Bogus DMCA Notices Still A Huge Problem As Apple Gets Unfairly Blamed For Reddit Takedown

from the nice-website-you-have-there dept

As we've discussed in the past, the DMCA system is enforced in such a way as to make it wide open for abuse. One of the chief problems is that, while the DMCA does include potential punishments for filing bogus notices under 512(f), the courts have traditionally appeared to have forgotten that this part of the law even exists. The end result is that anyone looking to censor or extort others by either filing or threatening to file bogus DMCA notices is mostly free to do so without risk. The times when 512(f) actually gets a spotlight are so few and far between as to be news when it happens. This has been going on, and has been pointed out by various publications, for years.

And yet it still goes on. Earlier, Mike wrote about Apple sending a questionable DMCA takedown to Twitter regarding a tweet, but there was a separate part of that story. Beyond the takedown to Twitter -- which everyone (including Apple) recognized as coming from Apple -- there were other takedowns sent to Reddit, leading the subreddit /r/jailbreak to go into lockdown. This followed the removal of several posts discussing how that Apple encryption key was taken down (as explained in the earlier post). Many leapt to the conclusion in both the media and wider internet that Apple was behind the shuttering of /r/jailbreak as well.

Since Apple was behind the takedown on Twitter and the most obvious culprit in respect of the DMCA takedowns on Reddit, many fingers were pointed towards the Cupertino-based company. However, despite the best efforts of the moderators on /r/jailbreak, Reddit’s admins would not provide the necessary information to identify who filed the DMCA notices or on what grounds.

With uncertainty apparently the order of the day, moderators of the discussion forum took the drastic decision to put their platform into lockdown.

“Locking down the subreddit to prevent new threads is one of the ‘standard’ responses moderators take to show the admins that the mod team isn’t playing, and that they are serious and ready to remedy the issue,” a post from the mods reads. “Too many DMCA notices eventually end up with a warn and a ban (or just a ban) from the admins to whatever subreddit these notices are being sent to.”

Part of the problem when it comes to this sort of thing with Reddit is that the site isn't at all transparent about the DMCA notices it receives. Due to that lack of transparency, the logical conclusion to which everyone leapt wasn't immediately countered by the documented reality. Because, as it turns out, the DMCA notice Reddit received which led to all of this was a fake. And a poorly constructed one at that.

And, according to fellow developer ‘axi0mX’, the fake notice wasn’t particularly well constructed either.

“We reviewed it and confirmed that it was someone impersonating Apple. It was not sent from their law firm, which is Kilpatrick Townsend. There are issues with grammar and spelling,” he revealed.

“This notice was obviously not submitted in good faith, and it was not done by someone authorized to represent Apple. Not cool. They could be sued for damages or face criminal charges for perjury.”

There are multiple issues here. The DMCA is by nature open to a non-zero sum of abuse. That non-zero sum gets higher and higher due to the courts and government not bothering to enforce the parts of the law that punish the abuse and fraud. Finally, the law creates a situation where sites like Reddit can decide against transparency when it comes to these DMCA notices, meaning that the fraud works all the better in creating a public backlash against a victim that, in this case, didn't deserve it.

If we're going to have a DMCA at all, it sure would be nice if it could be properly enforced.

Filed Under: bogus takedowns, dmca, dmca 512, dmca 512(f), dmca 512f, takedowns
Companies: apple, reddit

YouTube Sues Guy Who Tried To Extort People Through Bogus DMCA Takedowns

from the 512(f)-lives! dept

We've talked in the past about how Section (f) of the DMCA Section 512 is more or less a dead letter. 512(f) is the part that is supposed to stop bogus DMCA takedowns, by saying that you can be liable for "misrepresentations" in takedowns. In practice, though, courts never seem to award anything for bogus takedowns, meaning that it's a "free" way to censor anyone you'd like. Or worse. Earlier this year, we covered how some had taken the DMCA abuse process so far that they were using bogus YouTube DMCA takedowns as part of an extortion scheme. Literally, people would contact popular YouTubers (often those who made videos about Minecraft) and threaten to DMCA their videos if they didn't receive payment.

