Chilling Effects On Chilling Effects As DMCA Archive Deletes Self From Google

from the transparency-never dept

Over the weekend, TorrentFreak noted that the website Chilling Effects had apparently removed itself from Google's search index after too many people complained.

This week, however, we were no longer able to do so. The Chilling Effects team decided to remove its entire domain from all search engines, including its homepage and other informational and educational resources.

TorrentFreak asked the site about it and was told it was done in search of "better balance."

“After much internal discussion the Chilling Effects project recently made the decision to remove the site’s notice pages from search engines,” Berkman Center project coordinator Adam Holland informs TF.

“Our recent relaunch of the site has brought it a lot more attention, and as a result, we’re currently thinking through ways to better balance making this information available for valuable study, research, and journalism, while still addressing the concerns of people whose information appears in the database.”

[....]

“As a project, we’ve always worked to strike that balance, for example by removing personally identifying information. Removing notice pages from search engine results is the latest step in that balancing process,” Holland tells us.

“It may or may not prove to be permanent, but for now it’s the step that makes the most sense as we continue to think things through,” he adds.

Meanwhile, Chilling Effects founder, Wendy Seltzer, seems to insist that this was an implementation mistake and that the team never meant to remove the whole domain: So it's a little unclear what happened here. You'd think the folks at the Berkman Center and associated with Chilling Effects know how to properly set up a robots.txt file if they want to just exclude certain pages.

Either way it seems like a massive blow for transparency, and in many ways is a "chilling effect" of its own. It's no secret that many legacy copyright system supporters absolutely hate Chilling Effects and the transparency it brings. Sandra Aistars, of the Copyright Alliance, referred to the site as "repugnant" in Congressional testimony just a few months ago. Yes, providing transparency on censorship is "repugnant." Says a lot about the Copyright Alliance, doesn't it?

Others have made similar statements in the past. A few years ago, a lawyer tried to block Google from forwarding DMCA takedown notices to Chilling Effects, arguing that passing along those notices makes Google "potentially liable for the infringement" in passing on the notices. Others have argued that the takedown notices themselves are subject to copyright and have tried to block them from appearing on Chilling Effects.

The concern, they claim, is twofold: First, the details in the takedown notice often demonstrate where infringing content actually is. That's especially true for notices to Google or Twitter (two of the bigger suppliers of notices to Chilling Effects) who are not hosting the content, but are merely linking to it (i.e. they are "information location tools.") In those cases, the links may get removed from the services in question, but remain on the internet itself. The second concern, as put forth by Aistars, is that people issuing DMCA takedown notices are sensitive little flowers, and publishing the fact that they're trying to take down content opens them up to harassment and abuse.

Neither of these arguments survives much scrutiny. The idea that anyone is trawling through Chilling Effects seeking unauthorized content is fairly unlikely. And, really, if people are, those aren't exactly the kind of people who are then going to turn around and start willfully forking over cash to the legacy entertainment industry for that same content. The Chilling Effects haters, no doubt, would argue that this is why it's important to remove Chilling Effects itself from Google, because people searching on Google might not find the originals, but would then find the takedown notices with links back to the originals. Except, that seems unlikely. First, as has been detailed many times, people looking for unauthorized copies of works tend not to use Google that much, since it's not very good for that purpose, and other tools tend to be much more effective. Second, the kinds of information in a takedown notice itself aren't likely to trigger a high result for someone looking for an unauthorized download. Terms like "free" and "download" are unlikely to be found on such documents.

The other argument -- that being exposed for sending takedowns leads to harassment -- also seems bogus. We've seen little indication that people get that upset about legitimate takedowns. It's the excessive, abusive and censorious takedowns that really seem to concern people. And those are the ones that need transparency the most.

Hopefully, the folks at Chilling Effects rethink this decision and stick by their own stated philosophy of working "to provide as much transparency as possible" about DMCA takedown notices. It would seem that blocking a key search tool from accessing the data goes directly against that principle.

Filed Under: chilling effects, copyright, copyright infringement, dmca, indexing, robots.txt, search, takedowns
Companies: chilling effects, google

Prominent YouTube Personality Locked Out Of His Account After A Bogus Copyright Claim

from the so-much-power-in-one-little-symbol dept

Another bogus takedown targeting a prominent YouTube personality. In other words, business as usual for the world's largest video platform. This time it's Jacksepticeye, a very popular creator of videogame-related videos, most of which utilize in-game footage, "Let's Play"-style, as well as plenty of related (and unrelated) commentary. At the risk of sounding like The Narrator in "Fight Club," I know Jacksepticeye because my boys know Jacksepticeye. [There is no generation gap because of cultural osmosis. Discuss.]

