Nikola's Plan To Combat Its No Good, Very Bad Month Appears To Be Using Copyright To Silence Critics

from the keep-digging dept

PR crisis management is not an easy gig. When a company suffers through a tumultuous period, it is all too easy for a company to try to combat the bad press through all kinds of means that are, in the end, a detriment to the effort. Instead, good PR crisis management follows three chief axioms: don't lie, don't try to downplay the severity of the crisis, don't be afraid to say you screwed up.

Nikola Motor Company is doing a shit job of following this advice. As we detailed recently over the course of a couple of posts, the company is very much in the middle of a PR crises. It began when a hedge fund revealed that Nikoa founder Trevor Milton allegedly flat-out lied to the world about having a working Nikola 1 model in 2016, with the obfuscation going so far as to put out a video of the truck driving down a highway, when the reality was that the truck was rolling down a hill not under its own power. After that public report, Nikola missed the first deadline to have a major partnership deal with General Motors. The stock tanked, massively. Milton suddenly found himself facing two charges of sexual assault, one of them from his own cousin.

If ever there was a time when a company needed to follow good crisis PR protocols, this was it. Instead, the company is apparently quite busy trying to use the DMCA process to silence critics on YouTube.

As noted in a Financial Times report, a number of financial commentator channels on YouTube have reported that they received takedown notices from the hydrogen truck maker, resulting in several videos being removed from the video-sharing platform. In a statement to the publication, Sam Alexander, a Nikola critic and YouTube host, stated that he received notifications on Wednesday that at least four of his videos were reported for copyright infringement. All four of the videos featured sections of the “Nikola One in Motion” ad.

The same was true for fellow content creator Tom Nash, whose finance-themed channel has 41,000 subscribers. According to Nash, he was required to take down three critical Nikola videos including one that featured sections of the rolling Nikola One prototype. Nikola reportedly took issue with Nash’s use of videos that featured its prototype jet ski and hydrogen station as well. “It’s what you would call a death sentence for a creator. This is my livelihood. I have three kids. I quit my job to do this,” Nash told the FT.

Honestly, it's more that this is what you would call a death sentence for the company trying to abuse copyright law to silence critics who's critiques clearly fall under fair Uue. Put another way: if the company had a fallback position other than trying to censor its critics, it would have played to that position. Instead, Nikola is very much opening itself to both liability for bullshit DMCA claims and, more importantly, to even further public criticism as a result of the company trying to bury the public's head in the sand.

Now we're in pure Streisand territory. As a result of the company trying to bury criticism, that criticism is getting even more play and attention than it already had. If this strategy was thought to be a good idea by those in charge of Nikola, then maybe it truly would be best if the company just bad-acted itself into oblivion.

Filed Under: censorship, copyright, criticism, takedowns, trevor milton
Companies: nikola

Addison Cain Really Doesn't Want You Watching This Video About Her Attempts To Silence Another Wolf Kink Erotica Author

from the you-what-now? dept

Way back in the previous century of May, we wrote about a truly bizarre (but, not actually uncommon) story of someone abusing the DMCA to get a competitor's book disappeared. There was a lot of background, but the short version is that an author, who goes by the name Addison Cain (a pen name) and wrote a wolf-kink erotica book in the so-called "Omegaverse" realm (which is, apparently, a genre of writing involving wolf erotica and some tropes about the space), used the DMCA to get a competitor's book using similar tropes taken down. As we noted in our original article, both parties involved did some bad stuff. Cain was clearly abusing the DMCA to take down non-infringing works, while the person she was seeking to silence, going by the name Zoey Ellis (also a pen name) not only filed a (perfectly fine) DMCA 512(f) lawsuit in response, but also a highly questionable defamation lawsuit.

There was a lot of back and forth in that story, but eventually the publisher, Blushing Books, agreed that there was no infringement and worked out some sort of settlement. Cain herself had been dismissed from the case on jurisdiction grounds. Anyway, last week, YouTuber Lindsay Ellis (no relation to Zoey Ellis, which, again, was a pen name) created a truly amazing one hour video analysis of the Cain/Ellis legal dispute that does a very good job covering many of the gory details of the dispute and how it eventually fizzled out. I know it's an hour of your time that is partly about wolf-kink erotica and partly about copyright law, but I still highly recommend it (though, maybe watch it at 2x speed):

I mostly agree with the legal analysis, though I think she puts too much weight on the idea that a settlement has any precedential value (it doesn't).