It appears that YouTube was actually paying attention, and it has now filed a 512(f) claim against at least one of the people doing this, a guy in Omaha, Nebraska named Christopher Brady -- who probably is not having the best week. You can read the complaint here. It's pretty straightforward:

Defendant, Christopher L. Brady (“Brady), has repeatedly attempted to harass and extort money from YouTube content creators through bogus allegations of copyright infringement. This lawsuit seeks to hold him accountable for that misconduct, and for the damage he has caused to YouTube.

In 1998, Congress enacted the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”), to provide a framework for addressing claims of online copyright infringement. In general, the DMCA immunizes online service providers from claims of copyright infringement based on materials uploaded to the services by users, if the services promptly remove allegedly infringing materials upon receipt of notices from copyright holders. Through these notices, the content of which is statutorily prescribed, copyright holders are able to secure the expeditious removal of allegedly infringing materials from online services without the need to prove a claim of infringement in court. Users that receive infringement notices they contend are incorrect may file a counter notification by providing their name, address, and telephone number, and consent to service of process by the complaining party.

Congress also recognized that these “takedown notices” could be used maliciously to secure the removal of content that was not legitimately claimed to be infringing. Accordingly, it included a provision in the DMCA authorizing those aggrieved by fraudulent notices to bring an action against the sender for damages. This is such an action.

The complaint lays out Brady's behavior in fairly great detail.

Defendant Brady targeted the YouTube accounts of Kenzo and ObbyRaidz, among others, in an extortionate scheme.

In January 2019, Defendant Brady, using several falsified identities, sent YouTube multiple notices of alleged copyright infringement pursuant to the DMCA, claiming that two videos uploaded by Kenzo and two videos uploaded by ObbyRaidz supposedly infringed copyrights that he owned.

Defendant Brady’s notices of alleged infringement included the various representations required under the DMCA. Brady identified the specific locations of the videos posted by Kenzo and ObbyRaidz. He represented that he was the original creator of those videos, that he held the copyright to them, that the videos posted by Kenzo and ObbyRaidz infringed his copyrights, and that each of his notices was accurate. And he certified: “UNDER PENALTY OF PERJURY, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.” Brady even included links to other copies of the videos in question as “proof” that he, rather than Kenzo and ObbyRaidz, had created them.

Defendant Brady’s notices of alleged infringement were fraudulent. The videos posted by Kenzo and ObbyRaidz that Brady identified in his notices did not infringe any copyright supposedly owned by Brady. Brady knew that at the time he sent the notices. Brady also knew that did not hold the copyright to the videos he identified as his own in the notices. His certifications under penalty of perjury in the notices were knowingly false.

Defendant Brady sent the notices of alleged infringement for the improper purpose of inducing YouTube to remove the identified videos and assess unwarranted copyright strikes on the Kenzo and ObbyRaidz accounts.

The complaint goes on to note -- as we had in our article earlier this year -- the blackmail messages sent to the account creators, noting that once these were publicized, YouTube investigated the claims, removed the strikes on the user accounts and restored the videos. However, it appears that Brady decided to try again -- though this time it appears that it was as part of some larger fight, in which Brady was trying to expose a YouTube user's home address, likely for swatting (the user was swatted a few days later). It's interesting to see that part of YouTube's investigation of the matter apparently involved observing others' Twitter accounts:

A review of Defendant Brady’s and Cxlvxn’s Twitter accounts from this time period suggests they were engaged in some sort of online dispute and it appears that Brady sent the notices of alleged infringement for the improper purpose of inducing Cxlvxn to submit a counter notification, thereby exposing his home address.

Cxlvxn submitted a counter notification on July 4th, 2019. On July 10th, he announced via Twitter that he had been the victim of a swatting scheme that day. “Swatting” is the act of making a bogus call to emergency services in an attempt to bring about the dispatch of a large number of armed police officers to a particular address.

Given the timing of (i) Defendant Brady’s online dispute with Cxlvxn, (ii) Brady’s false copyright claims against Cxlvxn; (iii) Brady’s receipt of Cxlvxn’s true home address via Cxlvxn’s counter-notification; and (iv) the reported swatting incident, it appears Brady used the personal information gained through his abuse of the DMCA process to engage in swatting.

Given this, it's possible that Brady may soon be in a lot deeper shit than a 512(f) civil complaint. Law enforcement often can't go after swatters since they're hard to track down. But if YouTube has done the work for them...

