not just send it to the content originator directly instead? Wouldn't that make more sense than going after every third party that links to the content? and if the originator does successfully counter notice then any third party that links to the site can then legally link to the site.

But lets say Google or Lumen counter notice successfully. Then that would imply that the content is being legally hosted by the originator and that any third party linking to it can legally do so as well.

I guess the reason for going after third parties is that they'll be far far less likely to counter notice and they will also be in a far worse position to defend against the takedown notice being that the originator of the content knows much more about it (ie: if they are licensed to use it or do they plan to use a fair use defense, do they own the content or not). This is especially useful if you suspect that you will lose a counter notice if you went after the originator but you are much more likely to either win against a third party that links to it or you are much more likely to just get them to take down the content without a challenge that you might lose to.

This can be a huge problem. If you want to quell political speech say at a critical time during an election you can simply file a bogus takedown notice against a third party that hosts the content and effectively reduce the traffic to the content. The third party will likely just shoot first and ask questions later being that the law is so one sided against them. Then, after the critical period has passed, perhaps the content can then be restored. Thanks to the entirely one sided nature of the law you will likely face almost no legal repercussions for filing a bogus takedown.
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Anonymous Coward, 2 Aug 2016 @ 9:14am

Re: Re: Chilling Effects not useful for piracy
Perhaps part of the reason for going after third parties, in opposed to the content originators, is exactly because you know the content doesn't infringe and that a third party will be less likely and able to defend against a bogus takedown.
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Anonymous Coward, 2 Aug 2016 @ 9:27am

Re:
But pirate hoards, buried on desert isles, is a well worn trope!

Few of them had computers, let alone internet access...
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Anonymous Coward, 2 Aug 2016 @ 9:35am

Re: Re: re: lumen database
if the takedown was successfully countered, then by definition it should not be infringing under the terms of the DMCA

That's not exactly accurate. If material was restored following a counter-notice, that doesn't mean it's not infringing. It just means that whomever filed the takedown notice didn't proceed to file a lawsuit post-counterclaim.

I work for a US-based hosting provider. I recall one particular occasion a few years ago where a blog post author sent us a DMCA notice because her post was copy/pasted in its entirety to one of the sites on our network. In my non-lawyer opinion, there was no fair use basis for the copy (No commentary, nothing transformative, etc.).

Our customer sent in a counterclaim. When we notified the author of the counterclaim and informed her that she would now have to file a lawsuit to keep the material down, she said that she couldn't afford to do that and dropped the complaint.

Other interesting tidbits: Of the DMCA notices we receive, most of them are not for TV/film or music piracy issues - they tend to be unlicensed photos or content copied from another site. Counter-notices are submitted on less than 1% of all received DMCA notices.
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That One Guy (profile), 2 Aug 2016 @ 10:02am

Re: Re:
But that can't be, time and time again I've seen people insist that filing a counter-notice is just as easy and hassle free as making a DMCA claim, are you telling me that it actually has potential downsides? Risks that aren't mirrored in the requirements to demand something be taken down?

Utter balderdash, you simply must be mistaken, as the only alternative would be those people being wrong, which I'm sure can't be the case.

/s
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Mike Masnick (profile), 2 Aug 2016 @ 10:06am

Re:
Sorry, I'm a bit of a nazi where this kind of thing is concerned.

No, thanks for pointing it out.

I know the difference... just a total brainfart.
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Uriel-238 (profile), 2 Aug 2016 @ 10:32am

Modern hordes of pirates also have hoards
Mostly porn I... suspect.
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Anonymous Coward, 2 Aug 2016 @ 10:56am

"there is basically no evidence whatsoever that Lumen is used as a source to find pirated links"

That's because anyone who tried would immediately find that the vast majority of links were auto-generated garbage that did not lead to any actual content.