It appears that someone who does not want you to watch the video is Addison Cain / Rochelle Soto. Because soon after Ellis posted the video, she posted part of a legal threat from a lawyer claiming to represent Cain.

The partial email has the subject: "Defamatory and harmful video content involving Addison Cain" and comes from Tynia Watson who I'm almost surprised to tell you is an actual copyright, patent and trademark lawyer in Oklahoma City. That makes the claims in the email even more embarrassing.

Ms. Ellis,

My firm represents Addison Cain. We are aware of your recent YouTube video and other postings related to lawsuits involving my client. In your video, you use my client's copyrighted content and make numerous false statements including statements from allegations made in the lawsuits that are not...

And then it cuts off. However, just the copyright claim is obviously bullshit. I mean, it gets to the heart of what we wrote about in our first post, about how frequently assholes abuse copyright law to falsely make claims to get something taken down. Copyright is, again, putting the force of the state into censoring criticism. At no point in the video is there any use of Cain's content that wouldn't be considered obviously fair use. Threatening otherwise is frivolous and makes both Addison Cain and Tynia Watson look ridiculous.

That this is all coming on the back of another lawsuit over Cain abusing copyright law to try to silence a competitor makes it worse.

Of course, this only made me even more interested to explore exactly what was in the video that has Cain so darn upset. There's a lot in there that makes her look bad, but one element is particularly damning. Throughout the ordeal, Cain had insisted that it was her (now former) publisher Blushing Books who did the DMCA all on their own. In a somewhat cloying blog post in which Cain claimed that Ellis' lawsuit was a nuisance lawsuit, Cain insisted that it was just her publisher filing the DMCA, not her. This is the same argument she makes in various legal filings as she seeks to be dismissed from the case, insisting that the publisher sent the DMCA notices entirely on their own, without Cain even knowing about it (to clarify the paragraph below, Soto is Cain's real name, and Draft2Digital is one of the ebook retailers that received a DMCA notice):

The most relevant inquiry in this case is whether Plaintiff has proven that Mrs. Soto “purposefully directed [her] activities at residents of the forum state.” Old Republic Ins. Co. v. Cont’l. Motors, Inc., 877 F.3d 895, 904 (10th Cir. 2017). Plaintiff believes that it has satisfied this burden by presenting one lone email, sent from the Office Manager of Blushing to Draft2Digital, which claims that the company had “been contacted by the author Addison Cain regarding an infringement on her titles.” See Doc. No. #6-3. This cursory comment in the forwarded email was immediately contradicted by the sender when she attached the DMCA takedown notice that was sent by Blushing’s Office Manager. Mrs. Soto has never had any direct communication with Draft2Digital and any indication to the contrary stated in the forwarded email where the employee of Draft2Digital appears to have mistakenly equated the publisher with the author should not be used as credible evidence to establish personal jurisdiction.

Key point: in her filing, Cain insists that she never instructed her publisher to file the DMCA notices. Publicly, she also insisted that it was all the publisher and that she had nothing to do with it. Except, as the video above points out, later discovery... shows that was not true. At all.

Discovery turned up an email thread between Cain/Soto and Blushing Books in which Cain tells Blushing to send the DMCA notices and saying she'll remain "naive" and "hide behind" the publisher in public:

The key paragraphs are the one in which she tells Blushing to send the DMCAs:

I would not write the author a warning letter. She is aware of what she did and has already stirred up shit and lied by omission. File the DMCAs immediately to Amazon, iTunes, and B&N (should only take 5 mins each). If you want to write her afterward with demands to see her financials, by all means go for it.

And then the paragraphs in which she says she'll play innocent and naive and pin the blame on Blushing if there's any backlash:

If amazon, iTunes, and B&N comply with the DMCA (which they should considering the evidence) and a stink arises, I am prepared for the backlash. I went through it with Reborn, and I'm not afraid. To settle it down, I will deflect to blushing and remain distant and naïve. "Readers sent in complaints. The publisher filed a DMCA based on evidence they uncovered of copyright infringement. Any issues should be raised with them. This is out of my hands." And I will remain silent publicly, unless it gets to a point that a single, professional post on the topic (once again deflecting to the publisher) needs to be posted.

Some people will be reactive right out of the gate, but that's why I have a publisher to hide behind.