Jacksepticeye had put together a video featuring two bots carrying on a conversation. One was Cleverbot Evie. The other was Talking Angela, the female spinoff of the ultra-popular Talking Tom app. Fun stuff, probably, but we can't see it (at the moment) because of some unpleasant takedown shenanigans.

One of YouTube's most known gamer guys, Jacksepticeye, took to his Twitter account on Wednesday morning citing copyright claims against him. The claims were made by Outfit7 Limited, the entertainment company that created the Talking Tom and Friends franchise.

Here are the tweets:

Apparently one of my Evie and Talking Angela vids copyright infringed on something and if I don't acknowledge it my account will be deleted

— jacksepticeye (@Jack_Septic_Eye) January 7, 2015

This wasn't some normal copyright strike either, I can't get into my youtube account now unless I answer copyright questions

— jacksepticeye (@Jack_Septic_Eye) January 7, 2015

So @Outfit7 are the ones who flagged the video. The owners of Talking Angela because I had her talking to Evie :/

— jacksepticeye (@Jack_Septic_Eye) January 7, 2015

If you can't read/see the tweets, they say (in order):

Apparently one of my Evie and Talking Angela vids copyright infringed on something and if I don't acknowledge it my account will be deleted

This wasn't some normal copyright strike either, I can't get into my youtube account now unless I answer copyright questions

So @Outfit7 are the ones who flagged the video. The owners of Talking Angela because I had her talking to Evie :/

Now, the question of fair use will be addressed here because the limitations of YouTube's system won't. Firing up an app to talk to a bot isn't copyright infringement. The app will talk to whoever will chat with it (and vice versa, in terms of CleverBot). Recording this interaction doesn't violate Outfit7's copyright anymore than someone recording their siblings/kids talking to it. The app exists to talk and presumably Outfit7 would like more people to download the Talking Angela app because in-app purchases is a numbers game. The more people that try it out, the more likely the chance that some of them will start tossing money into the company's revenue stream.

So, why take it down? Who knows? But considering the outcome of this situation, it appears it may have been a mistake -- albeit the sort of mistake that is both a) far too common and b) engenders ill will towards the entity who screwed up.

This is Jacksepticeye's latest tweet on the takedown.

The copyright strike against me has been retracted and everything is back to normal :D

— jacksepticeye (@Jack_Septic_Eye) January 9, 2015

If you can't see/read it:

The copyright strike against me has been retracted and everything is back to normal :D

Now, this doesn't necessarily mean Outfit7 came to its senses and walked back its erroneous takedown. It could be that YouTube pulled the strike because it wasn't actually an infringing video. But the former is much more likely than the latter, although there's been no public confirmation from Outfit7 itself.

The video itself still remains dead, at least at its original URL. Perhaps Jack will have to re-upload or he has decided to keep the video offline until he hears more from Outfit7… just in case. Either way, copyright gets in the way of creation again, and someone who makes a living on YouTube came this much closer to losing his source of income -- not the sort of thing that exactly endears IP rights to the general public.

Filed Under: censorship, cleverbot, copyright, jacksepticeye, takedowns, talking angela, youtube
Companies: google, outfit7, youtube

No Surprise: Rightscorp Already Abusing Canada's Notice & Notice System To Send Bogus Shakedown Letters

from the why-not dept

While Canada's new notice and notice copyright notification system has some problems, it's significantly better than almost every other attempt to do something similar. Of course, that doesn't mean it won't be abused, and apparently the first company to rush bumbling through the "abuse" door would be none other than Rightscorp, the copyright trolling operation that is no stranger to questionable practices and legal interpretations.

Michael Geist has the details of a totally bogus "notice" that Rightscorp has been sending to Canadian users via the new system. Geist does a nice job highlighting all the "mistakes" with Rightscorp's letter:

The notice falsely warns that the recipient could be liable for up to $150,000 per infringement when the reality is that Canadian law caps liability for non-commercial infringement at $5,000 for all infringements. The notice also warns that the user’s Internet service could be suspended, yet there is no such provision under Canadian law. Moreover, given the existence of the private copying system (which features levies on blank media such as CDs), personal music downloads may qualify as private copying and therefore be legal in Canada.

