News Company's 'Digital Audience Director' Fails To Understand Embedding, Issues Bogus DMCA Takedown Notices

from the maybe-understand-the-platforms-before-trying-to-engage-an-audience dept

Wed, Jul 8th 2020 10:53am — Tim Cushing

Here comes DMCA abuse to ruin everyone's retweeting. T. Greg Doucette -- who has been covering acts of violence by police officers in response to George Floyd protests -- was recently hit with a bogus takedown notice on behalf of Seattle's King 5 television station. Here's the start of Doucette's thread on the bogus takedown, during which he begs for the opportunity to "curbstomp" Tegna, Inc. in court for being so stupid as to consider an embedded video to be copyright infringement.

Just submitted the DMCA counter-notice, so let's talk briefly about how @TEGNA is abusing the DMCA on behalf of their Seattle news station @KING5Seattle, and how I look forward to them suing me in MDNC so I can curbstomp them

[THREAD] pic.twitter.com/9Fghc2Gw5W

— T. Greg Doucette (@greg_doucette) July 5, 2020

As Doucette explains, the targeted tweet contained a little of his commentary and an embedded retweet of the original video, which was originally posted by King 5 reporter Michael Crowe.

As you can see from the altered-by-takedown-notice tweet, there's still a link to the removed content. Typing in that URL brings up Crowe's original tweet.

Police have cleared #CHOP to Pike @KING5Seattle pic.twitter.com/0GUSkZkFA0

— Michael Crowe (@MichaelReports) July 1, 2020

That link comes from Twitter's "Tweet This Video" function, which embeds the video in the new tweet, along with a link to the source account. This is all perfectly fine under the Twitter Rules. Users of the service agree to have their content used this way by other users. Retweeting is a large part of Twitter's platform. If users want to opt out, they can make their accounts private, preventing retweets of their tweets or embeds of their videos.

It's also fine under copyright law. The content never moves. Doucette's retweet didn't perform an unauthorized duplication of the content. It linked to the original content through the embed. In essence, Crowe's tweet stayed where it was while Doucette's tweet simply allowed users to view the content through Doucette's account, rather Crowe's.

Tegna, represented by "Director of Digital Audience Development" Ian Hill, didn't just target Doucette with a bogus DMCA notice. It also targeted five other users for using Twitter's "Tweet This Video" function to embed its reporter's video.

Presumably, Tegna's Ian Hill doesn't think he's infringing on anyone's copyright when he does it:

So, what's different about Doucette's tweet? Well, the only difference is Ian Hill hit Doucette with a bogus DMCA takedown notice for doing the same thing Tegna's digital rep did here.

Misunderstanding the platform you're using and the content-sharing tools built into the system is no way to develop a digital audience, Ian. Hopefully Tenga will drop its BS complaints against these users and allow Twitter to restore the non-infringement the company brought misguided force of law against.

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Filed Under: copyright, dmca, embeds, greg doucette, takedown
Companies: king 5 seattle, tegna

20 Comments

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Anonymous Coward, 8 Jul 2020 @ 11:37am

I wonder how much Ian Hill gets paid for being a doofus?
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That Anonymous Coward (profile), 8 Jul 2020 @ 12:09pm

It was fun while it lasted...
I made up the ICP How does X work meme about the DMCA and mocked dude...

I hope he doubles down, I miss seeing stupid people getting what they deserve.
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Anonymous Coward, 8 Jul 2020 @ 1:00pm

Twitter also seems to be misunderstanding it's platform and content-sharing tools. Do they there not know what a re-Tweet is? -.-
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JoeCool (profile), 8 Jul 2020 @ 2:34pm

Re:
On Twitter's end, it's probably all automated. It would need to be to handle the number of DMCA notices they likely get every day.
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Anonymous Coward, 8 Jul 2020 @ 2:44pm

Re: Re:
If automation can't check for retweets, they're doin it rong.
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Anonymous Coward, 8 Jul 2020 @ 3:20pm

Re: Re: Re:
The law says that they have to take down on receipt of a validly formatted DMCA or they may have to defend their decision in court with the risk of a massive damages.
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Anonymous Coward, 8 Jul 2020 @ 5:01pm

It's also fine under copyright law. The content never moves. Doucette's retweet didn't perform an unauthorized duplication of the content. It linked to the original content through the embed.

