Unfortunate: Kickstarter's Overaggressive Reaction To DMCA Notices

from the could-be-handled-much-better dept

Tim K alerts us to an interesting story at Wired concerning how Kickstarter handles DMCA takedown notices. The answer: not well. It seems to take DMCA notices at face value... and then immediately make the project disappear. It does not put up a notice that the project was taken down due to a DMCA notice. It does not alert backers of the project. It does not make it easy for the project owner to alert the backers of the project, or to accelerate the counternotice process. This is unfortunate.

While the story mentions that Kickstarter has disappeared at least 5 projects due to DMCA takedowns, the one it focuses on is a very recent one -- a project by a new design company called Vinted Bags, makers of interesting vintage-style leather goods (the same business my grandfather was in -- though, when he did it, the products weren't "vintage"). Vinted had put up a Kickstarter project that blew past its target, and seemed to get plenty of attention. And then, just hours before it was funded, it disappeared, replaced with a page that says: "Sorry, this project is no longer available."

This is the same Kickstarter who also claims:

Projects are not closed or taken down, they remain on site for reference and transparency.

For the same reasons, projects cannot be deleted, even if they were canceled or unsuccessful.

Except, apparently, if someone files a hugely questionable DMCA takedown... The Vinted team provides some troubling background info on its own site. First, it notes that two Vinted designers did an unpaid internship with a bag company, where they worked and learned for a few months, considering the founder of that company to be a mentor. Months later, after that internship had ended, they founded Vinted. They worked on that for a while, and it was only once the Kickstarter project took off and got attention that suddenly the legal threat showed up:

Then we received a letter from a law firm; a cease and desist letter from the mentor with threats to sue. We were very surprised. It consisted accusations of infringement from the mentor. He laid claims to a number of our designs such as our website utilizing a top navigation bar, our photo of the designer operating a sewing machine, etc.

Note that there are no accusations concerning the products themselves. While Vinted doesn't name the guy, the Wired article names Spencer Nikosey, who runs Killspencer. Looking over their products, there doesn't seem to be any copying there. While there are a few similar bags, they are pretty standard and Vinted's are distinguished by their use of leather patches. In terms of website design, there are some similarities, but nothing that should come close to meeting the qualifications to be copyrighted (remember, copyright covers the actual expression, not the idea). Ditto a photo of the designer operating a sewing machine, which is obviously not infringing. Even if the ideas are similar, that's not infringement.

And yet... Kickstarter took the project down. Again, I'm having trouble understanding why it would do so. You might be able to make an argument that if Spencer Nikosey had claimed that the products themselves were infringing, Kickstarter should take it down -- but even then, there should be a clear notification from Kickstarter to its users about what happened, as well as a notice on the site (a la YouTube) highlighting why the project no longer existed.

But, in this case, even that doesn't apply, because there is no infringement in the product. Instead, the concerns appear to be about web design and how the company is presenting itself. But Kickstarter doesn't host Vinted's website. And if there was concern about certain images, at most, Kickstarter should just remove the image in question, rather than the entire project. The whole thing seems quite crazy and a case where Kickstarter both could have and should have stood up for itself, for Vinted and for its users, and told Nikosey "too bad." Instead it pulled the project.

Vinted has filed a counternotice, and Kickstarter passed it on to Nikosey. If Kickstarter is following the DMCA counternotice process, it should put Vinted's project back online on September 27th -- unless Nikosey goes to court and files a lawsuit against Vinted, seeking an injunction barring the return of the campaign. Of course, Kickstarter could also realize that the original takedown appeared questionable and put the campaign back. What's not clear, however, is how that would work. There were just a few hours left in the campaign before the plug was pulled. Would they put it back with a few more hours? A few extra days? Or would they just charge those who bid? Hopefully they can put it back, and didn't just delete the whole thing.

Looking over the details, it's difficult to see this as anything other than yet another in a long line of unfortunate examples of companies or individuals using the DMCA to stifle competition, rather than for any sort of legitimate purpose. That Kickstarter is complicit in this process is unfortunate, because it need not be. There are better ways to handle such situations and it's a shame Kickstarter has chosen not to do so.

Filed Under: bags, counternotic, crowdfunding, dmca, takedowns
Companies: kickstarter, killspencer, vinted bags