In addition to misstating Canadian law, the notice is instructive for what it does not say. While a recipient might fear a lawsuit with huge liability, there is very little likelihood of a lawsuit given that Rightscorp and BMG do not have the personal information of the subscriber. To obtain that information, they would need a court order, which can be a very expensive proposition. Moreover, this is merely an allegation that would need to be proven in court (assuming the rights holder is able to obtain a court order for the subscriber information).

From the actual letter itself, it's pretty clear that Rightscorp is just sending an identical version of the letter it sends in the US to ISPs hoping they'll pass it on to the customer (most don't). It even cites US copyright law, rather than Canadian code. And that $150,000 number is the US statutory maximum (and even that's misleading, but that's another post for another time).

Of course, Rightscorp doesn't care. It's not interested in going to court. Its entire business model is based on volume: specifically scaring enough people to "pay up" to avoid a lawsuit that wouldn't be coming in the first place. So what does it care? Under Canadian law, ISPs will pass along the notification, and Rightscorp can cite laws from the US, Canada or Sudan for all it cares about the actual law. All it wants is to frighten people into paying, even if its legal arguments are completely nonsensical.

Filed Under: canada, copyright trolling, notice and notice, takedowns
Companies: bmg, rightscorp

When The Entertainment Industry Takes Down Linking Sites, It Makes It Harder To Take Down Actual Infringing Content

from the is-it-worth-it? dept

We've never really understood the desire to go after middlemen, rather than those actually responsible for things -- but for some reason, many, many people tend to focus on them. We talk about the importance of Section 230 or the DMCA's 512 safe harbors in protecting middlemen from liability over actions of their users. Or we talk about how law enforcement freaks out about illegal activity advertised on Craigslist and Backpage, rather than using those tools to actually track down the law breakers.

And yet... it continues. TorrentFreak has been covering how the latest copyright laws in Spain (which have been updated repeatedly over the past few years at the demands of Hollywood) mean that linking sites -- which, in the past, had been declared perfectly legal -- may now face tremendous liability. As a result of this, a few of those sites have decided to shut down. That's not surprising, and I'm sure that the legacy copyright players are excited about this result, high-fiving each other around the office, saying "job well done." Except, of course, it's not. In another post, where TorrentFreak spoke to the folks behind Wiziwig, a sports linking site that has shut down, there's an aside where it becomes clear that because Wiziwig has shut down, actual streams of sporting events may be more available than in the past:

“What we noticed Thursday [the day the site went down], and that’s what we’ve always been thinking, is that the Premier League has only been focusing on Wiziwig lately to take down streams, like those from [P2P streaming service] Sopcast for example,” Wiziwig told us.

“If we added a Sopcast link for a game in the Premier League, then quickly that link was made inaccessible. On Thursday all Sopcast channels kept working all day, without any been taking down during the early kickoff, 3pm game and late game. Coincidence?”

The idea that the soccer league had been using Wiziwig to find streams and have them taken down at source was confirmed when matches streamed from other sources also remained up.

“Same applied with Veetle links, as when those previously appeared on Wiziwig they were quickly taken down. If we didn’t add them they were working all game long, while people could find them easily in Veetle. That also applied to several other links.”

Now, I'm sure some copyright system defenders will argue that this is an okay tradeoff -- that in taking down the middleman linking site, they also made it harder for people to find those other streams that remain up. But... that's unlikely to be that true. The folks who really want to watch these kinds of things are generally members of communities of folks who are equally interested, and the links to new sources can get passed around quite quickly. So the people who are watching the infringing content still get to do so.

All that's really happened is that the copyright holders who are rushing around trying to take down everything now have made their own job more difficult by going after a tool that helps them find the actual infringement. That's why it's really dumb to focus on the middlemen rather than the actual end users who are streaming the infringing content.

Filed Under: copyright, infringement, linking sites, spain, sports streaming, streaming, takedowns
Companies: wiziwig

EasyDNS Sued For Refusing To Take Down Website Without Court Order; Then Hit Again For Writing About The Lawsuit

from the this-is-not-a-good-idea dept

Oh boy. Back in August of last year, EasyDNS announced that it was being sued in an Ontario small claims court for refusing to take down a website. The lawsuit was filed by a guy named Andy Lehrer, who was upset about another website that makes fun of Andy Lehrer (and may, possibly, include defamatory statements). Whether or not that site is defamatory is between Lehrer and whoever made the site (and, potentially, a court of law). Lehrer demanded EasyDNS take the site down, but the company (rightfully) pointed out that it would need a court order before doing so. But, instead, Lehrer went after EasyDNS in a lawsuit, naming it as a "co-defendent" and demanding $25,000 and injunctive relief (i.e., that the site be taken down).

