Wordpress Goes Legal: Sues Over Two Egregiously Bogus DMCA Notices That Were Designed To Censor

from the kudos dept

We've talked in the past about the unfortunate situation in which there is almost no real punishment for bogus DMCA notices. Section 512(f) of the DMCA is supposed to provide a way to get attorneys' fees, costs and damages for bogus DMCA takedowns. In practice, however, 512(f) has been almost totally neutered by the courts (not that it was ever strong to begin with). Lately, however, there have been a series of interesting 512(f) cases, in which people, including copyright expert Larry Lessig, have been dealing with clear attempts to censor protected speech.

Today, there's a very interesting new entrant, fighting two separate cases to go after the senders of totally bogus DMCA notices that were solely designed to censor. Automattic, the company that runs the super popular blog hosting platform WordPress.com, has filed two separate lawsuits against egregious cases of DMCA abuse. These are actually two cases that we've written about as examples of using the DMCA to try to censor criticism. The first involved an attempt to remove a series of articles on the excellent RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of researcher Anil Potti. As we noted at the time, this appeared to be an egregious use of the DMCA to censor content that someone didn't like. The second is the more recent example of the group Straight Pride UK giving an interview to student journalist Oliver Hotham, then deciding that they didn't like the fact that they sounded like idiots in the interview, and tried to use the DMCA to take down the article which included the quotes they had willingly given to Hotham.

Automattic has teamed up with Ivan and Adam in one case, and Oliver in the other, to seek damages under 512(f). While the initial cases themselves are interesting, it's doubly interesting to see Automattic itself get involved. Traditionally, the focus for 512(f) claims had been directly on the site owners, not the service providers. But Automattic's General Counsel Paul Siemniski explains that the company feels that it needs to step up and protect freedom of expression and fight back against DMCA abuse:

Until there are some teeth to the copyright laws, it’s up to us - websites and users, together - to stand up to DMCA fraud and protect freedom of expression. Through these suits, we’d like to remind our users that we’re doing all we can to combat DMCA abuse on WordPress.com….and most importantly, remind copyright abusers to think twice before submitting fraudulent takedown notices. We’ll be watching, and are ready to fight back.

We’ll also be actively involved, on behalf of our users, in trying to change the law - both through court cases and in Congress - to make sure that everyone has the right to share their voice on the Internet without threat of censorship.

Kudos to Automattic for this move. It's a step beyond what pretty much every other service provider who receives bogus DMCA notices has done. Automattic notes that a large part of the problem is that these situations aren't anomalies. They happen all the time -- and are frequently for improper reasons, such as for censorship and attempting to unmask anonymous bloggers.

We receive hundreds of DMCA notices and try our best to review, identify and push back on those we see as abusive. Our users have the right to challenge a DMCA complaint too, but doing so requires them to identify themselves and fill out a legally required form saying that they submit to being sued for copyright infringement in a place that may be far away. If they don’t, their content is taken down and could stay down forever. This tradeoff doesn’t work for the many anonymous bloggers that we host on WordPress.com, who speak out on sensitive issues like corporate or government corruption.

Given the history of 512(f) cases for "knowingly materially misrepresenting" a case of copyright infringement, these cases may be an unfortunately uphill battle. But, they could serve a few very important purposes. First, it will hopefully make people think twice about sending a bogus DMCA notice over a Wordpress.com site, knowing that they may face a lawsuit. Second, at the very least, getting more cases on the books showing how toothless the law currently is to fight DMCA abuse hopefully will lead to the law being fixed, such that abusing the DMCA to stifle speech will have real penalties under the law.

Filed Under: 512f, abuse, censorship, copyfraud, copyright, dmca, retraction watch, wordpress
Companies: automattic

WordPress Accused Of Copyright Infringement For Its Famed 'Hello Dolly' Sample Plugin

from the wtf dept

If you've ever installed or used the ultra-popular blogging platform software WordPress, you're quite familiar with the Hello Dolly plugin that is part of the default install. If it's enabled, then you get a short lyric from the song in the corner of the admin-only dashboard. It was basically just a fun simple plugin, mostly used to demonstrate the plugin functionality of WordPress. However, as Craig points out, some folks in the WordPress community are pointing out that, technically the plugin may be violating the composer's copyright. It does not appear that the composer, Jerry Herman, cares or has complained about this, but some in the WordPress community worry that every install of this WordPress plugin may technically be infringing -- and they've filed a bug asking WordPress parent corporation Automattic to indemnify users of the plugin and/or explain if the song has been licensed..

The whole thing, of course, is pretty ridiculous, but seeing as we have seen a growing number of copyright complaints over lyrics sites, you could see a potential lawsuit. Of course, it's hard to see how the use of such lyrics in the plugin -- in any way -- cause any harm to the song or the composer. In fact, chances are it has done the exact opposite. But such is the state of copyright laws today that doing something as simple and as fun as creating the Hello Dolly plugin may have made copyright infringers out of millions of bloggers. Of course, there's a pretty strong argument for fair use in this case, but tragically, due to copyright law customs, you can't know if it's really fair use until after there's an actual lawsuit. Hopefully, this is all moot and no one actually sues. But it's a rather sad statement that a plugin famous for this description:

This is not just a plugin, it symbolizes the hope and enthusiasm of an entire generation summed up in two words sung most famously by Louis Armstrong: Hello, Dolly.

might have to be killed of due to copyright fears. Thanks, copyright, for killing off a symbol of hope and enthusiasm of an entire generation.

