YouTube Sues Guy Who Tried To Extort People Through Bogus DMCA Takedowns
from the 512(f)-lives! dept
We've talked in the past about how Section (f) of the DMCA Section 512 is more or less a dead letter. 512(f) is the part that is supposed to stop bogus DMCA takedowns, by saying that you can be liable for "misrepresentations" in takedowns. In practice, though, courts never seem to award anything for bogus takedowns, meaning that it's a "free" way to censor anyone you'd like. Or worse. Earlier this year, we covered how some had taken the DMCA abuse process so far that they were using bogus YouTube DMCA takedowns as part of an extortion scheme. Literally, people would contact popular YouTubers (often those who made videos about Minecraft) and threaten to DMCA their videos if they didn't receive payment.
It appears that YouTube was actually paying attention, and it has now filed a 512(f) claim against at least one of the people doing this, a guy in Omaha, Nebraska named Christopher Brady -- who probably is not having the best week. You can read the complaint here. It's pretty straightforward:
Defendant, Christopher L. Brady (“Brady), has repeatedly attempted to harass and extort money from YouTube content creators through bogus allegations of copyright infringement. This lawsuit seeks to hold him accountable for that misconduct, and for the damage he has caused to YouTube.
In 1998, Congress enacted the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”), to provide a framework for addressing claims of online copyright infringement. In general, the DMCA immunizes online service providers from claims of copyright infringement based on materials uploaded to the services by users, if the services promptly remove allegedly infringing materials upon receipt of notices from copyright holders. Through these notices, the content of which is statutorily prescribed, copyright holders are able to secure the expeditious removal of allegedly infringing materials from online services without the need to prove a claim of infringement in court. Users that receive infringement notices they contend are incorrect may file a counter notification by providing their name, address, and telephone number, and consent to service of process by the complaining party.
Congress also recognized that these “takedown notices” could be used maliciously to secure the removal of content that was not legitimately claimed to be infringing. Accordingly, it included a provision in the DMCA authorizing those aggrieved by fraudulent notices to bring an action against the sender for damages. This is such an action.
The complaint lays out Brady's behavior in fairly great detail.
Defendant Brady targeted the YouTube accounts of Kenzo and ObbyRaidz, among others, in an extortionate scheme.
In January 2019, Defendant Brady, using several falsified identities, sent YouTube multiple notices of alleged copyright infringement pursuant to the DMCA, claiming that two videos uploaded by Kenzo and two videos uploaded by ObbyRaidz supposedly infringed copyrights that he owned.
Defendant Brady’s notices of alleged infringement included the various representations required under the DMCA. Brady identified the specific locations of the videos posted by Kenzo and ObbyRaidz. He represented that he was the original creator of those videos, that he held the copyright to them, that the videos posted by Kenzo and ObbyRaidz infringed his copyrights, and that each of his notices was accurate. And he certified: “UNDER PENALTY OF PERJURY, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.” Brady even included links to other copies of the videos in question as “proof” that he, rather than Kenzo and ObbyRaidz, had created them.
Defendant Brady’s notices of alleged infringement were fraudulent. The videos posted by Kenzo and ObbyRaidz that Brady identified in his notices did not infringe any copyright supposedly owned by Brady. Brady knew that at the time he sent the notices. Brady also knew that did not hold the copyright to the videos he identified as his own in the notices. His certifications under penalty of perjury in the notices were knowingly false.
Defendant Brady sent the notices of alleged infringement for the improper purpose of inducing YouTube to remove the identified videos and assess unwarranted copyright strikes on the Kenzo and ObbyRaidz accounts.
The complaint goes on to note -- as we had in our article earlier this year -- the blackmail messages sent to the account creators, noting that once these were publicized, YouTube investigated the claims, removed the strikes on the user accounts and restored the videos. However, it appears that Brady decided to try again -- though this time it appears that it was as part of some larger fight, in which Brady was trying to expose a YouTube user's home address, likely for swatting (the user was swatted a few days later). It's interesting to see that part of YouTube's investigation of the matter apparently involved observing others' Twitter accounts:
A review of Defendant Brady’s and Cxlvxn’s Twitter accounts from this time period suggests they were engaged in some sort of online dispute and it appears that Brady sent the notices of alleged infringement for the improper purpose of inducing Cxlvxn to submit a counter notification, thereby exposing his home address.