In November, EasyDNS wrote about the case again, pointing out that it was seeking to get out of the case, because it shouldn't be considered liable for what a user did on his own site just because EasyDNS hosts it. Also, small claims court doesn't provide injunctive relief as a remedy anyway. In response, it appears that Lehrer has decided to amend his complaint against EasyDNS, specifically arguing that the company further damaged him by writing about the case. Seriously. From the lawsuit:

54) Further, the Defendant EasyDNS has, on August 22, 2014, November 13, 2014 and December 10, 2014, posted publicly about this lawsuit on http:/blog.easydns.org and directed people to the Defendant Rourke's content despite knowing that the Plaintiff views this content as defamatory. According to a chart posted on the Defendant EasyDNS's November 13, 2014 posting, the earlier blog entry of August 22 resulted in substantial increase in the number of individuals viewing the causepimps.ca website. The postings by EasyDNS constitute egregious and non-content neutral behaviour which is contrary to the EasyDNS's claim of "innocent dissemination" and deserves the censure of this court.

55) In addition, in reaction to the within proceeding, the Defendants easyDNS and Rourke have both published the statement of claim on their respective websites. In addition, Defendant EasyDNS has published the statement of claim on the online publishing platform Scribd. The Defendants have thus furthered the libels after being put on notice of the defamation. Their conduct is egregious, is deserving of the censure of this court including the imposition of punitive damages.

56) The Plaintiff pleads that the Defendants deliberately, intentionally or recklessly harmed and damaged the Plaintiff by publishing and distributing the defamatory words and that they acted with actual malice by either publishing and distributing the defamatory statements with the knowledge that the information was false or with reckless disregard of whether it was false or not.

Got that? Merely writing about the case apparently is a cause of new action, as is, apparently, posting the public document filed in the lawsuit. But that's absurd. Lehrer's entire lawsuit is premised on the idea that the content is obviously defamatory, but as EasyDNS pointed out to him, that's a matter for the courts to decide, not a hosting provider.

In the US, thankfully, things like Section 230 of the CDA would immunize against any kind of legal attack like this -- but Canada doesn't have an easy out like that, which means it's likely that EasyDNS will have to go to court and defend itself using basic common sense on liability, noting that it's just the host and not responsible for the content, and that it would be absolutely insane to hold it liable for the content. Finally, as of this amended complaint, it will have to explain why talking about a lawsuit and filing the public documents related to that lawsuit is not some sort of egregious behavior that deserves "the imposition of punitive damages."

Once again, we're left amazed at how some people assume that anything they don't like online must be illegal, and everyone else must be responsible for it.

Filed Under: andy lehrer, canada, court order, defamation, hosting, lawsuits, secondary liability, takedowns
Companies: easydns

For 10 Years Everyone's Been Using 'The Streisand Effect' Without Paying; Now I'm Going To Start Issuing Takedowns

from the watch-it-get-even-bigger dept

I have to admit that I had no idea that it had been 10 years since I coined the term "The Streisand Effect" until the SkepticHistory Twitter feed called my attention to it earlier this week. I had thought about saving this for the weekend "this week in history" post, but it seems worth delving into today -- especially with folks like the thieves at Gawker Media putting up a whole story about it and stealing all the attention and whatnot.

So, yeah, ten years ago this week, I coined "the Streisand Effect," which was actually on a story about how the Marco Beach Ocean Resort was all offended by the fact that Urinal.net (a site that, yes, still exists and is still being updated) had posted a photo of a urinal from the resort, and the resort insisted that it was illegal to use its name. As we pointed out, this stupid takedown request would only draw more attention, and then we wrote:

How long is it going to take before lawyers realize that the simple act of trying to repress something they don't like online is likely to make it so that something that most people would never, ever see (like a photo of a urinal in some random beach resort) is now seen by many more people? Let's call it the Streisand Effect.

That last link then went back to a 2003 story about how Barbra Streisand had sued photographer Kenneth Adelman for photographing her house from a helicopter. Adelman had been photographing the entire California coastline, hoping to use it to document coastal erosion, and posted all the photographs online. Streisand got upset that her coastal home was shown, and sued. But, of course, before this, no one knew (or cared) that it was Streisand's home. The image had been viewed six times (including twice by Streisand's lawyers), but following the news of the lawsuit, hundreds of thousands of people went to see the photo. It was a story that stuck with me, and seemed to be repeated every few months in some form or another. So when I saw that Urinal.net threat, I just jokingly said we should call such things "The Streisand Effect."