Either way, it's interesting to see YouTube trying to breathe some life back into 512(f). This case seems perfectly made for just such a thing. If this case can't get a 512(f) win, then no case can. YouTube is asking for Brady to cover their legal fees (which I'm sure are substantial), as well as an injunction barring Brady from submitting more bogus DMCA notices. It's interesting to note that they're not even looking to bar him from YouTube entirely -- just from submitting bogus DMCA takedowns. It's also seeking damages for the time and effort the company had to put into dealing with his bogus DMCA takedowns. (Update: I had missed this last bit initially, but have now updated the post to reflect that).

While Brady may end up in deeper hot water over the swatting claims (should prosecutors suddenly take an interest in him over this), from a purely copyright standpoint, it would be nice to see 512(f) succeed in one case before we reach the heat death of the universe.

Filed Under: 512(f), bogus takedowns, censorship, christopher brady, copyright, dmca, extortion, swatting, takedowns
Companies: youtube

Yet Another Case Highlights Yet Another Constitutional Infirmity With The DMCA

from the saying-yes-to-censorship-and-no-to-states'-rights dept

Once again, the Constitutional exceptionalism of the DMCA has reared its ugly head. Thanks to the way it has been interpreted we have already enabled it to become an unchecked system of prior restraint, which is anathema to the First Amendment. And now yet another court has allowed this federal law to supersede states' ability to right the wrongs that misuse of the DMCA's censorship tools inevitably causes, even though doing so arguably gives this federal law more power than the Constitution allows.

The two problems are of course related. Prior restraint is what happens when speech is censored without ever having being adjudicated to be wrongful. That's what a takedown demand system does: force the removal of speech first, and sort out whether that was the right result later. But because the Ninth Circuit has taken the teeth out of the part of the DMCA that is supposed to punish bogus takedowns, that second part very rarely happens. Section 512(f) was supposed to provide a remedy for those who have been harmed by their content being removed. But in the wake of key rulings, most recently Lenz v. Universal, that remedy is rarely available, leaving online speakers everywhere vulnerable to the censoring whims of anyone inclined to send a takedown demand targeting their speech, no matter how unjustifiably, since there is little ability to ever hold this wrongdoer liable for the harm their censorship causes.

And censorship does cause harm. Sometimes the harm that it causes can even be to one's business or livelihood, which can suffer from the interruption of the removed content's availability. Of course, normally when people have had their business or livelihoods messed with, they can sue whomever messed with them. We have lots of laws that address wrongful meddling, including torts like intentional interference with contract or prospective economic advantage, because normally we don't like people having free reign to mess with other people's business.

But most of those tort claims are creatures of state law, and the DMCA is federal law. And the question that was raised by a recent case, Stevens v. Vodka & Milk, LLC, is how state law and federal law interrelate. Per the court: they don't. According to the Southern District of New York court, federal law completely pre-empts state law, leaving the only recourse available for someone who has been hurt by wrongful DMCA takedown notices Section 512(f), the remedy that the DMCA ostensibly enables. Even though that remedy is utterly useless.

Sadly, this court was not the first to reach this conclusion. But that fact does not make the conclusion any less terrible, or any less questionable. It's predicated on the notion of "field pre-emption," "where Congress occupies an entire field." In this case, Congress is the exclusive authority establishing copyright, and so federal law pre-empts state laws on copyright. This pre-emption makes sense, because state law addressing copyright would likely interfere with the federal policy. Yet that's not what these state laws are doing. They aren't trying to establish copyrights or address their scope; they are attempting to speak to what happens in situations where a harm has resulted and no copyright was involved at all.

The court essentially ignores this distinction, asserting that because the DMCA addresses what happens when takedown notices are sent without there being a valid copyright claim, it is the final word on remediating the harm the wrongful takedown notices caused. But this reasoning doesn't make sense.

First, the Constitution narrowly prescribes what federal law can do. It can, for instance, create copyrights (pursuant to the Progress Clause), but it doesn't follow that federal law can necessarily operate, much less exclusively operate, where there is no copyright present. Without that copyright there may be no constitutional basis for that federal law to operate at all. But if the court were right, that once the DMCA is merely cited as a basis for a censorship demand, even if invalidly, it is the only law that can address the resulting harm, then that's what the federal law would be doing: operating in a domain where it may no longer have any constitutional entitlement to act. Particularly given that people aren't even supposed to be able to engage the DMCA without that federally-created copyright in the first place, it really doesn't make sense that the DMCA can remain engaged, trumping state law, when it wasn't supposed to be engaged in the first place.