Good luck with that logic. The same is true of torrent sites, search engines, etc., and they get hit with DMCA notices all the time. To my knowledge, nobody's successfully litigated based on the "only linking" argument.
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That Anonymous Coward (profile), 8 Jul 2020 @ 6:45pm

Re:
Ummm but that logic is much different than torrents.

A download creates a new copy of the information & that violates copyright.

The search engines have no requirement to deal with DMCA notices, but the cartels are willing to waste much time & effort in courts where it was just easier to give into the demands.

A DMCA notice is to be sent to the HOSTER of the information, search indexes don't host a damn thing. Google could tell them to fsck right off, but the ensuing legal battle would waste a bunch of money & Congress is stupid enough to expand the DMCA to keep getting invitations to events with the famous beautiful people.

I keep advocating for a small fine when someone does a bad DMCA notice, as most of them are sent by the lowest bidder hundreds of thousands at a time and until they threatened a lawsuit we could see the actual numbers of bad notices sent to Google, now Lumin is much less useful for showing how fscked up the system is. There was a company that was using procedurally generated web page names to just submit thousands of things that weren't actually on the site they targeted. If the rightsholder had to pay even a quarter for every flawed notice they would get much better at this.

The downside is the law gives them the right to force you off the internet on accusations alone (thanks idiot Judge) & when they screw up there isn't a damn thing we can do without a huge legal battle & you won't win enough to pay your lawyers let alone teach the idiot a lesson.
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Federico (profile), 8 Jul 2020 @ 10:29pm

Embedding is legally precarious

But in a surprise ruling on Monday, Judge Katherine Failla refused to dismiss McGucken's lawsuit at a preliminary stage. She held that there wasn't enough evidence in the record to decide whether Instagram's terms of service provided a copyright license for embedded photos.

https://arstechnica.com/tech-policy/2020/06/instagram-just-threw-users-of-its-embedding-api -under-the-bus/

In a judgment issued yesterday, US District Judge Katherine B Forrest held that "when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result."

https://ipkitten.blogspot.com/2020/02/can-you-fix-it-tension-between-right-to.html

T he ruling is also interesting in relation to the practice of certain websites (including newspapers) that directly host third-party video content in respect of which they neither own the rights nor do they have a licence, in lieu of displaying such videos by means of embedded links. While the latter might be lawful (depending on whether the requirements set in Svensson and GS Media are fulfilled), the former might pave the way to a finding of liability. This may be something that we knew already, but that now the CJEU has confirmed.

https://ipkitten.blogspot.com/2018/08/cjeu-rules-that-unauthorized-re-posting.html

But also:

iii. It is not open to the claimant to contend that there has been an infringement by communication to the public that is in breach of section 169(1)(d). The doctrine laid down by the ECJ in Case-466/12, Svensson, EU:C:2014:76, [24]-[28] and Case 160/15, GS Media BV, EU:C:2016:644, in [41][44] that where photographs have been made freely available with the consent of the right holder, the copyright owner cannot later complain that third parties have linked to or embedded those works from their own websites.

https://ipkitten.blogspot.com/2020/02/google-does-not-communicate-to-public.html

An older discussion:
https://ipkitten.blogspot.com/2013/08/does-embedding-require-permission.html

The situation is not clear at all...
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Anonymous Coward, 9 Jul 2020 @ 9:32am

Re: Re:

Ummm but that logic is much different than torrents.
A download creates a new copy of the information & that violates copyright.