Amusingly, in that email she also responds to a court ruling that her publisher sent her regarding a failed copyright infringement case between two authors of "bodice ripper" erotica. Cain gives a... weird legal analysis:

As it was a summary judgement [sic], I'm not concerned. The plaintiff should not have made that mistake, and their lawyers should have known better to use a summary judgement [sic] on a copyright case.

What? That sounds like someone who is unaware of what a summary judgment is. Anyway, then there's a further email thread in which the publisher agrees that Cain will "hide behind" the publisher so as not to look bad. This is in response to Cain sending the publisher a proposed Facebook post that, again, throws all the blame on the publisher and insists she had nothing to do with it:

My publishing house has chosen to take legal action against another author for plagiarism and copyright infringement of one of my books. They own the rights to print and distribute my story, and should an outside influence try to profit from it, they are legally bound to respond. This is outside of my control.

This is wrong legally and factually, but hey, the publisher agreed to it:

Key line:

I think your decision to hide behind Blushing and paint us as the instigators is how it absolutely should be. Let us take the heat. All you have to say is "My publisher chose to take action. It was and continues to be out of my hands." Let people get mad at us.

And, sure, that's fine if she wants to lie to her fans, but in court, you can't do that. But she did, again insisting that she had nothing to do with the DMCA notices, when it's beyond clear that that was false.

This eventually led to Zoey Ellis asking for Cain/Soto to be held in contempt and sanctioned for perjury. Three days later the case settled.

The YouTube video above discusses all of this. And you might understand why Cain/Soto would be upset about it. But, by fucking now she should have realized that sending bogus claims of copyright infringement are a bad idea -- especially to someone who just spent quite some time learning about the ins-and-outs of copyright law.

Either way, the threat itself is yet another attempt to bully someone into silence via questionable copyright claims. If Cain/Soto actually goes ahead with this, she might have to learn not just about what summary judgment means, but also anti-SLAPP laws. And, yes, as we've discussed Virginia (where Soto lives) has a weak anti-SLAPP law, but they're expected to get a new one soon, and it would apply to existing cases -- meaning that if she did go ahead and she, Soto, may end up paying Lindsay Ellis' legal fees. One would hope that Tynia Watson would alert her client to this possibility.

Filed Under: 512f, addison cain, copyright, defamation, dmca, lindsay ellis, omegaverse, rochelle soto, slapp, streisand effect, takedowns, zoey ellis
Companies: blushing books

Copyright Trolling Evolved: Okularity Accused Of DMCAing Social Media Accounts, Then Demanding MILLIONS To Reinstate

from the copyright-trolls-just-get-worse dept

A decade ago, one of the most ridiculous copyright trolling outfits was CEG TEK (which stood for "Copyright Enforcement Group... um... TEK"). It would shake down people like any other copyright troll, but it also had a "CTO", named Jon Nicolini, who CEG TEK would trot out as a questionable forensic expert in various trolling cases.

It appears that Nicolini has since set out on his own, creating a more modern form of a copyright trolling operation called "Okularity." We've talked recently about how some folks have, instead of using the courts, simply been using social media takedowns via bogus copyright claims as a form of extortion, and that's become quite popular. However, so far, it seems that this has mostly been done by stupid kids looking to make a quick buck.

Nicolini and Okularity appear to have professionalized the extortion racket.

And they may have picked on the wrong person. In a recently filed lawsuit by Enttech Media Group, the parent company of the famous (and excellent) Paper Magazine, lawyer Richard Tauler lays out in great detail the kind of scam shakedown that Nicolini runs via Okularity:

Defendants are engaged in a scheme to deprive Plaintiff and similar digital media companies of their assets by unlawfully manipulating the take-down notice provisions of the Digital Millennium Copyright Act (“DMCA”). Specifically, Defendants have created software for the express purpose of disabling valuable commercial accounts on social media platforms (in this case Instagram) so that they can then demand extortionate sums (in this case over a million dollars) from the account holders to have the accounts restored.

The scheme operates in the shadows of the Copyright Act and the DMCA. The DMCA provides a rapid procedure (referred to herein as a “DMCA Notice”) so that copyright owners can protect the widespread proliferation of their content digitally. A DMCA Notice requires a statement under penalty of perjury that the submitting party has a good faith belief that the content identified in the notice is infringing on a copyright and that the submitting party is either the copyright owner or an authorized agent of the copyright owner.