Granted, it might make sense for the DMCA to pre-empt state law when the takedown notice sender has a valid copyright but nonetheless has sent wrongful takedown notices where the targeted use was fair. If state law could punish those takedown notices, it might interfere with the parameters of that federally-created copyright and encroach the "field" of copyright law left exclusively to federal law. But in the absence of a valid copyright, federal law should not be able to extinguish a state-based claim that has nothing to do with the contours of a right that isn't even present.

And the reason federal law should be so limited is because of the abuse we see, where anyone can get away with tortious behavior simply by fraudulently claiming a fictional federal right. A takedown notice sent by someone without a valid copyright is not any more about the "field" of copyright than it is about Santa Claus. Rather, it's about tortiously wrongful behavior. And vindicating injuries caused by such behavior is not something that federal law generally gets to do. That is a power generally left to the states, and the Constitution should not permit a bad actor to escape state law designed to punish this sort of behavior simply because he's fraudulently packaged up his bad acts with a meaningless copyright label federal law does not allow him to use.

Filed Under: bogus takedowns, censorship, copyright, dmca, dmca 512f, pre-emption, takedowns, torts

The Premier League Kindly Requests Google De-List All Of Facebook Over Copyright Infringement Claims

from the like dept

If ever there was a thing that the founding fathers were incapable of foreseeing as they created the foundational law of the United States, certainly that thing must have been how the chief tool used in copyright enforcement has become automated bots used to auto-generate DMCA notices. It's something we, however, have become quite familiar with by necessity, with reports indicating that roughly all of the DMCA takedown or delisting notices received by sites like Google are generated from these bots. Whatever one might think of publishing companies and their policing partners using this tool at all, there is certainly no serious argument to be made that collateral damage from their use isn't a real problem. When public political organizations, streams for awards ceremonies, and even NASA landing on Mars gets flagged by these auto-systems, it's time to admit there is a problem.

But it's a problem not being addressed, it seems. The most recent example of this comes to us from the Premier League, which has long waged an overreaching war on streams of soccer games, and most recently asked Google to please delist all of Facebook as part of it.

This week we stumbled upon a takedown notice that’s clearly not right. The request was sent by NetResult on behalf of the Premier League, and targets a wide variety of sports streaming related sites.

“The reported URLs are offering unauthored live streams of Premier League content,” it reads, listing the homepages of sites such as streamsarena.eu, letsfooty.com, tvlink.in and sportcategory.com.

While targeting the homepages of these sites is already quite broad, it also lists the main Facebook.com URL among the infringing domains, asking Google to remove it from the search engine entirely.

This is the part of the story where we all have a laugh, because Google is of course not going to delist Facebook's homepage over the Premier League's pirate streaming concerns. But this is also the part of the story where I remind those laughing that most sites are not Facebook. Most sites have neither the resources nor the notoriety of the world's most popular social media platform. How many smaller sites and companies have been delisted due to these kinds of errors? There's no way to know, but it's a certainty that the answer to that question is not "zero." Given that reality, why does the use of faulty copyright killbots continue to go on unaddressed?

In situations like this, we can see how easy erroneous takedown claims can easily lead to over-blocking. It’s good to know that, despite receiving millions of requests per day, the search engine is still able to spot most of these flaws. Unfortunately, however, not all mistakes are easily caught, especially when they concern smaller sites.

It's also worth pointing out that Google is not the only search engine or service provider that receives these kinds of erroneous delisting requests. If Google is particularly good about pushing back against this type of thing, and it generally is, that's not the case with other sites and services which might simply comply with the request. This whole copyright enforcement by SkyNET routine relies on a lack of pushback from innocent victims and the public at large. Sure, we still have our Facebook search results in Google, but what don't we have that we don't even realize we're missing?

Filed Under: bogus takedowns, copyright, dmca, takedowns
Companies: facebook, google, premier league

More On IP Arrow: Takedown Company's Boss Owes MPAA $15 Million And Clients Apparently Fine With Filing Bogus DMCA Notices

from the not-surprised,-but-still-disappointed dept

A few more details have been revealed about IP Arrow, the anti-piracy company whose DMCA notices were filled with links to content not owned by the companies it represents, including links to some rather dubious porn titles.

