Venture Beat Reporter Abuses DMCA To Silence A Critic

from the it's-about-ethics-in-dmca-takedowns dept

Thu, May 10th 2018 1:35pm — Mike Masnick

Remember when people kept insisting that the DMCA was never used for censorship? Yeah, about that. Last week, we were alerted to how a reporter from VentureBeat/Gamesbeat by the name of Jeffrey Grubb had sent a DMCA notice for screenshots on a tweet by Jake Magee, who tweets under the account PhoxelHQ. Magee had taken a few screenshots of an article by Grubb and put up a tweet criticizing it. This is quintessential fair use, whether or not you agreed with Magee.

Apparently Grubb wasn't thrilled about Magee adding some commentary to Grubb's game review, and did what any reasonable adult would do: run to the DMCA to shut up a critic:

I have a bunch of concerns about this -- starting with the fact that unless VentureBeat gives its staffers their own copyrights, this is quite likely copyfraud, as the copyright would likely belong to VentureBeat, and Grubb is falsely claiming to be the copyright holder. I emailed VentureBeat to ask them who holds the copyright on its articles -- the company or the journalists -- and got no response. Ditto for my emailed question about whether or not they had any further comment on the situation.

Grubb's response to all of this has been... bizarre to say the least. He first claimed that he filed the DMCA notice because the screenshots reproduced the article in full. But when Magee pointed out it was actually around 30% of the article, Grubb apologized but only for using the word "entire", and not for the fraudulent DMCA filing. Separately, Grubb has repeatedly claimed he wouldn't have sent the DMCA notice if Magee had provided a link to the original article.

While providing a link might have been nice and courteous, it is, in no way, required. The whole point of fair use is that it is, by it's very nature, permissionless. If you needed permission, that would mean you need a license, and that by definition would mean it's not fair use. The conditions on fair use are set by the law and not by the copyright holder. If the conditions were set by the copyright holder, there wouldn't be any fair use at all (and, again, it's not even clear that Grubb is the copyright holder here!).

What's striking about the Twitter discussion back and forth between Grubb and Magee is just how much it's clear that Grubb couldn't care less that he abused the law to silence someone. He makes repeated flippant and jokey comments about Magee and Magee's supporters, and his only apology was for falsely claiming that Magee posted the entire article.

If section 512(f) of the Copyright Act had any actual force, Grubb might actually be in some legal hot water for filing a bogus DMCA notice. Lucky for him, the courts have mostly rendered it entirely toothless. Still, it remains incredible how many people see the DMCA as a "censor this thing I don't like" tool. Copyright is a tool for censorship, and you can argue that some of that censorship is completely reasonable and okay. But as a tool for censorship it is quite frequently abused. And this is just one more example. That it's being done by a journalist for a well known publication is that much more troubling.

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Filed Under: censorship, copyright, criticism, dmca, fair use, free speech, jake magee, jeff grubb, takedowns
Companies: twitter, venturebeat

48 Comments

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Reader Comments

The First Word

“

I think it allows for the expression of ideas, and there for increases the value of spread ideas, without fear (or at least a reduced fear) of loss

You've reversed this a bit. Ideas, being intangible, cannot be lost. If someone else takes your idea, you still possess the idea, you haven't lost it. The natural state is that an idea is valueless, and in fact prior to copyright ideas were not widely considered valuable. Instead the people who came up with them were valuable, and would be sponsored by others to produce new ideas (and various other things). This is a simple explanation of the patronage system, most commonly associated with Renaissance era Europe (at least in the West).

In other words, fear of loss is a product of copyright, not a justification for it. Copyright produces the value which you are afraid to lose, and absent copyright there would be no value for you to lose.

What copyright actually does is introduce a hope of some gain from your idea. If other people like it, copyright says that you can ask for compensation from them in exchange for use of that idea even after it has been released. Thus copyright says: release your idea publicly, because by doing so you stand to gain something.