It seems obvious that auto-DMCA companies are intentionally padding their submissions to get a bigger paycheck from copyright owners, but it's also possible that copyright owners don't mind in the least that they're flooding Google with bogus copyright claims because it makes the ChillingEffects site next to worthless for anyone using the site as a source for finding infringing content.
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That One Guy (profile), 2 Aug 2016 @ 11:27am

Re:
It seems obvious that auto-DMCA companies are intentionally padding their submissions to get a bigger paycheck from copyright owners

While that might be the case for some I imagine for most it's simply that the complete and utter lack of any penalty for bogus claims means they have no incentive to be accurate, so they write the programs they use to cast as wide a net as possible in order to find as much 'infringement' as possible with the least amount of work.

That large amounts of what's found and demanded taken down isn't infringing isn't a problem for them given the lack of penalties on that side of the law, and as such they simply don't care to fine-tune the programs or double-check the results for accuracy before sending out the claims.
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Anonymous Coward, 2 Aug 2016 @ 11:59am

"The other is just acting like a complete jackass."

Which is exactly what being a baby about this makes you, Masnick.

What's fair for one side is fair for the other.
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That One Guy (profile), 2 Aug 2016 @ 1:57pm

Re:
So just to be clear, you're perfectly fine with exposing personal information of others in retaliation for their completely legal actions? You see nothing wrong with that at all to the point that calling out such behavior is 'being a baby about [it]'?

Really, if you're going to throw around insults could you at least put some effort into it next time, maybe pick who and what you're going to defend just a little bit better? Because defending petty retaliatory actions just leaves you looking no better than they are, something I doubt you're very keen on.
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Anonymous Coward, 2 Aug 2016 @ 2:44pm

Re:
Personal insults always win friend and arguments, boy.
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Anonymous Coward, 2 Aug 2016 @ 6:00pm

Re:
So after the schoolyard bully is shamed for his antisocial behavior, you support his attempts to publicly humiliate his victims. The parallels and insinuations to LARPing have started to make sense - you're the sort of jackass that gets off waving his dick around just to feel superior.
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Gemma, 2 Aug 2016 @ 6:57pm

Re: Re:
Because defending petty retaliatory actions just leaves you looking no better than they are, something I doubt you're very keen on.

Heh, maybe that comment was from one of *them*.
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PaulT (profile), 3 Aug 2016 @ 12:18am

Re: Re: Re: re: lumen database
OK, thanks for the information!
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PaulT (profile), 3 Aug 2016 @ 1:25am

Re: Re: Re: re: lumen database
"Perhaps they can send a DMCA takedown notice to Lumen but why even bother, why not just send it to the content originator directly instead? Wouldn't that make more sense than going after every third party that links to the content?"

Well, yes, that makes more sense. But, they then have to deal with thousands or millions of individual hosts, most of who are not based in the US. They also miss the publicity of going after a large target and the press/propaganda that gets them (look at the comments of the trolls coming out of the woodwork every time Google reports how many notices they deal with).

With these people, it's usually easier and even advantageous for them to file millions of ineffective notices to a handful of large 3rd parties than filing equally ineffective notices against actual infringing hosts. In the same vein, filing more notices against Lumen is less effective as propaganda than whining about its database.

"Thanks to the entirely one sided nature of the law you will likely face almost no legal repercussions for filing a bogus takedown."

Yes, that is the major problem with the DMCA. An innocent 3rd party can be greatly affected by a false notice, but there's rarely any punishment for filing such a notice.
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That One Guy (profile), 3 Aug 2016 @ 9:08am

Re: Re: Re: Re: re: lumen database
Yes, that is the major problem with the DMCA. An innocent 3rd party can be greatly affected by a false notice, but there's rarely any punishment for filing such a notice.

'rarely any'? Offhand I'm not aware of any, ever. The worst those that file bogus claims seem to have to deal with is telling a judge "I(or more often 'The program') made a mistake, my bad", and that's the end of it. That's not a punishment, that's not even a slap on the wrist.
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