I think you misunderstand torrents. This isn't a reference to downloaders and uploaders, who may be infringing copyright. In contrast, a .torrent file and the tracker(s) behind it never transmit any of "the information" that the DMCA notice would apply to. Nevertheless, people who run trackers and/or distribute .torrent files get DMCA notices. (Given that the .torrent files include hashes, operators of other sites could download those to actually block copyright infringement.)
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nasch (profile), 10 Jul 2020 @ 5:59am

Re: Re: Re:
I think that's in part due to many judges' willingness to bend copyright law well beyond what it actually says to assign liability to people doing things on the internet. If you stood on a street corner and told people where to find unauthorized copies of copyrighted works that someone else you had no association with was handing out for free, would that be copyright infringement? When it's on the internet, it is. Apparently.
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nasch (profile), 10 Jul 2020 @ 6:01am

Typo

Hopefully Tenga will drop its BS complaints

Should be Tegna.
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tp (profile), 15 Jul 2020 @ 12:45pm

Re: Embedding is legally precarious
Embedding is different from ordinary url links because web page's editorial responsibility, i.e. selection of all the content that is displayed in the page, falls into the person who constructs the web page in question. Normal anchor links has explanation text that is responsibility of the page author, but link's content switches to another page. Each page can have separate author. Embedding on the other hand, places the content directly to the page -- i.e. whoever composes the page in question is responsible of all the content that becomes available in the page. Embedded content does have two separate authors, the content owner and the person who built the displayed full page. There must be license arrangement before you're allowed to put someone elses content as part of the page in your editorial responsibility and thus embedding requires license negotiation.

Authorshio information in copyright law related to web pages is done per-page basis, not per link or per embed basis. Editorial responsibility is for full pages.
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nasch (profile), 15 Jul 2020 @ 1:15pm

Re: Re: Embedding is legally precarious

There must be license arrangement before you're allowed to put someone elses content as part of the page in your editorial responsibility and thus embedding requires license negotiation.

Citation needed.
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tp (profile), 15 Jul 2020 @ 1:33pm

Re: Re: Re: Embedding is legally precarious

Citation needed.

I googled some stuff and found the following citations:

https://firstdraftnews.org/wp-content/uploads/2016/11/1stdraft_copyright.pdf

The relevant decisions are:
1) f BestWater International GmbH v Michael Mebes and Stefan Potsch.
"Embedding a piece of content without permission is not a copyright infringement"
2) " GS Media versus Sonoma"
"Embedding content that was originally posted online
without the consent of the rights owner is also very
likely to be an infringement. "
"As a result, not only
do journalists have to check whether they can use
images directly in their reporting, they now also
have to check whether the content they intend to
embed is an infringement."
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nasch (profile), 15 Jul 2020 @ 1:54pm

Re: Re: Re: Re: Embedding is legally precarious
In short, it's a mixed picture; some courts have ruled one way and some another; and it's not nearly as simple as you initially made out.

I'll also point out that those are both European cases and this story is about US law.
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tp (profile), 15 Jul 2020 @ 2:02pm

Re: Re: Re: Re: Re: Embedding is legally precarious

it's a mixed picture;

both decisions can work simultaniously. They are not excluding each other.
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nasch (profile), 15 Jul 2020 @ 3:39pm

Re: Re: Re: Re: Re: Re: Embedding is legally precarious
"Embedding a piece of content without permission is not a copyright infringement"

"journalists have to... check whether the content they intend to
embed is an infringement."

The first excludes the second. They cannot both be true at the same time in the same jurisdiction.
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tp (profile), 15 Jul 2020 @ 8:09pm

Re: Re: Re: Re: Re: Re: Re: Embedding is legally precarious

They cannot both be true at the same time in the same jurisdiction.

What resolves this is the following statement:

"Embedding content that was originally posted online
without the consent of the rights owner is also .... an infringement. "

Basically if your content was originally not meant for online distribution, then whoever transfers it to online sphere without permission will create online content that is toxic... And journalists need to check it while embedding, even though all ordinary embedding is ok.

For example, pirated youtube video where original source comes from dvd disks is such toxic stuff that cannot be embedded.
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nasch (profile), 16 Jul 2020 @ 7:23am

Re: Re: Re: Re: Re: Re: Re: Re: Embedding is legally precarious

"Embedding content that was originally posted online
without the consent of the rights owner is also .... an infringement. "

That's also from case 2. Case 1 says it's not infringement, and case 2 says it might be. Quoting another statement from case 2 that says it might be infringement doesn't resolve anything. And it still has no bearing on US law anyway.
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