As an aside, copyright is relatively rarely involved with claiming someone else's idea as your own. It happens certainly, most often in music (though I have my own issues with much of that case history), but it's a small fraction of copyright enforcement by volume. Copyright is mainly concerned with unauthorized distribution with proper attribution to the creator (media (TV, movie, video game, book) pirating, fan art/fan fiction, etc.) or unauthorized distribution with no attribution at all (things like stock photos, fonts, etc). The area of copyright covering claiming another's idea as your own is both the smallest in total volume, and by far the least problematic in my opinion. Though that may be because it is the only area of copyright in which litigation is the norm, rather than the exception.

—Anonymous Coward

”

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Gary (profile), 10 May 2018 @ 1:41pm

Gasp
DMCA is never a censorship tool! Must all be a misunderstanding. Which the courts have ruled is fine by them.Even mass take downs by bots are Ok, as long as they meant well.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 1:53pm

More Copyright!
We need more of this!
/s
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 2:25pm

The only good response
If Venture Beats fires Grubbs and does an article about the dangers of abusing copyright, this will end well. All other options will be bad for everyone involved on the VB side.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Ann Nomaly-Central reporting on another anomaly ch, 10 May 2018 @ 2:34pm

Techdirt's schtick is to take one in millions and claim is the
norm and totally discredits copyright / DMCA.

You've come up with NO legal or even valid arguments in 20 years of trying. That's... Masnickism.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 2:39pm

Re: Gasp
lol, so one rotten apple spoils the barrel

hope that never comes back on ya

it'd be like "one pirate torrent means their all stolen"
[ link to this | view in thread ]
michael, 10 May 2018 @ 2:51pm

Re: Techdirt's schtick is to take one in millions and claim is the
Considering Google alone receives 100-million DMCA notices per month, "1 in a million" -- which is much lower than any knowledgable person would estimate -- people being silenced turns out to be a significant number of people.

Are there any other Amendments you hate, or is it just the first one?
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 2:52pm

Re: Techdirt's schtick is to take one in millions and claim is the
Hi troll.
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 2:53pm

Re:
If a law can be abused, it will be abused, and even one abuse is reason enough to consider the merits of that law and how it should be fixed to prevent widespread abuse. The DMCA is open to widespread abuse and no one with the power to change it has done anything to do so. So long as the DMCA remains as-is, and so long as it can be abused, it will be abused—and those who see that as a bug instead of a feature will say so until either the DMCA is fixed or we can no longer speak out.

If you want to have a good-faith discussion on the issue, feel free to raise an actual point instead of a middle finger. If not, die angry about your ad-hom-dominated contrarianism not getting the automatic respect you think it deserves.
[ link to this | view in thread ]
Chip, 10 May 2018 @ 2:54pm

When I wrote the following pages, or rather the bulk of them, I
20 Years of "Anomalys" means there are No legit examples of DMCA abused! Stupid Techdirt! Stypuid Sycophantic "Idiots"! Not "msart" like Me. I every Very "smart"!

Why Every time you say is a DMCA abuse, it is an Anomaly, "Techdirt"? Huh! Why wou Report SO many "Alomalys"! Stupid! You are so "Stupid" that you have been Rporting Anomalys! For 20 yers! Hundreds of "Anomalies"! Why so many Anomalys, Techdirt!

Every Nation eats the Paint chips it Deserves!
[ link to this | view in thread ]
Roger Strong (profile), 10 May 2018 @ 2:56pm

Re: Techdirt's schtick is to take one in millions and claim is the
Tens of thousands in millions. Bogus takedowns are well documented as a VERY common thing.

Your saving grace is that your dishonesty is consistently obvious.
[ link to this | view in thread ]
Sharur (profile), 10 May 2018 @ 2:57pm

Re: Re: Techdirt's schtick is to take one in millions and claim is the
I think most Americans tend to hate the 16th amendment in April...not sure if I'm being sarcastic or not.

I also think the 18th was a horrible overreach that indirect killed at least hundreds, and that we are effectively recreating with our current "War on Drugs" mentality, but that's just me as a teetotaler, I think.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 2:58pm

Re: Re: Gasp
just "one" little rotten apple

(lol, rolls eyes)
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 3:00pm

Re: Techdirt's schtick is to take one in millions and claim is the
Talk about lying.
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 3:02pm

Re:

there are No legit examples of DMCA abused

Ashley Madison abused it. HBO did, too. Even lawyers have abused it in attempts to silence critics. Automattic once admitted that most of the time it spent on dealing with DMCA notices was spent on false notices. Google said something similar last year.

