Another Week, Another Hollywood Company Files A Takedown Against TorrentFreak
from the a-weekly-occurrence dept
The news site TorrentFreak tends to get more false DMCA copyright notices than other sites, in part because of its name. It seems that people who don't bother investigating anything jump to the wrong conclusion that because it has "Torrent" in its name, it must be a "piracy" site, rather than a news site that reports on news about copyright and filesharing. So last week, TorrentFreak got some attention after Starz not only sent a bogus DMCA takedown over a TorrentFreak news article about leaked TV shows, but then started DMCAing anyone who even tweeted that Starz was abusing the DMCA this way. Starz eventually admitted it had made a mistake and issued a pretty lame apology.
You might think that others in Hollywood would at least pay a little attention to this sort of thing -- but apparently not. This weekend TorrentFreak reported that yet another tweet of yet another of its stories was removed due to a copyright claim -- this time from Warner Bros. Just like last time, where Starz utilized an awful third party service (The Social Element) to handle these takedowns, this time Warner Bros employed a company called Marketly, one of a few such companies who claim they're in the "brand protection" business and go around issuing often dubious takedowns.
The takedown notice, sent by Warner Bros’ anti-piracy partner Marketly, accused us of posting a tweet that made “computer program(s)” available “for copying through downloading,” without permission of the copyright owner.
“We hereby give notice of these activities to you and request that you take expeditious action to remove or disable access to the material described above, and thereby prevent the illegal reproduction and distribution of this software via your company’s network,” the notice added.
Except that nothing in the tweet in question made a "computer program" available for copying. The tweet was pointing to a story from last month entitled Former Kinox.to & Movie4k.to Admin Freed, Tax Office Retrieves €1.75m:
While it is a story about former pirate streaming sites, you'd think it's the kind of story a company like Warner Bros. would like to keep up, as it talks about the operator of such a site going to prison and handing over a ton of money.
I sent Marketly a bunch of questions regarding this takedown, and the company got back to me actually defending the takedown and insisting it was appropriate. The argument was that because Twitter automatically turns URLs into links, so the headline itself was "linking" to two pirate sites:
The hyperlinks Twitter inserted in TorrentFreak’s tweet directed users to webpages that are infringing on Warner Bros. content causing Marketly to issue a notice as noted in TorrentFreak's article.
But that's questionable on multiple levels. First of all, no one is using those particular links to magically discover pirate websites. Second, they are still news articles, reporting on news about these sites, and the fact that those should be censored raises serious 1st Amendment questions. Third, even if those links do go to the sites, they are still not links directly to Warner Bros. infringing material. Instead, they are links to sites whereby people might find Warner Bros. infringing material. But that's also true of Google, YouTube, Facebook, Twitter itself and much, much more. Does Marketly take it upon itself to block links to those sites as well?
The DMCA does let you block links to specifically infringing content, but not to entire sites across the board, yet Marketly (and apparently) Warner Bros., don't much seem to care about the specifics of the law. Like so many in Hollywood, the incorrect assumption they make is that if a site has some infringing material, then there's no problem with wiping out the entire site.
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Filed Under: censorship, copyright, reporting, takedown, tweets
Companies: marketly, torrentfreak, twitter, warner bros.
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'There a penalty for abuse? No? Then why should I care?'
The DMCA does let you block links to specifically infringing content, but not to entire sites across the board, yet Marketly (and apparently) Warner Bros., don't much seem to care about the specifics of the law.
It only specifically allows the former, but with how it's treated(shoot first, ask questions if the victim survives and protests) it allows both quite well, and since there's absolutely no penalty for issuing bogus claims like they did then they have no reason to care about what the law actually says.
Technically they sent a bogus DMCA claim on laughably wrong legal grounds, but since the odds of them facing any sort of penalty for it is in the 'zero to none' range they have no reason to give a damn, or not do it again in the future. When you've got a law that is entirely one-sided, it's hardly a surprise that it would be abused regularly like that.
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Same Song, Second Verse
Wait, so according to them, I can get copyright strikes issued against Tweeters because Twitter happens to automatically hyperlink to domains that possibly contain infringing content?
If you thought your "hacked tweets" were bad before, Rudy Giuliani, you're in for a world of trouble now, mister!