Cxlvxn submitted a counter notification on July 4th, 2019. On July 10th, he announced via Twitter that he had been the victim of a swatting scheme that day. “Swatting” is the act of making a bogus call to emergency services in an attempt to bring about the dispatch of a large number of armed police officers to a particular address.
Given the timing of (i) Defendant Brady’s online dispute with Cxlvxn, (ii) Brady’s false copyright claims against Cxlvxn; (iii) Brady’s receipt of Cxlvxn’s true home address via Cxlvxn’s counter-notification; and (iv) the reported swatting incident, it appears Brady used the personal information gained through his abuse of the DMCA process to engage in swatting.
Given this, it's possible that Brady may soon be in a lot deeper shit than a 512(f) civil complaint. Law enforcement often can't go after swatters since they're hard to track down. But if YouTube has done the work for them...
Either way, it's interesting to see YouTube trying to breathe some life back into 512(f). This case seems perfectly made for just such a thing. If this case can't get a 512(f) win, then no case can. YouTube is asking for Brady to cover their legal fees (which I'm sure are substantial), as well as an injunction barring Brady from submitting more bogus DMCA notices. It's interesting to note that they're not even looking to bar him from YouTube entirely -- just from submitting bogus DMCA takedowns. It's also seeking damages for the time and effort the company had to put into dealing with his bogus DMCA takedowns. (Update: I had missed this last bit initially, but have now updated the post to reflect that).
While Brady may end up in deeper hot water over the swatting claims (should prosecutors suddenly take an interest in him over this), from a purely copyright standpoint, it would be nice to see 512(f) succeed in one case before we reach the heat death of the universe.
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Filed Under: 512(f), bogus takedowns, censorship, christopher brady, copyright, dmca, extortion, swatting, takedowns
Companies: youtube
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Automatic Rejection
It will be interesting to see if this pans out. A good ruling would be nice but I'm not holding my breath - it'll either get tossed or settled.
Still won't have any effect on the millions of false DMCA claims issued by bots - which the courts have repeatedly said can't amount to perjury.
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Given how ridiculously dangerous SWATing is for the victim, I truly hope this guy gets every penalty possible here.
The rest of it is being an asshole sure, but as far as I'm concerned SWATing is attempted murder.
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Says Mike: "For what it's worth, YouTube isn't asking for monetary damages"
Says the prayer for relief: "YouTube prays . . . For an award of compensatory damages in an amount to be proven at trial arising from Defendants’ violation of 17 U.S.C. § 512(f)"
Apparently Mike doesn't know what "monetary damages" are. But at least he provided the source document! lol
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Which prosecution will win...?
I wonder if Big Media is going to be pushing for this guy to be prosecuted heavily for the SWATing alone. If he goes to prison there won't be much point in YouTube continuing their suit, since the injunction would be pointless and he won't have much income to pay any fines with. So it probably wouldn't be worth accruing more legal fees that he wouldn't be able to cover (although perhaps they could seize property if that doesn't all go to someone else)
Media companies abuse these takedown notices too, and they certainly don't want a precedent against doing that...so they might try to have prosecutors throw the book at this guy for anything else, and then probably hold it up later as proof that abusive requests do get punished in order to block future attempts at reform.
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Re: Which prosecution will win...?
Don't be so sure, as their chances of actually getting any rewards are slim, but a ruling in their favour would be helpful in them dealing with DMCA abuse.
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Re:
I'm no lawyer, but so far as I know the penalty for perjury isn't monetary, it's jail time.
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Re: Re:
They're not suing for damages under perjury laws, but under 512 (f) which states the person "shall be liable for any damages...incurred...by a service provider."
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DMCA needs real identity and "3 strikes you're banned" policies covering claimants.
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Re:
I'd lean more towards a 'if you can't use it responsibly, then you don't get to keep it' type punishment, where repeated abuse of the DMCA regarding a copyright would result in the complete revocation of that copyright, leading to content in question being immediately and irrevocably put into the public domain after a set amount of 'strikes' in a certain period of time(say six in a six month period, or something like that).
While there would have to be a different penalty for someone fraudulently presenting themselves as the copyright owner over a work the penalty would apply if an individual or company was hired by the actual owner to send notices on their behalf, such that they couldn't bypass the penalty by outsourcing the claims, and companies would have a very real reason to care about the accuracy of claims rather than only caring about quantity.
Not only would it be a delightful bit of turnabout with the whole 'six strikes' garbage that's been tossed around before, but it would put some real teeth into the DMCA and curb abuse if people knew that they stood to actually suffer a real penalty.