Most social media platforms, including Instagram, have policies whereby accounts are disabled once a certain amount of DMCA Notices have been submitted on a particular account. Once an account reaches this threshold, Instagram will not reinstate the account until the underlying copyright “dispute” is resolved. Because of the work associated with the identification and investigation of copyright claims, as well the DMCA’s penalties for misstatements, it is generally unlikely that owners of legitimate copyrights would abuse this system.

However, given the massive financial incentives provided to mercenary litigants by the Copyright Act, would-be claimants have leveraged advances in technology to create economies of scale in pursuing claims. Specifically, Okularity has developed software that crawls the internet for images that infringe on allegedly protected works. Through its proprietary software, Okularity automatically generates and submits DMCA Notices to any social media platform, including Instagram, containing an image in Okularity’s database. Okularity does this without any of the investigation, warning, or legal analysis required by the DMCA, let alone any demand letter to the alleged infringer.

Rather, Okularity lies in wait while DMCA Notices accumulate to the point where Instagram disables the account. Only then does Okularity begin to negotiate “settlement” for the alleged copyright claims. Okularity operates this way because Okularity knows that Instragam is the lifeblood of any digital media company, particularly one like Plaintiff Paper, which primarily is engaged in the business of reporting and commentary of popular culture news and, as such, targets a young demographic that uses Instagram as its primary source of media consumption. Okularity knows that if a business like Paper has its Instagram account disabled, it has a metaphorical gun to the head of the target company, since it also knows that Instagram will not reinstate the account without a resolution of the “dispute.” With this type of leverage, Okularity (and in turn the Clearinghouse Defendants) can demand sums that they would never be able to demand with a straight face otherwise, putting owners of even large businesses like Plaintiff in a life-or-death situation.

Pretty fucking sketchy, no? As the lawsuit notes, however, this appears to violate the terms of the DMCA regarding what you need to do in filing a notice -- making this an interesting test to see whether or not the courts might finally give Section 512(f) of the DMCA (the part that says you can't file bogus notices) some more teeth. As we've noted, courts have been reluctant to care much about 512(f), which has set up a very unbalanced system, in which tons of people and companies regularly abuse DMCA notices. Usually for censorship.

Here it appears to be for extortion.

The specifics of the Paper Mag / Okularity situation detail how this seems to be an entire business built around extortion, with a bunch of unauthorized practice of law built in as well.

Okularity, which is not a law firm, purportedly “represents” the “Clearinghouse Defendants” with respect to their Copyright “claims.” Okularity’s “CEO” Jon Nicolini, created the software Okularity deploys to file DMCA Notices, and negotiates “settlements” with victims of the scheme once they contact Okularity. Nicolini, who is not an attorney, implies that he is an attorney to victims by interpreting the application of the Copyright Act to images, engaging in damages analysis regarding “claims” of his “clients,” and by negotiating resolution of legal claims on their behalf.

Defendant Backgrid actively solicits members of the public, including persons with whom it has no relationship and about whom it has no knowledge, to upload to it photos which Backgrid will then ostensibly “license” (for payment) others to display and otherwise exploit. Backgrid then uses software to automatically generate copyright management information (“CMI”) so that it can track whenever an image is used. Since Backgrid conducts no due diligence of images uploaded to its website for exploitation, and the corollary opportunity for abuse, Backgrid itself has been sued by actual copyright holders for copyright infringement.

Defendant Splash is similarly a clearinghouse for photographs with a checkered past. In 2018, Splash was sued by soccer star David Beckham for its “predatory and distasteful” tactics, which included demanding payment from Mr. Beckham for posting a picture of himself (taken by a paparazzo) on his very own social media account. Beckham v. Splash, Case 2:18-cv-01001-JTM-JCW (E.D. La.). Counsel for David Beckham viewed the $40,000 demand as an attempt to “extort.”

Okularity’s new business model pre-empts such lawsuits by using DMCA Notices instead of demand letters. However, since the DMCA Notices are automatically generated and submitted without any attorney supervision, Okularity does not engage in any analysis prior to generating and filing DMCA take-down notices as it should.

Rather, Nicolini operates the scheme with the sole objective to disable social media accounts. Not only is no demand letter needed, the scheme makes it so that its victims come to Okularity, often in a state of desperation, once they realize their asset is being held hostage. This is precisely what occurred in the instant case.