I didn't think much about it until I saw it mentioned in a few other places a year or two later, including showing up in articles n Forbes and eventually leading to an interview on All Things Considered on NPR.

But, anyway, it's been ten years of this and you've all had your fun, getting to use my personal creation, my sweat and tears and labor, and all of it for free. So I'm going to start issuing cease & desist letters to anyone who uses The Streisand Effect and doesn't pay my royalties. We've set up a simple site where you can go and see the royalty rates, as well as make an easy payment. We even will offer amnesty for past usage if you pay a one time fee. We've also hired some of the best Spanish lawyers to explore ways to demand payments from additional sites as well.

Obviously, this is necessary or else how would I have had the incentive to create the term in the first place? All these people benefiting off of my hard work, my labor, the sweat of my brow are freeloading off of my property. And it has to stop now. "The Streisand Effect" is a valuable concept and I'm sick of all the freeloaders. It will stop and we should start to see it disappearing from unpaid use soon, thanks to my auto-C&D sender system.*

* Because this is the internet and because there are still some satire-impaired people out there, yes, this is a joke (and yes, that includes the bit up top about Gawker being thieves). I mean, other than the fact that issuing a bunch of cease & desist letters should, in theory, lead to a purposeful "Streisand Effect" purposely generating more attention for the term, which would be pretty neat. On a more serious level, it really was an off-hand joke made a decade ago, and I'm still amazed that it caught on and became such a big deal. I'm happy that it's a useful shorthand and hope that it actually served its key purpose in succinctly getting the point across about the stupidity of trying to take down content....

Filed Under: barbra streisand, copyright, incentives, intellectual property, kenneth adelman, royalties, streisand effect, takedowns, the streisand effect

Another Day, Another Bogus Set Of DMCA Takedowns Based Solely On Keywords (This Time Hiding Legit GitHub Projects)

from the collateral-damage dept

For many years we've seen DMCA takedowns that were clearly based on little more than quick keyword searches. There are so many of these cases that it's difficult to keep track of them, but a few examples: Fox demanded a takedown of an article on the SF Chronicle's website... because Fox owns the rights to the movie Chronicle. Some companies, like LeakID seemed to specialize in sketchy takedowns based on just keywords and not actually looking at the content. A story getting attention on Headline News (with followup from TorrentFreak) details just the latest example.

The company Takedown Piracy (very subtle there!), working for porn company Wicked Pictures, sent a DMCA notice to Google to delist thousands of links that Takedown Piracy/Wicked Pictures insists are infringing. Yet, many are not. In fact, they've clearly been caught up in some poorly designed automated keyword search. And the unfortunate part is that it resulted in the delisting of a bunch of perfectly legitimate GitHub projects that have nothing to do with the copyrighted content in question.

Two URLs targeted – github.com/yahoo/pure and github.com/yahoo/pure/releases/ belong to the Pure.css project. Described as “a set of small, responsive CSS modules that you can use in every web project”, Pure.css is owned by Yahoo.

Apparent reason for takedown: Wicked has a movie titled Impure Hunger

Other mistakes? Taking down two GitHub projects named "Rebound" because there's a movie called Rebound. Or taking down Netflix's open source project Lipstick. Or openSUSE's network configuration tool wicked, because obviously that must be infringing on Wicked Pictures' copyrights, right? And, surely, Wicked Pictures is the only one to use the word "Pushover" so all GitHub projects must be infringing:

Wicked Pictures’ 1999 movie Pushover has a lot to answer for too.

Takedown Piracy hit Google with demands to delist the main URLs for no less than ten Github projects simply because they had the word ‘pushover’ in their titles.

https://github.com/Thibauth/python-pushover

https://github.com/tcnksm/vagrant-pushover

https://github.com/substack/pushover

https://github.com/sps/pushover4j

https://github.com/qbit/node-pushover

https://github.com/laprice/pushover

https://github.com/kryap/php-pushover

https://github.com/danesparza/Pushover.NET

https://github.com/jnwatts/pushover.sh

https://github.com/dyaa/Laravel-pushover

https://github.com/erniebrodeur/pushover

In the past, the EFF has argued that these sorts of automated takedowns based on little more than a keyword search clearly violated 512(f) of the DMCA, because they misrepresent things in the takedown. Unfortunately, courts haven't been all that interested in that argument, and copyright holders keep getting away with just saying "oops, my bad" and moving on to issue another set of bad takedowns.