Filed Under: copyright, hello dolly, jerry herman, lyrics, plugins, wordpress
Companies: automattic, wordpress

Lawsuit Averted As WordPress and Thesis Settle Differences Over Themes And The GPL

from the family-feud dept

Free (libre) and open source software is one of the best examples of an alternative to restrictive copyright, but even within these communities there can be heated debates about licensing. The WordPress community just witnessed such a debate between the founder of WordPress, Matt Mullenweg, and the developer of a popular premium WordPress theme, Chris Pearson, over whether or not themes are subject to the GPL (WordPress' license). The GPL applies to derivative works of a program—requiring that they, too, must be licensed freely—but Pearson maintained quite publicly that he wasn't subject to it and could use a proprietary license for his theme. This caused tension between him and Mullenweg, until last week, when Pearson gave in and switched to a split GPL license.

Without getting too bogged down in the legal details and community politics, the dispute is of interest for a couple reasons. Although some open source developers believe the GPL is too restrictive, copyright enforcement is approached in a very different way by free software projects than proprietary software companies or the entertainment industry. Mullenweg had sought a legal opinion from the Software Freedom Law Center over a year ago, and they agreed that the PHP part of a WordPress theme (which interfaces directly with WordPress code) is subject to the GPL, while JavaScript and CSS are not. Pearson disagreed, relying on some pretty novel legal arguments, but those were countered by others in the community. Mullenweg began to put more social and business pressure on Pearson, offering to pay for people to move away from Thesis to premium WordPress themes fully available under the GPL, and speaking publicly about how he felt Thesis was hurting the community by violating the license. Things became pretty heated, and the two squared off in a joint interview, failing to reach any visible consensus. It seemed like a lawsuit from Mullenweg would be the only way to resolve things—something he'd been trying to avoid at all costs—but a week later, the legal conflict was averted as Pearson switched to a split GPL license (i.e. PHP is GPL, as required; proprietary license for the rest). It was messy, but very different from the sue-first-ask-questions-later approach of so many copyright holders, and a lot less messy than a lawsuit could have been. The business and social pressure caused some tension in the short-term, for sure, but ultimately led to a resolution without nearly as much pain or division as a lawsuit within the community might have caused.

This kind of disagreement also highlights the fact that free software licenses (like the GPL) and the free culture licenses they've inspired (like some of those offered by Creative Commons) are ultimately hacks on a restrictive copyright system; they're merely tactics to reverse the negative effects of overly restrictive copyright, but not at all the ideal scenario. For example, we've seen concerns over how Creative Commons licenses act as a contractual layer on top of copyright, and non-commercial restrictions can also be a source of tension. Sometimes these disputes help a community to better develop its position on copyright and licensing, but other times, they're a sign that these licenses are still just a hack on a less than ideal system.

It'll be interesting to see how Thesis fares in the long-run with a split licensing approach compared to other premium themes that are 100% GPL. Regardless, it's nice to have a more or less happy ending where the community was able to resolve things without getting the courts involved.

Filed Under: copyright, gpl, themes, thesis, wordpress
Companies: automattic

Brazil Bans Bully And A Bunch Of Blogs

from the can't-stop-banning dept

Brazil seems to be really into banning things online these days. You may recall the totally pointless ban on YouTube to hide a single video (which a lot more people saw after the ban was put in place). Eventually the courts reversed the ban and even required the model whose video resulted in the ban to pay Google as compensation for the unnecessary ban. Even with that experience, however, it looks like the Brazilian courts are prone to overreacting and broadly banning anything it doesn't like.

First up is the news that a Brazilian court has banned the sale of the video game Bully. This would be the same video game that Jack Thompson went to court to have banned even though he had never played it -- and even though anti-bullying activists praised the game, noting that it really was no different than movies like Rushmore or Napoleon Dynamite. The judge's explanation for the ban is a bit weak: "The aggravating factor is that everything in the game takes place inside a school." I really don't see how that matters. The game is about a kid learning to deal with different cliques and factions in a school. That seems rather realistic. Does the judge think that real life cliques in schools will suddenly disappear if this game is unavailable? Perhaps Stephen King can head to Brazil and convince them why this is wrong.

On top of that, news is coming out that a Brazilian court has also banned access to Wordpress.com, one of the most popular blog hosting sites around. It looks quite similar to the YouTube situation, where the judge really just wanted a single blog banned, but without an easy way to do that, ISPs are blocking the entire site and every blog carried on Wordpress. This is, just as with the other bans, a total overreaction. Not only will it call more attention to the "problem" blog, it will piss off and inconvenience a ton of totally innocent people as well.

Filed Under: bans, blogs, brazil, bully, wordpress
Companies: take two interactive, wordpress