It was only after Okularity filed forty-eight (48) DMCA take-down notices against Paper that Instagram disabled Paper’s account. The same day, July 8, Paper was provided with the contact information of Nicolini, who immediately began negotiating the “claims.”

Nicoloni suggested that Paper was facing $4.65 million in damages under the Copyright Act. Nicolini curiously added that it was not his “first rodeo.” A screenshot of the email is below:

Sixteen minutes later Nicolini responded, this time with apparent authority to communicate on behalf of his “clients” under Federal Rule of Evidence 408 to settle for $1.01 million:

However, Nicolini is not an attorney and is therefore unable to assert legal claims on behalf of his “clients,” and likewise cannot negotiate and enter into agreements on their behalf in the context of a copyright lawsuit.

Needless to say, this offer was unable to be accepted. In further effort to reach a resolution, the undersigned requested Mr. Nicolini provide the DMCA notices so that Plaintiff could assess the claims at issue. Nicoloni has refused to do in the absence of a “non-disclosure agreement.” When asked why a “non-disclosure agreement” would be needed, Nicolini had no answer

That's... pretty fucking sketchy in many different ways. The lawsuit argues that the defendants breached 512(f)... but then also throw in a RICO claim. And that always seems iffy. As we all know, the Popehat rule of "it's not RICO, dammit" tends to apply. And I'd still lean towards it not applying here, but I have to admit that this is closer to an actual civil RICO claim than you normally would see. You do have a group of individuals / companies, working together in a pattern to shake down businesses. I still don't expect that claim to last, but this sure does look like a traditional shakedown scheme, using DMCA takedowns for leverage over social media accounts.

Filed Under: 512f, automatic takedowns, copyright, copyright troll, dmca, dmca 512, exotrition, jon nicolini, rico, shakedowns, takedowns
Companies: ceg tek, okularity, paper magazine

What A Shock: Scammers Are Abusing YouTube's Notice And Takedown System With DMCA Claims

from the duh dept

There has been something of an explosion of copyright claims on streaming services as of late. Frankly, the impetus for these claims is all over the place. You have your ever-expanding cadre of copyright maximilists going ballistic. There are the political actors, looking to copyright claims to try to take down content from those on the opposite side of the aisle. There are the automatic bots that crawl for content and get it wrong many times. And then there are the scammers.

There are lots of ways to abuse copyright to scam folks out of money, or their accounts and content. But one recent method appears to be crawling for YouTube videos that incorporate tiny sections of video game music and then attempting to take over monetization of those videos.

Twitch streamer and content creator Ludwig Ahgren was hit with a copyright claim on one of his newer videos, but with a little bit of research, it became clear that it was a scam. The claim in question came on his video that was supposed to go up today where he talked with fellow streamer Devin Nash. The copyrighted material was listed at the end of the video. After pulling it up, however, the only sound playing was Zelda’s Lullaby from The Legend of Zelda Ocarina of Time.

If the claim came from Nintendo, it would have held some actual credibility. But video game music is frequently used in videos because companies tend to avoid copyright striking those to avoid taking down gameplay by accident.

But it wasn't from Nintendo or any other company. Instead, it was from someone named Hezkej Benes from a video called "Happy Doge." And after a quick search, Ludwig found the video in question, which had less than 200 views, and was simply a collection of the beginning of popular songs and meme sound effects.

So, how it works is that the scammer loads up a video of snippets of copyrighted video game music and the like, since game makers don't typically issue takedowns for that sort of thing, and then makes copyright claims on other content using those same snippets. From there, assuming there is no pushback from the maker of the other video, the scammer gets to slurp up whatever revenue those videos generate.

This is effective as a scam due to the notice and takedown system in place with YouTube. Without the opportunity for review, either by the impacted streamer or by a human at YouTube, scammers can fire off these notices at will and rely on a small percentage of pushback being received. Whatever the intent behind this system, it's clear at this point that there are multiple avenues for abuse. That makes it high time that we revisit all of this and see if there is a better way.

Filed Under: abuse, copyright, takedowns

Twitch Faces Sudden Stream of DMCA Notices Over Background Music

from the open-the-hatches dept

There is obviously a great deal of action going on currently in the streaming world, spurred on in part by the COVID-19 crises that has many people at home looking for fresh content. Between the attempts to respond to social movements and tamp down "hateful" content to changes to the competitive landscape, streaming services are having themselves a moment. But with the sudden uptick in popularity comes a new spotlight painting a target on streaming platforms for everyone from scammers to intellectual property maximilists.