First off, it's hardly a company. IP Arrow is simply an "offshoot" of Morganelli Group LLC, the new home for its non-porn clients, as was pointed out by a commenter over at Torrentfreak.

This new-kid-on-the-block, hired-gun copyright enforcer named "IP arrow" appears to be a sock-puppet shell company owned by Joe Morganelli (Morganelli Group LLC)

Note that their client lists are virtually identical.

It looks like Joe Morganelli has transferred Lynda, Lionsgate, and Zuffa (UFC) to this new label "IP Arrow" while pornography is still carried under the old label "Morganelli Group".

The stats over at Google's Transparency Report bear this out. The last DMCA notice issued for Zuffa, Lynda.com or Lionsgate by Morganelli was on August 1st. Since that point, every DMCA notice issued has been for one company: LFP Video Group LLC. LFP stands for Larry Flynt Productions. IP Arrow's work for Lynda.com, Zuffa and Lionsgate begins on August 5th.

Unlike the shoddy work done for Lynda.com, Zuffa and Lionsgate, Morganelli's work on behalf of the porn publisher seems to be subject to some actual vetting. You can see the difference in the number of URLs taken down. Despite issuing takedowns for LFP at the same frequency as the other three clients, LFP notices have asked for the removal of far fewer URLs.


Even under the previous name, Morganelli's work for his "mainstream" clients was uniformly terrible. Whatever automated program Morganelli's deploying appears to simply sweep up URLs and dump them into a form. It doesn't seem to be able to differentiate sidebar or related search links from the actual URLs linking to infringing copies.

Lynda.com, Zuffa and Lionsgate seem perfectly OK with IP Arrow (and Morganelli) sending out DMCA notices claiming ownership of other companies' content. I contacted all three but only heard back from one: Lynda.com.

On the 19th, I spoke briefly with David Glaubke, Director of Corporate Communications for Lynda.com. He asked what I thought was going on and I told him that it looked like IP Arrow was running a rather lousy bot/crawler and not vetting the results before firing off DMCA notices -- notices that are sworn statements that the company named owns the content listed. And, presumably, Lynda.com was paying IP Arrow to issue false statements in its name.

He assured me that his CTO and IT team were looking into the issue and that he would get back to me with any further comments or statements.

This statement, emailed to me a day after our phone conversation, appears to be Lynda.com's final word on the subject.

lynda.com retains the services of IP Arrow as a part of the company's on-going anti-piracy program to mitigate the illegal download of our intellectual property on torrent sites. On our behalf, IP Arrow issues batch DMCA takedown notifications for links to directories containing our content. Those links often contain keywords designed to drive traffic to adult or illegal material in directories that happen to also contain lynda.com videos. Many of the URLs highlighted in this TechDirt story, implied to be targets of erroneous takedowns, at one time contained our files but no longer do.

That may all be true, but plenty of other anti-piracy companies run automated services and yet, their takedown notices aren't primarily composed of links to content that isn't theirs to take down. Not only that, but Morganelli, who apparently runs IP Arrow, seems to have very little trouble compiling vastly more accurate takedowns for LFP Video.

Why would a content owner be satisfied with service like this? Hopefully, Lynda.com and IP Arrow's other clients aren't being charged per URL. The way IP Arrow's service "works" pretty much guarantees the takedown notices will be completely useless by the time they're processed. This hardly seems like an efficient way to fight piracy.

Then there's this to consider, from the same Torrentfreak commenter.

So why did he do this? [split off Lionsgate, Lynda.com and Zuffa to IP Arrow]

Maybe because Hollywood still remembers Joe Morganelli as the guy they sued nearly a decade ago for running one of the internet's biggest warez sites, and are reluctant to give that copyright criminal any more of their money until he pays up on that multi-million dollar judgment he was slapped with but never paid.

Former pirate goes into the piracy-fighting business, all the while owing the MPAA $15 million. His previous Usenet experience explains his expertise in combating piracy there but, once out of his comfort zone, he seems to be flailing. Here's what he had to say about his Usenet work.

“What my team does is monitor usenet 24/7 using a Bayesian Classifier. We also verify everything 100% to ensure we are making the proper removal requests for the UFC and our other clients,” Joe Morganelli of Morganelli Group LLC told TorrentFreak.