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Re: credit repair
Commercial Spam
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Re: credit repair
I bet his name was Thomas Goolnick.
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Re: 'There a penalty for abuse? No? Then why should I care?'
And that is what Joe Biden was lauded by the entertainment industry for delivering when he got DMCA signed into law. His delivery on a one sided tool is why he's the perennial keynote speaker at entertainment industry events -- payout for a service well done.
The guy should never be offered a seat at the heights of power. He's a corporate lobbyist, not a representative of the public.
Whenever Joe Biden gets a hold on power the entertainment industry gets a new DMCA style tool, or foreign competitor such as Kim Dotcom gets a no knock military raid in the middle of the night on foreign soil.
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Biden? What?
The DMCA was first introduced by Republican Howard Coble, had 9 cosponsors (3D, 6R), was passed by a unanimous Senate vote, and was signed by Bill Clinton.
Biden was not one of those cosponsors; he was more busy dealing with the war in the Balkans in 1998, as minority leader of the Foreign Relations Committee.
There are plenty of reasons to question Biden's record on copyright issues, but being responsible for any part of the DMCA is not one of them.
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Re: Biden? What?
One does wonder if the republican/russian anti-Biden smear campaign has begun.
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Re: Re: 'There a penalty for abuse? No? Then why should I care?'
This is such a transparently sad derail attempt.
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Perhaps we need to stop pretending that corporations are always acting to the letter of the law.
It is shitty enough to get a bogus DMCA notice to fight, but with platforms issuing 'a mark on your permanent record' that can cut off your access based on lies told by the corps (and/or minions). Unless they put in real penalties for bogus shit like this, it will continue. Its obvious they can and will abuse the system in ways they think it should work & they need to be punished.
Imagine if someone pointed out that Google wasn't hosting any infringing links, so they are not the correct place to send a DMCA notice... how many fines until they stop?
How many fines until they stop submitting bogus notices for content they invented but doesn't actually exist?
All content is not owned by the corporations & this sloppy bullshit harming other people. They steal the public domain and don't have to worry about any downside other than some bad press, but someone who shared the video might find their entire channel wiped away for getting 1 to many strikes and the content lost. If we don't jump high enough or fast enough the law makes it clear how bad it will be for us, its time to admit the system is fscked & there needs to be penalties on both sides to improve the system.
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Re:
Isn't Google liable for contributory or vicarious infringement if they link to infringing content?
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Re: Re:
Isn't is usual to read and comprehend the article before posting? The 'links' in question were descriptive of the culprits released from prison, and those links did not lead to infringing content, they lead to a place that lead to places the might or might not have infringing content.
I just did a search for the pirate bay (I use DuckDuckGo) and it returned a url for...wait for it...ThePirateBay. Now to be clear, The Pirate Pay does not in fact host any infringing content. They host links to something called magnet links that contain the content, some of which would infringe, and some of which would not.
So no, linking to something that links to something that links to infringing content probably does not count as contributory or vicarious infringement, whatever the hell that is. As to what the law says...IANAL.
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Re: Re:
Not yet at least, though there are certainly more than a few who would love it were that the case given how much of a boogieman they treat the company as.
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Re: Why you here bro?
Hi jhon!
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ThePirateBay and similar aggregation sites that don't actually host the content are still guilty of contributory infringement, which is "intentionally inducing or encouraging direct infringement". Note the "intentionally". DDG linking to PirateBay as an automated search result is not the same as PirateBay gathering up and indexing copies of the latest HBO show to embed for you.
As far as search engines go, it's mainly related to caching copyright-infringing data, not the actual link. A 2006 case in Utah established that if you give users an opt-out and are compliant with DMCA requests, the sort of caching that allows Google to display thumbnails and descriptions and titles along with links is not copyright infringement.
A simple link like the Twitter post? Especially a link, to a page without direct infringement, where the link was automatically created out of a headline describing what the person did? In the European Union you might find yourself facing a life sentence or three, I wager (only half kidding...) but not in the U.S.
This page goes over the different situations in detail: http://www.dmlp.org/legal-guide/linking-copyrighted-materials
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Re: Re:
Ah, "tertiary contribution to infringement". That antipiracy magic bullet you wish exists in law.
Except that it doesn't. Whoops!
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Re: Re:
Are you?😁
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Re: Re: 'There a penalty for abuse? No? Then why should I care?'