Twitch has recently found itself a target for the latter, suddenly getting slammed with a wave of DMCA notices that appear to focus mostly on background music.

Copyright strikes are an occupational hazard for many Twitch streamers and content creators, but a recent surge of DMCA takedown requests has overwhelmed the community. Now, Twitch support staff has responded to complaints, stating that the claims are focused on clips with background music from 2017 to 2019, and recommending that streamers remove them. The tweets also state that this is the first time that Twitch has received mass DMCA claims against clips.

Given that Twitch is still most popular as a site for live-streams and let's-plays of video games, the speculation is that a great deal of this is targeting clips that include video game music. And, as we've seen elsewhere, it's also the case that scammers are currently using game music as a method to try to takedown or monetize the videos of others. Whether or not that's what is going on here is anyone's guess, as Twitch is making it fairly clear that the flood of notices is so large that it's simply taking down content and advising its streamers to proactively take down anything that might include this sort of copyrighted content.

Except that leaves no room for a number of things, including arguments for Fair Use of certain music, not to mention streamers that may be using game music from individuals or companies that don't mind their work being up on Twitch. In the case of the latter, this is where scammers can most insidiously insert themselves into the mix.

And, what's more, even the lawyers are telling streamers not to counter the claims without getting an attorney, so fraught is the copyright landscape.

The action also prompted a response from advocates like Ryan Morrison, better known as the Video Game Attorney. Morrison advised content creators not to counter the claims without speaking to an intellectual property lawyer. "You are quite literally telling them you are going to continue what you’re doing unless they sue you," he tweeted. "Don’t threaten billionaire companies to sue you. Lawyer up."

So here's this newly thriving ecosystem of Twitch streamers, creating content that is not a mere copy of anything, but may use some copyrighted content in streams, and a huge chunk of it could get disappeared either out of legal compliance by Twitch or proactive fear-based takedowns by the streamers themselves.

All over some clips including background music? I'm trying to picture myself explaining all of this to the framers of copyright law, but somehow I don't think they'd get it.

Filed Under: background music, copyright, dmca, takedowns
Companies: twitch

WWE Lawyers DMCA Tweet With Video Of Independent Wrestling Event, Probably Over A Hashtag That Promotes WWE

from the takedown-the-takedowns dept

I think it's fair to say that the lawyers for wrestling's WWE have found themselves playing the heel in the past. Perhaps it's the result of the company being run by known crazy person Vince McMahon, who has found his way to our site by being an IP protectionist among other things. WWE's lawyers have tried some pretty nefarious methods for going after those they believe violated WWE's intellectual property rights. For instance, they tried to get the mailing address of the operator of a streaming site by falseloffering a gift bag.

But the legal team never tried to simply and incorrectly make DMCA claims on the videos of other wrestling operations... until now. Bar Wrestling, which is described as an independent wrestling promotion, routinely films its matches and events, and puts them online for free, including on Twitter. For some reason, a lawyer for the WWE issued a takedown on one tweet with Twitter, which complied and removed the content.

That "illegal link" goes to video content owned by Bar Wrestling. Period. Full stop. I can't be sure, but my guess is that the lawyers for WWE police WWE hashtags, so when they saw the hashtag denoting one of the wrestlers in the tweet, and saw the shortened link, they assumed it was illicit content to an illicit site. Which ultimately means that WWE lawyers go about laying claim to content on the internet without doing even the barest amount of checking into that content, as simply clicking the link would have made it clear that this was Bar Wrestling content.

So, WWE called someone else's content theirs, Twitter immediately takes it down, and then it's left for the victim to go clean up everyone else's mess? Need we a better example as to why takedowns at the speed of light are absolutely stupid?

Filed Under: content moderation, copyright, promotions, takedowns, wrestling
Companies: bar wrestling, wwe

Trump Campaign Gets Parody Cartoon Taken Down Off Redbubble Over Trademark Claim On MAGA Hats

from the 2020-in-a-nutshell dept

If I had to come up with a more 2020 headline than the above, I'm not sure I could. Still, this is also in the Techdirt wheelhouse as far as topics are concerned. For background, I think it's fair to say that the Trump Campaign, and Donald Trump as well, have both built a reputation for themselves as being particularly litigious when it comes to all things IP, defamation, etc. etc. amen. Whatever your politics, it simply can't be denied that on First Amendment grounds, our current president and his organizations have an abysmal reputation on matters of free speech, so long as that speech could potentially pierce the notoriously thin skin of Donald Trump.