Apparently, this verification process doesn't carry over to his work outside of Usenet. Even if the URLs listed contained links to his clients' content at the time of "discovery," they no longer do at the point the DMCA notice is processed. It's a lazy, stupid way to rack up hundreds of "hits," which IP Arrow can then point to as "evidence" of its thorough work. Let's not forget, one of the takedowns even asked that the search results for the term "rar" be removed.

It's something that's been noted before and seems to still occur with some frequency -- some companies feel piracy is too much of a problem to ignore, but not enough of a problem to put in the hands of someone competent. The only thing this half-assed approach guarantees is that these companies aren't getting what they paid for.

Filed Under: bogus takedowns, copyright, dmca, joe morganelli, takedowns
Companies: ip arrow, lynda.com, mpaa, ufc, zuffa

Putting Together A Database Of Bogus DMCA Takedowns

from the interesting-move dept

Over the years, we've written many, many stories of completely bogus DMCA takedowns. It's a pretty common occurrence. Sometimes it's done accidentally by clueless bots (or clueless humans). Sometimes it's done maliciously. We just had a case that appeared especially egregious, involving a site copying another sites' articles, then claiming copyright over the originals in order to take down the original stories (which just happened to paint a professor in a very poor light for allegedly faking parts of some high profile research). That story inspired David Weekly (founder of PBWiki, HackerDojo, SuperHappyDevHouse and a few other things) to do something: he set up the site DMCAInjury.com, which is just a simple Google spreadsheet input form at this point, but hopefully can become something much more.

David has pointed out that it would be handy to have some more cases in which the filers of bogus DMCA notices are actually punished for their actions under section 512(f) of the DMCA. As we discussed last year, it's very difficult to win a 512(f) claim, in part because the language is so vague and so far courts have interpreted it pretty narrowly.

However, as David points out, there have been some successful cases, including the case that the EFF ran against Diebold nearly a decade ago. David was actually one of the plaintiffs in that case. If you don't remember, someone had leaked some internal documents from Diebold (makers of e-voting machines) which showed the company was well aware of massive security problems with their machines. Diebold first tried to claim the documents were fake and then used the DMCA to claim they were covered by Diebold's copyright and that it could issue takedowns on them. As you might have noticed, those two claims would contradict each other. Either way, a judge pointed out that:

"no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright."

The problem, of course, is that there just aren't that many such cases (there are a few scattered ones, including the Lenz case we've been talking about recently). So finding such cases, and actually having them go to court could be useful -- though I still think strengthening the ability to punish bogus DMCA notices would be helpful (well, and changing the entire DMCA takedown process, but that's another post for another day). Via email, David admits that this is just a "trial balloon" to see if it turns up any interesting cases of bogus takedowns that might make for good 512(f) cases. And that would be good, though the weaknesses of 512(f) still make it pretty difficult to find ideal cases, even as we see DMCA abuses all the time.

Even with that being the case, if this effort doesn't turn up bogus takedown notices for new cases, at the very least, perhaps it will create a useful dataset to explore the nature and frequency of bogus DMCA takedowns.

Filed Under: 512f, bogus takedowns, copyright, dmca, takedowns

Two Copywrongs Don't Make A Right, But We Still Need A Way To Combat False Takedown Notices

from the because-they-wrote-the-laws dept

We've noted plenty of examples of completely bogus takedowns due to copyright claims -- including some pretty serious ones. Over at TorrentFreak, they're asking if such bogus takedowns should be punished in some manner, and they suggest a three strikes system, in which after the third strike, parties are not allowed to file any more takedowns for a month. I'm not sure such a system would really be that productive, but it does seem that something should be done. I know that whenever we talk about bogus takedowns, people point to the "penalty of perjury" language found in DMCA takedown notices. But that's usually a misreading of what the perjury notices actually say. The "penalty of perjury" part only needs to apply to the claim that the party writing the letter is authorized to act on behalf of the rightsholder. That's it. It does not need to apply to the claim that the content is actually infringing, even though most people interpret the notice to read that way. Separately, when the takedowns happen via automated systems like YouTube's ContentID, or via government action, like ICE's domain seizures, the perjury claims have no bearing at all, since they happen outside of the DMCA entirely.

So what can or should be done in those situations? At one point, some Brazilian officials had suggested effectively putting the public domain and fair use on par with copyright -- and thus equalizing the punishments for violating either. There is some poetic justice in such a setup. Given the insanity of today's statutory damages rates (which can lead to up to $150,000 for infringement of a single item), would it be reasonable to then say if you take down something incorrectly, you are opening yourselves up to similar damages?