"And that is what Joe Biden was lauded by the entertainment industry for delivering when he got DMCA signed into law."
As others have pointed out already the DMCA was a joint effort made by bought-and-paid-for politicians from both sides of the aisle.
It's become pretty obvious that for both the US and the EU the name and stated political leanings of the traditional parties no longer has sh*t to do with the politics they run today. Some of the suggestions made by republicans make classical communism look like libertarianism and some suggestions coming from Democrats resemble stuff even Putin and Xi Jinping would consider a bit too totalitarian.
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Re: Re: Re:
"Now to be clear, The Pirate Pay does not in fact host any infringing content. They host links to something called magnet links that contain the content, some of which would infringe, and some of which would not."
Actually false...
The pirate bay hosts magnet "links" which aren't, in fact, links. They're a hash code for a torrent. Like an ISBN number or IMDB listing it simply serves as an accurate identifier. It links nowhere in itself, nor does it contain any content what so ever.
Essentially the reason magnet links can't easily be considered contributory is that if they were you'd have a precedent case that saying or writing down the word "metamphetamine" would in itself land you as contributing to dealing crack.
Google is actually in a bigger legal pickle than the pirate bay because a google link may, if clicked, directly engage a streaming service of copyrighted material whereas a modern torrent index page using magnet links can't in any way be directly used for infringement.
I don't think any law which makes linking illegal is sane or reasonable but that's another issue which, among other things, leads to a justified contempt for certain laws.
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"Like so many in Hollywood, the incorrect assumption they make is that if a site has some infringing material, then there's no problem with wiping out the entire site."
They're just implementing the EU Copyright Directive early.
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Re: Re:
Lets burn the studios and gatekeepers too!!
If they hadn't produced the content, the chain of piracy would never have occurred.
But good on you for trying to cloud the issue.
That tugboat sailed & sank already.
The white pages has the number of someone who sells drugs, does this mean the DEA should raid their offices?
This is one of those fun things where we add 'on the internet' & claim tech can fix it... but only if someone else pays for it & they just do what we tell them.
We have courts pretending that DMCA notices are evidence that requires ISPs to pay the price for ignoring 'repeat infringers'. One does wonder if the Judge has read any of the notices the ISP didn't forward which are veiled threats seeking money for questionable claims.
The law is easily abused and exploited because it starts from the presumption that anyone sending a DMCA notice is honest & without huge punishments recipients wouldn't carry the costs of protecting copyrights. Many of these DMCA notices are 'generated' by magical black boxes that can't be audited or examined, they only point to an IP address (sadly not all circuits have been educated to the idea that an IP address alone can not identify the infringer & allowing deposing the neighbors & sifting the digital lives of everyone in the home or who visited in the last 2 years is really way over the edge.)
They release reports talking about how many kajillion of notices they sent Google to stop piracy but don't include the numbers of how many Google refused to act on as being flawed. This make idiots think piracy is massive, but the only thing that is massive is the workload created by these flawed notices.
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Re: 'There a penalty for abuse? No? Then why should I care?'
[citation needed]
Which part of the DMCA allows takedowns for referencing infringing content located elsewhere? AFAIK it only allows the infringing content to be taken down.
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Re: Re: Re: Re:
Where "directly" means "indirectly"...
Has any court ever ruled that returning a link matching a search result was contributory infringment? The Grokster ruling says they couldn't: "in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses."
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You tell em, Pirate Mike!
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Re:
Sure thing, Plagiarist John!
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Not TechDirt's Best Journalism
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Re: Not TechDirt's Best Journalism
It doesn't look like he read TorrentFreak's article or reviewed the sites.
I did both. What did I get wrong?
TorrentFreak says the links were infringing and that they didn't mean to put them in. I'm looking at the pages. They list a whole bunch of movies, so they're not Google or anything.
Indeed, but still linking to such sites, by themselves, is not infringing.
I've been following TorrentFreak for years. Great blog. Great journalists. They knew not to link the domains, but Twitter put in the links anyway.
Yup. We agree. Not sure what that has to do with anything I wrote here.
So I'm confused why you think our reporting was somehow off? We said everything you said. If anything, it looks like you didn't read OUR article.
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Re: Re: Biden? What?
Well apparently he's running for president next year, so...
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