And all those individual links are on Page 1 of the search results for “dmca abuse” on this site. For someone who makes bold proclamations of fact, you sure as shit failed to do your research before you declared your opinion as the word of God.
[ link to this | view in thread ]
Sharur (profile), 10 May 2018 @ 3:04pm

I think copyright law, and yes, it's enforcement, is a good idea.

I think it allows for the expression of ideas, and there for increases the value of spread ideas, without fear (or at least a reduced fear) of loss from (insert plural curse word of your choice here) who would steal another's idea and work and claim it as their own.

However, the DMCA, and its out of court enforcement system, is a horrible implementation and ripe for abuse, and frequently abused in practice.

Then again, if we had more clarity as to what is and is not fair use, that would be good too. "I know it when I see it" is almost always absolutely attrocious.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 3:04pm

Congrats blue this is your one-millionth and one anomaly!
[ link to this | view in thread ]
The_Jerk, 10 May 2018 @ 3:06pm

Re: Techdirt's schtick is to take one in millions and claim is the
Go away weird astroturf troll.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 3:08pm

Re: Re: Gasp
"lol, so one rotten apple spoils the barrel"

That reminds me of an old saying ... hmmm how did that go?
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 3:10pm

Re:
Copyright does not allow for the expression of ideas—it incentivizes the fixed expression of ideas. People were expressing ideas long before copyright was a thing, and they will do it long after copyright stops being a thing.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 3:11pm

Re: Techdirt's schtick is to take one in millions and claim is the
Which magical percentage of flaws must be reached before you stop pretending that everything is perfect and nothing should be changed?
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 3:11pm

Re: Re:
Have you and Chip not met?
I'm sorry, let me .... ummm, chip is our pet satirical lead paint enthusiast.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 3:12pm

Gamergate Reloaded - the eternal Social Justice Wars
Mike Masnick (perhaps wisely) carefully steers clear of the highly-controversial topic of "SJWism" -- even when it's integral to the story. So I can somewhat understand why he doesn't want to quote Phoxel's actual tweet, those "fighting words" that ignited the whole firestorm ... so I will:

"it's almost like it's impossible for game journalists to enjoy any game that doesn't contain heavy-handed, shoehorned, progressive political posturing. why does every game need to be a reflection of the divisive politics of today, no matter how out of place?"

Heated emotional topics tend to draw insanely vindictive responses from people on both sides of the debate, and that war-of-words known as Gamergate turned out to be quite a no-holds-barred slugfest in this regard. The DMCA, as the ultimate weapon available to silence opponents, especially those who lack major corporate backing, was widely abused (if not fraudulent spewed) throughout Gamergate. This VentureBeat/Gamesbeat writer is just continuing to carry on that tradition of DMCA abuse that became largely reflexive in the 21st century's ongoing Social Justice Wars.
[ link to this | view in thread ]
Chip, 10 May 2018 @ 3:13pm

Re: Re:
All of"those" are Illegitimate "Anomalys"!

Every Nation eats the Point chips it Desrves!
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 3:14pm

Re: Re: Re:
Satire is not bankruptcy; you cannot just declare it. And if he does not want to be confused for a troll, he should stop acting like one.
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 3:34pm

Re:
In fairness, the text of the tweet was not what was being targeted by the DMCA takedown; the writer was targeting the screencaps of the article that the tweet criticized. Any opinions of Phoxel’s tweet are immaterial to the DMCA situation.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 3:44pm

Re: Re:
the writer who had no right to submit the DMCA takedown request in the first place you mean?
[ link to this | view in thread ]
Thad, 10 May 2018 @ 4:33pm

Re: Re: Re: Re:

And if he does not want to be confused for a troll, he should stop acting like one.

A thing acting like it's a different thing is kinda what satire is, dude.

The Onion acts like a newspaper. This Is Spinal Tap acts like a documentary about a band. A Modest Proposal acts like, well, a proposal.

If you read a pamphlet suggesting that the Irish should solve their famine by eating babies and you think it's for real, that's kind of on you.