Still, looking at the actual DMCA notice, it doesn't even seem legitimate. It doesn't actually name the works in question. It just says:

The materials reported in this notice are the copyrighted DVD/videos of Wicked Pictures. A representative list of these works is available at http://www.wickedpictures.com

And for the "original URL" it just lists the Wicked Pictures URL again. You're supposed to show what actual copyright is being infringed -- not generally say "there's a representative list here."

Either way, this highlights (yet again) the absurdity of both the DMCA takedown process and the focus on blaming Google for everything. As TorrentFreak notes, if these DMCA notices had actually gone to GitHub, then Takedown Piracy might have been told more quickly that the demands were bogus. But these days, everyone wants to just hit Google with as many takedowns as possible, as a sort of negative "SEO" (Search Engine Optimization) technique, and thus even less care is put into takedowns than usual.

Filed Under: copyright, dmca, keywords, takedowns
Companies: github, takedown piracy, wicked pictures

Developer Issues Bogus Takedowns Against Cup Of Linux YouTube Channel In Retaliation For Being Banned For Abusive Behavior

from the IP-as-low-rent-thug dept

When you've run out of good ideas and constructive actions, there's always IP abuse. It's the perfect accomplice for all sorts of abusive behavior. Don't like someone using your own words against you? Just holler about copyright until the criticism goes away. Pissed off by a bad review? Fire off copyright claims on the footage used in the video.

Fair use and YouTube will never work in sync, mainly for logistical reasons. So it has become a go-to platform for IP abusers. Here's yet another story in which a legitimate YouTube account is a few steps closer to permanent death because a person decided to act vindictively, rather than responsibly.

The backstory: the Cup of Linux YouTube channel handles all things Linux, including coverage of distributions and how-to guides for new users. One Linux developer, Antoni Norman, is the main force behind the Pinguy OS Linux/Ubuntu hybrid. Over the years, he's been a valuable contributor to the Linux community, including the one centered around Cup of Linux. Also, over the years, Shawn Patrick Ryan ("Spatry") has covered Pinguy OS releases in a number of YouTube videos. So far, so good.

But things went bad. Here's Spatry's account of recent events (via email).

Pinguy was banned by moderators of my community at cupoflinux.com for several counts of misconduct while impaired. Pinguy is a great source of information and we have been more lenient with him than anyone else. I was going to consider lifting his ban after a 3 month period to send a strong message to him that we will not tolerate bad behavior from anyone. This act of acrimony makes his ban permanent and is treated as a "trademark troll" attack. The GNU general public license grants us the freedom to use GPL software in any way we see fit with the inclusion modifying, sharing and providing tutorials under FAIR USE.

An announcement at the Cup of Linux forums makes it a bit more explicit.

Users who require support for "P I N G U Y - O S" will need to direct their inquiries to their forum. The developer was justly banned from this community for multiple counts of bad behavior on our Mumble server.

In retaliation the developer of "P I N G U Y - O S" filed a trademark complaint against Cup of Linux for having promotional videos of that product. All developer posts have been removed from this board and all related materials have been purged from my YouTUBE channel. The forced removal of such videos do not hurt me personally but causes harm to community members who benefit from the tutorials.

Compiz videos tied to that series will be re-branded and re-released without "P I N G U Y - O S" logos or verbiage.

This is the notice Spatry received.

This has every appearance of being done for purely retaliatory reasons. This concern about his Pinguy trademarks didn't manifest itself until after he was banned from the Cup of Linux forums and server. Spatry has provided more evidence of the previously friendly relationship these two enjoyed, including Norman's appearance on videos produced by Cup of Linux, as well as his willingness to share his Pinguy OS logo with others for their own use.

In this thread, Norman praises Spatry for his How To video series featuring Pinguy OS and raises no objection to the sharing of a "Pinguy OS sticker" created by the Cup of Linux head.

This thread features both Spartry and Norman discussing a recent video featuring the Pinguy OS developer as a guest. Again, everything about the discussion is friendly. The only thing notable about it is Norman's assertion that he shouldn't have done the video "at 3am after 8 beers." Despite the abusive behavior leading to his banning being (apparently) alcohol-related, there's nothing in this discussion that indicates Norman crossed any lines during this recording session.

So, we have a friendly relationship that went south, due to Norman's problematic behavior when impaired. Norman had any number of options available to address this situation if he felt it was unfair. But rather than use any of those routes (appeal to moderators, wait out the suspension, address it at his own forum, etc.), he decided to jeopardize Cup of Linux's YouTube account by deliberately issuing bogus takedown demands.