This continues to today, of course. You can see it when there are executive orders issued just because social media companies point the public to facts about the President's claim. You can also see it more recently in the Trump campaign issuing a takedown with Redbubble for a parody cartoon over the trademark on MAGA hats.

The Pulitzer-winning cartoonist Nick Anderson has described Donald Trump as an “adolescent wannabe authoritarian”, after the US president’s re-election campaign failed to pull one of Anderson’s cartoons mocking Trump’s inaccurate suggestion that injecting disinfectant could protect against Covid-19. Anderson put his cartoon The Trump Cult up for sale on the online retailer Redbubble this month. The illustration shows Trump with supporters in Maga hats, serving them a drink that has been labeled “Kool-Aid”, then “Chloroquine” and finally “Clorox”, a US bleach brand.

But Redbubble pulled Anderson’s illustration from sale following a trademark infringement claim made by Trump’s campaign organisation, Donald J Trump for President Inc. Writing on the Daily Kos, Anderson said that he believed the claim was made due to his depiction of Maga hats, and described the situation as “absurd”.

Frankly, "absurd" doesn't even begin to describe it. All kinds of speech are protected by the First Amendment, whatever the trademark rights any holder might have. Political speech is probably more revered in that regard than any other speech. The very idea that an artist couldn't create parody art that comments on a particular public figure and/or his or her voting block is so completely the antithesis of American history that one should really just have to yell something like, "The Federalist Papers!" at this sort of thing and be done with it.

This country was built on political parody. And, frankly, cartoon parody in particular. The Trump campaign does, or at least should, know this. Redbubble does too, which explains the fairly very good mea culpa that it issued when the site reinstated the cartoon.

Redbubble reinstated Anderson’s cartoon this week, saying that it strives “to respect IP rights and freedom of speech, but we sometimes make mistakes, as we did here … We’re sorry for any inconvenience this has caused.” In a statement, Anderson praised Redbubble for recognising the error, but said there were some “troubling issues” raised by the affair, including that the cartoon was removed less than 24 hours after he posted it, before he had received a single order.

“I doubt anyone had even seen it yet on the site,” he said. “This reveals that the Trump campaign has a system in place, trawling for material they find objectionable. If it happened to me so quickly, it likely has happened to others. How much other content has been removed this way on Redbubble and other sites?”

While fair, the real issue here is that a demand for proactively policing copyright and trademark abuses is a system ripe for abuse, for censorship, and for fallout around the takedown of protected speech. This serves as simply a pointed example of this sort of thing, given that we're talking about a sitting President's campaign taking down such political speech. While this was ultimately corrected, the idea that something so American as a political cartoon could have been disappeared, even temporarily, over such a specious trademark claim is highlighting a flaw in the system.

So let's get it corrected.

Filed Under: censorship, donald trump, maga, nick anderson, political cartoons, takedowns, trump campaign
Companies: redbubble

Twitter Taking Down Trump Campaign Video Over Questionable Copyright Claim Demonstrates Why Trump Should Support Section 230

from the better-for-free-speech dept

Here's an interesting tidbit: the latest move by Twitter to deal with a tweet related to President Trump is that it pulled down a Trump campaign video that was presented as a "tribute" to George Floyd, the Minneapolis man murdered by police last week, and whose senseless death has brought so many thousands to the streets across the US. The video remains on YouTube for the moment. It includes a lot of still photos and a few short video clips. It appears that the copyright holder on one (or perhaps more) of those images and clips likely didn't like it to be included for use by a President for a propaganda video they disagreed with, and filed the DMCA claim.

I think there's a very strong fair use argument here for a whole variety of reasons (and, yes, I fully understand the moral claims that whoever took this photo may feel about it being used in this way, but copyright is not supposed to be used in that way).

But seeing as this comes so soon after Trump's complete and total meltdown over Twitter and Section 230 after it added some additional context to one of his tweets -- leading him to state publicly that Section 230 should be revoked -- I do wonder if this move, in which a video was actually taken down (unlike with his tweets), will have him similarly rage against copyright law? Will we see an executive order demanding an impossible reinterpretation of Section 512's notice-and-takedown provisions? Or does it not work like that?