And if you read a post that contains the opening of Walden in its subject line, immediately descends into typo-ridden gibberish, and ends by professing a love of eating paint chips, and you think it's for real, that's kind of on you too.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 4:53pm

Re:
I think it allows for the expression of ideas, and there for increases the value of spread ideas, without fear (or at least a reduced fear) of loss

You've reversed this a bit. Ideas, being intangible, cannot be lost. If someone else takes your idea, you still possess the idea, you haven't lost it. The natural state is that an idea is valueless, and in fact prior to copyright ideas were not widely considered valuable. Instead the people who came up with them were valuable, and would be sponsored by others to produce new ideas (and various other things). This is a simple explanation of the patronage system, most commonly associated with Renaissance era Europe (at least in the West).

In other words, fear of loss is a product of copyright, not a justification for it. Copyright produces the value which you are afraid to lose, and absent copyright there would be no value for you to lose.

What copyright actually does is introduce a hope of some gain from your idea. If other people like it, copyright says that you can ask for compensation from them in exchange for use of that idea even after it has been released. Thus copyright says: release your idea publicly, because by doing so you stand to gain something.

As an aside, copyright is relatively rarely involved with claiming someone else's idea as your own. It happens certainly, most often in music (though I have my own issues with much of that case history), but it's a small fraction of copyright enforcement by volume. Copyright is mainly concerned with unauthorized distribution with proper attribution to the creator (media (TV, movie, video game, book) pirating, fan art/fan fiction, etc.) or unauthorized distribution with no attribution at all (things like stock photos, fonts, etc). The area of copyright covering claiming another's idea as your own is both the smallest in total volume, and by far the least problematic in my opinion. Though that may be because it is the only area of copyright in which litigation is the norm, rather than the exception.
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 5:12pm

Re: Re: Re: Re: Re:
Like I said: Satire cannot just be declared. I could post exactly like Ol' OOTB does, but that would not make it satire. What makes something satire is that it has a target and a message. Chipper there might have a target, but his message is obscured by the delivery (which reminds me of another saying I have become fond of lately: “Intent does not override execution”).

If you post like a troll, and you come off as a troll, and you do so in a way that does not differentiate you from an actual troll…well, you might have become an actual troll when you were only trying to pretend you were one.
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 5:14pm

Re: Re: Re:
Yes, I did; I apologize for any misunderstanding on that point and I will do better to watch for such mistakes in the future.
[ link to this | view in thread ]
That One Guy (profile), 10 May 2018 @ 5:36pm

Re: Re: Re: Re: Re: Re:
I can sorta get the poe factor, but I do have to wonder, how have you missed Chip's brand of humor this long that you'd think they were at all serious? They've been around several months at least by this point.

They are pretty clearly a parody of a few of the regulars here, taken to the (even more) extreme, with their tagline a parody version of one of the favorite lines from them.
[ link to this | view in thread ]
Stephen T. Stone (profile), 10 May 2018 @ 5:44pm

Re: Re: Re: Re: Re: Re: Re:
I do not think they are serious. That does not prohibit me from posting a sincere response to them.
[ link to this | view in thread ]
anon, 10 May 2018 @ 5:59pm

Isn't his name Jeff Grubb, not James Grubb?
[ link to this | view in thread ]
That One Guy (profile), 10 May 2018 @ 6:04pm

Re: Re: Re: Re: Re: Re: Re: Re:
Eh, that's fair, I've done that myself a few times('I doubt you're serious, but just in case you are...').
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 6:08pm

Re: Re: Re: Re: Re: Re:
Well, it's a good thing he didn't declare anything, and instead used words and context to make it clear to others that it was satire.
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 7:01pm

Re: Re:
Confusing copyright infringement with plagiarism, you'll find, has been the standard way for copyright education to elicit an emotional response. It's also complete and utter bullshit.
[ link to this | view in thread ]
That One Guy (profile), 10 May 2018 @ 10:10pm

Objection, calling that 'education' is an insult to the word
Confusing copyright infringement with plagiarism, you'll find, has been the standard way for copyright education to elicit an emotional response

Along with mixing copyright infringement for forgeries and potentially unsafe drugs, putting it right alongside child porn and terroristic content in a loaded questionnaire, constantly referring to it as theft, comparing it to rape...