As Spatry points out, the use of any Pinguy OS trademarks (and there's no evidence any of these are registered -- although ultimately that lack of official registration has little bearing on Norman's right to issue takedowns) was clearly fair use. The marks were used in the context of instructional videos and, apparently with Norman's full support prior to his banning. This is nothing more than Norman abusing tenuously-held "rights" to retaliate against Spatry for banning him.

YouTube has allowed Spatry to make changes in response to the requests and his channel doesn't seem to be threatened with a shutdown at this point. But that could change. The system is easily abused and Norman knows it. The amount of damage he can do is disproportionate to the actual "harm" he's experienced -- both by being banned and (especially) by having his suddenly beloved "trademarks" used in videos that were largely supportive of him and his OS.

Norman experienced no harm from Spatry's use of his trademarks. If he felt he had, he never mentioned it during the previous few years of interaction. It wasn't until he engaged in self-destructive behavior that he suddenly became interested in "protecting" his IP. Spatry is challenging the claims, but everything about the situation will be left up to YouTube's mostly automated processes. Context -- as well as fair use considerations -- won't be considered. No doubt Norman is aware how slanted the system is towards rightsholders. He knew he could hurt Spatry and his channel and suffer zero repercussions. The only damage he'll suffer is to his reputation.

This last avenue is the only route Spatry and Cup of Linux have available to them while YouTube sorts this out. While Spatry points out that Norman has been a useful contributor in the past, his current activity makes him any enemy of the same community he claims to be a part of.

As a community leader, I feel that I would be doing a major dis-service by keeping silent. If Antoni Norman wants to censor the community, maybe he should consider removing GPL licensing and applications from his operating system because this goes against everything the Free and Open software community stands for.

At this point, Spatry has removed an additional 29 23 videos from his channel in hopes of steering clear of further retaliatory actions -- above and beyond the six being disputed. That's 35 29 videos gone because of bogus trademark claims motivated by nothing more than vindictiveness. While we can all appreciate creators' desire to protect their creations, the solution isn't a system that can easily be exploited by petty individuals who have run out of good ideas.

Filed Under: antoni norman, cup of linux, fair use, ip, linux, pinguy linux, retaliation, spatry, takedowns, trademark, youtube
Companies: youtube

Canada Preps Launch Of An Actually Mostly Sensible ISP Copyright Warning System

from the almost-getting-it-right-for-once dept

Over the last several years, Canada has been working on copyright reform that not only actually makes sense, but, unlike efforts like SOPA here in the States, actually tries to incorporate user concerns (gasp). As part of that reform Canada reworked its ISP-to-user copyright infringement notification process, steering it toward a "notice and notice" system, which as we've noted in the past is vastly preferable to notice and takedown (or the ridiculous notice and staydown efforts) as it's less likely to stumble drunkenly into the realm of censorship and a litany of other abuses.

Canada's new ISP notification system is preparing to finally take flight starting January 1, and like the country's copyright reform efforts, it tries to actually incorporate the concerns of all parties involved (gasp, again). The system is first and foremost designed to raise awareness of copyright violations. That really doesn't take much -- Canadian ISPs state that simply notifying the user (especially the user's parent) puts a big dent in infringement right out of the gate. More specifically, ISPs claim 89% of notice recipients don't infringe after the second notice.

Canada's implementation manages to educate Billy's parents on copyright while still managing to protect user identities and legal rights. And while Canada's notice and notice system requires that ISPs forward on copyright violation notices to subscribers (for penalty of up to $10,000 if they refuse), it then grants legal ISPs safe harbor protection from liability. If a copyright holder isn't happy with this and wants to proceed with legal action, they have to follow strict procedures and go get a court order (gasp, in triplicate).

Generally, the system is seen as a step up for copyright reform, though that's not to say Canada's implementation doesn't have faults. As Canadian law professor Michael Geist notes, their notice and notice system doesn't specify what the notices should say, leaving the door open to "settlement-o-matic" threats. Since the entertainment industry also isn't required to compensate the ISPs for the workload, you the consumer will of course be paying for the program in the form of broadband rate hikes:

"There are fears that Internet providers will be inundated with notices, particularly since the government decided against establishing a fee for forwarding them. That could lead to increased costs for consumers. Moreover, the government also declined to specify the precise content of the notices, leading to concerns that some copyright holders may include threats to sue alongside dubious demands to settle the allegations for thousands of dollars."