Of course, what this really demonstrates is why Trump and his fans should absolutely support Section 230, rather than pan it. Section 230, among other things, gives Twitter the freedom to decide how best to run its site, and to date, that's meant bending over backwards to keep the President's tweets online and available for people to view. However, Section 230 explicitly exempts intellectual property. For copyright, there's Section 512 of the DMCA, which is much, much weaker than CDA 230. With CDA 230, there's an immunity -- if there's 3rd party content, a site is not liable and also a site cannot be liable for its moderation choices. With DMCA 512, it's a "safe harbor." Where if you meet certain conditions, you can then be protected. But one element of that safe harbor, is that to retain it you have to take down the content upon receipt of a valid DMCA takedown notice.

I've long argued that this aspect of the DMCA 512, in which the threat of significant liability from the state (i.e., the court system) raises serious 1st Amendment issues. That's because the law heavily favors silencing content with the threat of massive liability if you don't. And the system is heavily imbalanced as there's no effective punishment for false notices, meaning the system is weighted very, very heavily in favor of censorship.

So here's a good point to compare how the two different "intermediary liability" regimes actually work. Under CDA 230, free speech is much more protected. Indeed, the very nature of it is that the courts under 230 cannot force sites to take down speech (they leave that choice up to the sites themselves). Under DMCA 512, however, the liability issue makes it very, very easy to issue bogus takedowns that lead to content being removed.

It's interesting that this is all coming a week after Trump's bizarre tirade against 230, and the same week that the Senate argued that we should make the censoring power of the DMCA even more censorial.

It seems a much better approach would be to leave 230 alone, but fix DMCA 512 by getting rid of the imbalanced nature in putting tremendous state pressure on websites to remove content based solely on an accusation of infringement.

Filed Under: campaign video, copyright, dmca, dmca 512, donald trump, free speech, george floyd, notice and takedown, section 230, takedowns
Companies: twitter

Guinness World Records People Accidentally Claiming Copyright On Tons Of 'Super Mario Bros.' Speedruns

from the automagic-mistake dept

Even a cursory review of just the headlines on our posts about YouTube's ContentID will demonstrate a theme. That theme mostly centers around how the automagic copyright detection system that YouTube put in place is mostly useful for creating collateral damage on non-infringing material, often times at the expense of the rightsholders themselves. Whenever this happens, there are usually apologies issued, blame cast on ContentID for the mistake, and then everything continues on with no changes made. Which is absurd. These situations identify a flaw in the ContentID system, or the use of an automated system of any kind, and yet we never do anything about it.

Which is why this sort of thing keeps happening. The most recent example of this concerns tons of Super Mario Bros. speedruns being issued copyright notices because the YouTube channel for the Guinness Book of World Records uploaded a record-holding speedrun itself. From there, ContentID did its thing.

About nine months ago, Guinness put together a video profile on Super Mario Bros speedrunner Kosmic including footage from his record-breaking warpless run. Now, Kosmic’s own video of the record and tons of other SMB speedrunners have had copyright claims made on their similar videos.

Guinness have now released those claims saying “sorry for causing concern, we know how distressing it can be to get these notifications,” signed by Dan. Ta, Dan.

The Guinness people later tweeted out the explanation that ContentID was to blame for sending out the automatic claims. And I believe them. Still, this is again highlighting a flaw within the ContentID system, in that, far too often, legitimate content either gets taken down or issued a copyright notice all because no human being actually has to look at anything before those go out. And, since there are plenty of ways a video could use similar content, or even a copy of some part of some content, without being infringing, the automatic system fails at distinguishing that and sends out the notice anyway.

This is how it always is with these automatic content policing systems. And yet here is another case where the apology is made, the apologizer blames ContentID, and on and on we go. Even when another speedrunner, Karl Jobst, did a video on how his speedrun received a copyright notice, that video received a notice as well.

Funnily enough, even Jobst’s video on the subject initially got slapped with a copyright claim. Thankfully it sounds like Guinness have cooled their trigger finger.

But it's not funny. It's just frustrating.

Filed Under: auto claims, contentid, copyright, kosmic, speedruns, super mario bros., takedowns, world records
Companies: guinness, youtube