(And no, none of that is hyperbole, I have seen examples of all of those in my years of reading TD.)
[ link to this | view in thread ]
Anonymous Coward, 10 May 2018 @ 10:18pm

Re: Objection, calling that 'education' is an insult to the word
Oh, you'll get no disagreement from me about those examples. I just find the education (read: propaganda) is a particularly egregious example due to its usage in schools. It's an obvious attempt to pull the wool over impressionable eyes by confusing legal concepts, and toss in a little "This is mine! You wouldn't feel good about it!" petulance for good measure.

The good thing is, more kids are becoming tech-savvy and can easily see past these pathetic attempts at bullshit.
[ link to this | view in thread ]
Anonymous Coward, 11 May 2018 @ 2:52am

Re: Re:

it incentivizes the fixed expression of ideas.

Wrong, there are all sorts of reason to fix the expression of ideas, and one only needs to take a quick look around the Internet to see how many people engage in the creation of new works, many with no intent of making a profit.

The people who are most incentivized by copyright are those whose business is gaining control over the works of others for their own profit.
[ link to this | view in thread ]
Anonymous Coward, 11 May 2018 @ 8:06am

Re: Re: Re:
"gaining control over the works of others for their own profit."

aka: grifters
[ link to this | view in thread ]
Anonymous Coward, 11 May 2018 @ 8:11am

Re: Gamergate Reloaded - the eternal Social Justice Wars
"SJWism"

What does that mean? Is this some sort of dog whistle?
[ link to this | view in thread ]
Anonymous Coward, 11 May 2018 @ 8:31am

Re: Re: Re: Re:
AKA publishers, studios and labels.
[ link to this | view in thread ]
That One Guy (profile), 11 May 2018 @ 11:02am

'Teacher says sharing is good, you say sharing is a crime...'
The good thing is, more kids are becoming tech-savvy and can easily see past these pathetic attempts at bullshit.

I'm not sure if it's so much that they're more tech savvy(though that certainly helps, tell a kid that sharing a song they like with a friend is technically a crime worthy of thousands of dollars and they're not likely to respect that law), so much as the ones pushing the 'education' are too used to dealing with politicians, who will accept anything so long as it comes with a 'generous donation' that when they try the same tricks against kids said kids see right through them.
[ link to this | view in thread ]
Anonymous Coward, 11 May 2018 @ 11:10am

Re: Re: Re: Re: Re: Re:
"Satire cannot just be declared"

No - it must be recognized ... by you, the reader.
[ link to this | view in thread ]
Stephen T. Stone (profile), 11 May 2018 @ 2:30pm

Re: Re: Re:
I said that copyright incentivizes the fixed expression of ideas; I never said it was the only incentive, nor that it was the primary incentive.
[ link to this | view in thread ]
Stephen T. Stone (profile), 11 May 2018 @ 2:38pm

Re: Re:
It means “I don’t like it when the politics of a given work of art pander to everyone else but me”.
[ link to this | view in thread ]
Anonymous Coward, 14 May 2018 @ 4:45am

Section 230 results in more censorship by threat of defamation since people are defenseless against Google being weaponized that way, but lawyers -- who of course have no bad apples, and who of course would never try to influence the public flow of information -- already know that.

In a DMCA notice, you can say you are authorized to act on behalf of the copyright holder, but that seems to have slipped the mind of the author here as well. Then there's that thing called a counter-notification, which eliminates ISP liability and reverses any "censorhip." Forgot that too, huh?

THi sis slanted journalism, slanted in favor of some very powerful people in their own right.
[ link to this | view in thread ]
Anonymous Coward, 14 May 2018 @ 9:18pm

Re:
_In a DMCA notice, you can say you are authorized to act on behalf of the copyright holder_

And yet no follow-up was made to substantiate this possibility. Wonder why?

_Then there's that thing called a counter-notification_

Right... just like saying there are things called defense attorneys, so why should anyone need to fear false accusations? It's not like incorrectly or falsely filed DMCA notices have any significant or noticeable punishment for deterrence.
[ link to this | view in thread ]