Geist proceeds to note that Canada gets it mostly right and its implementation of copyright infringement notifications will likely be emulated by other countries. Well, probably not the States, where it seems inevitable the U.S. ISP notification effort (aka "six strikes") is destined to grow increasingly bloated as the entertainment industry slowly but surely demands expansion of the program. As it stands in the States, many infringers have simply hidden infringement by using popular BitTorrent proxy services. While Canada is busy getting it right, perhaps here in the States we can start seriously exploring outlawing proxies and VPNs to the benefit of job creators everywhere?

Filed Under: canada, copyright, isps, notice and notice, takedowns

Roca Labs Sues Blogger; Faces Legal Challenges In NY & Florida

from the slow-down-guys dept

Keeping up with the ongoing Roca Labs saga appears to require full-time effort, as there are a bunch of updates. First up, though, is that Roca Labs has decided to sue blogger Tracy Coenen for the articles she published about Roca Labs. Earlier this month, we wrote about Roca Labs' threats against Tracy Coenen, a fraud investigator, who wrote about Roca Labs on her Fraud Files blog. As in the past, it appears that Roca Labs believes statements that are clearly opinions or hyperbole are somehow defamatory if they reflect negatively on Roca Labs. Before filing the lawsuit, Roca sent a second threat letter with a very brief deadline, complaining that she "publicly mocked" them. Coenen's response was to publish a new blog post explaining why she believes "Roca Labs Must Be Mocked."

In the actual lawsuit, Roca also claims that because Coenen sent us Roca's threat letter and we published it, that she was using Roca's letter to "harass and mock" the company. Who knew that merely publishing the threat Roca Labs sent is harassment of Roca Labs? And, of course, mocking Roca Labs is not against the law, no matter how much the company might wish it were so.

In the meantime, it appears that Coenen actually did -- at least temporarily -- give in to Roca's demands and removed the blog post in question -- but Roca Labs claimed it was not enough because she "did not retract [her] Defamatory Statements or otherwise comment publically [sic] concerning the defamatory Statements' lack of fact and merit." Further, the lawsuit accuses her of trying to "conceal the truth and cover-up [her] bad acts."

So, to keep this straight: Roca Labs sent her threat letters claiming what she wrote was defamatory, and after she removed the post (temporarily), the company is using that as evidence that she's trying to conceal the truth? Really? Good luck with that one. Oh, and also, it appears that Roca's attorney in this case, John DeGirolamo, is still somewhat confused about what defamation per se means. Hopefully, the court will sort it out for him.

In the meantime, some other things have been happening in various other Roca Labs court proceedings. Up in New York, where PissedConsumer (Consumer Opinion Corp.) had originally sued Roca Labs for declaratory judgment of non-infringement, Roca Labs had been trying to get out of the case arguing that the jurisdiction is improper. But, as you may recall, Roca also recently sent a questionable DMCA takedown letter to Google, claiming that content on PissedConsumer was infringing (something we find unlikely to be true... but...). However, as PissedConsumers' lawyers in New York note, in filing that takedown, Roca Labs has effectively made itself subject to PissedConsumer's local court's jurisdiction. This is based on a ruling in another nutty case we covered for a while, the effort by Gina Crosley-Corcoran to use the DMCA to silence a critic. In that case, the court noted that, in serving a DMCA takedown notice, the sender "purposefully and voluntarily directed [its] activities toward the forum so that [it] should have expected, by virtue of the benefit [it] received, to be subject to [this] court's jurisdiction based on these contacts."

When PissedConsumer's lawyers notified Roca Labs' lawyers of this, Roca Labs stood by its argument that the court has no jurisdiction, but Roca Labs' lawyers didn't seem to understand the significance of this. In response, PissedConsumer is now seeking to go after Roca Labs for DMCA 512(f) penalties, for misrepresentations in filing a DMCA takedown.

And, finally, just to complete this trio of stories, we'll also note that, down in the Florida case, PissedConsumer has filed a humdinger of a motion for summary judgment, laying out why Roca Labs has no chance in its case, and why the case should be put to rest quickly. Given everything else going on, we won't go into a more detailed analysis of that motion, other than to suggest you read it, and note that, as we predicted, it relies heavily on Section 230. It's written by Marc Randazza, so it's got that readable style he's become known for.

Filed Under: copyright, defamation, dmca, john degirolamo, jurisdiction, lawsuits, marc randazza, paul berger, takedowns, tracy coenen
Companies: consumer opinion corp., pissedconsumer, roca labs