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Re: Re: Re:
Sorry, you are correct. At the same time the claim was made falsely under penalty of perjury, which hasn't had much traction even though fairly easy to prove. It's simple, if the entity making the claim doesn't own the copyright or have a contract authorizing them to act for the copyright holder, then it is perjury.
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YouTube IS seeking "monetary damages", not just legal fees
Mike, I think you are mistaken when you write that "YouTube isn't asking for monetary damages, but for Brady to cover their legal fees (which I'm sure are substantial), as well as an injunction barring Brady from submitting more bogus DMCA notices." The complaint states in paragraph 40 that "Brady’s abusive behavior has caused YouTube to expend substantial sums on its investigation in an effort to detect and halt that behavior, and to ensure that its users do not suffer adverse consequences from it." Furthermore, under the PRAYER FOR RELIEF in paragraph 42 of the complaint, "YouTube prays . . . [f]or an award of compensatory damages in an amount to be proven at trial arising from Defendants’ violation of 17 U.S.C. § 512(f)". Presumably the compensatory damages proven at trial would relate to the cost of YouTube's 15-identity whack-a-mole investigation as eluded to in paragraph 40. In any event, it appears from the face of the complaint that YouTube is seeking monetary damages.
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Re: Which prosecution will win...?
I was thinking about that, but as someone pointed out, Youtube going after a media company seems unlikely because big companies help pay their bills. This is a case of a individual so it's different...sadly.
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Re: YouTube IS seeking "monetary damages", not just legal fees
You're correct. I missed that. Oops. Updated.
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Re: Automatic Rejection
It wouldn't surprise me if the courts dismissed the case for youtube having no standing instead claiming that only the true copyright owner (which would be Microsoft in this case as they own Minecraft) can pursue the claim as it's was their copyright that was falsely claimed, just to make section 512(f) even more toothless.
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Strong copyright protection should carry strong penalties for abuse of that protection.
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DMCA and copyright as a whole needs to be fixed
“...the DMCA immunizes online service providers from claims of copyright infringement based on materials uploaded to the services by users, if the services promptly remove allegedly infringing materials upon receipt of notices from copyright holders.”
“Again, YouTube works hard to prevent this sort of abuse, but sometimes does not succeed.”
This encourages the “act now, check later/never” approach when something had to be done without thought. It's like a fire alarm or killswitch without any safeguards to prevent accidental activations.
I was thinking of instead of deleting material off the internet when a takedown or lawsuit occurs, instead to be backed-up in a private government place, while the takedown notices is publicly view-able. Copyright holders or any person acting on behalf are not to eradicate any material or site to be taken down.
This private place is like prison, but for copyrighted materials (including websites if the site gets shut down) instead of persons, that are taken down. Regardless if found infringing or not, WILL be preserved here, once proven legal or enters public domain, is released from the government's storage place. Maybe the Library of Congress could open this new place if this type of change of copyright were to happen.
The reason for this is because not only for obviously to add a restitution for victims of false takedowns, but also because copyright doesn't last forever, so copyright infringing materials are no longer an infringement once it expires, in the future. So it shouldn't be permanently deleted.
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"But," insisted John Smith, "The DMCA would never be abused! Anyone who says otherwise is a pirate!"
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And that says quite a bit about the nature of US law enforcement.
Could someone tell the AG about this problem?
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Interesting
AFAIK, this is the first time Google has gone to bat in court against false DMCA's. If so, it took someone getting swatted before they cared enough to fight back...
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YouTube
YouTube needs to get its act together. They are straddling the wall between publisher and platform.
Regarding False DMCA claims, I hope this suit is won by YT and the offender pays heavily. Then, creators can use this suit in their own fights versus the media conglomerates that try to take all the revenue from a thirty minute video that had ten seconds of a song playing in the background because a car drove by with a loud radio on.
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Re: Interesting
I suspect it's a mix between the issue getting enough publicity that they felt they had to do something, and having a very vested interest in not becoming known as a platform that offers easy, no-risk pickings for extortionists who are using their own '3-accusations and you're gone' system to facilitate said extortion.
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Re: YouTube
They are straddling the wall between publisher and platform.
There is no such wall. There are only "interactive computer services" (CDA 230) and "service providers" (DMCA 512) - please do not persist with perpetuating a dichotomy that does not exist in the legal framework.
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