Defenders of copyright would argue that's way too harsh, though they'd do so without any hint of realization that those penalties are way too harsh for today's infringement as well. Besides, they wouldn't have to worry if they only issue proper takedowns.

Of course, the problem with that is that you're effectively creating a "two wrongs" situation, rather than fixing the bad situation. You could argue that if you set it up so that the two sides had to be in lockstep, then that might actually encourage copyright holders to be more willing to come to the table to reduce statutory damages to more reasonable levels, though this also explains why they'd fight as hard as they could against any such proposal.

In the end, I really don't know what the proper response is -- but it does seem clear that the ability to falsely censor content online, thanks to the DMCA and bogus notices and automated systems, is a real problem that needs to be fixed.

Filed Under: bogus takedowns, dmca, free speech, perjury, punishment, statutory damages, takedowns

Twilight Studio Issues Another Bogus Takedown, But Is Zazzle Partially To Blame?

from the the-plot-thickens dept

Well, this one's weird. We recently wrote about the attempt by Summit Entertainment (the folks behind the Twilight movies) to claim ownership of a date, issuing a takedown notice over a painting by Kelly Howlett because its creation date (and title) matched a Twilight movie release date (seriously). Now, Mary Jo Place (who goes by the handle Mojo) writes to tell us about her own similar and even stranger situation, in which Summit took down some of her Zazzle merchandise because... well... that's anyone's guess.

The work in question is an original painting called "Sheep Are Pretty Stupid", copies of which she was selling on a variety of merchandise through Zazzle. The products, which again have absolutely nothing to do with Twilight, had been up for a few months before she received a notice from Zazzle, telling her they had removed some of them because of a complaint from Summit. Oddly, it was only the iPhone/Pad/Pod cases that were taken down—not the t-shirts or any of the other merch, even though all the items bore identical descriptions:

Sheep Are Pretty Stupid.
Yes, they are, but you don't have to be numbered among them! Mojo suggests you go AGAINST the crowd by buying one of her sheepie shirts. Or mugs. Or, whatever. Several years ago, I decided I wanted to paint my own Christmas card of the whole lion-and-lamb thing, only from a more, uh, realistic perspective. This is the result.

The email from Zazzle also suggested that the problem could be the search tags, but those (again shared identically by all the merchandise) were mojo, crap, craptacular, sheep, lion, and lamb. Nothing there that suggests Twilight either, except possibly crap. Understandably baffled, Mary Jo contacted Zazzle only to receive a condescending canned response informing her of their duty to abide by intellectual property law. She wrote back again, and actually linked to our coverage of the other takedown, but got nothing back. So she started digging, which brought her to Kelly Howlett's Facebook note about her situation, where she saw something interesting in the comments—and this is where things get weird:

Since Mary Jo's items were gone, she couldn't check to see if she was having similar tag problems. Nevertheless she emailed Zazzle again, included screenshots of the comments and suggested that this may be what happened. A little while later, she received another canned response from Zazzle telling her the products had been restored, but still offering no explanation whatsoever.

All this creates one big question: is Zazzle doing some sort of automatic tagging, which is then triggering false takedowns? If so, that's a pretty big mistake by Zazzle—but some cursory Googling and digging through their help forums doesn't reveal any references to an auto-tagging or community tagging system. If any readers are Zazzle users and have experienced something similar, or have any insight into this, please share it, because nobody seems to be able to figure out what's going on.

Filed Under: bogus takedowns, censorship, takedowns, twilight
Companies: summit entertainment, zazzle

Bogus DMCA Takedown Is Not Copyright Infringement And Not Libel

from the keep-sending dept

We've had a few discussions concerning the available damages awards for bogus DMCA takedown notices. Unfortunately, if you've had your content taken down incorrectly, the damages you can get from those who sent the takedown, are greatly limited. This is a big problem, because bogus takedowns are regularly sent for a variety of reasons, including attempts to silence speech and because a copyright holder is taking a machine gun approach to dealing with infringing content. The case that's received the most attention on this has been the Lenz vs. Universal Music case, involving Universal Music's failure to take fair use into account in taking down a short video of a baby dancing to music.

However, Michael Scott points us to Marty Schwimmer's blog post detailing a content creator's attempt to claim a bogus DMCA takedown was both copyright infringement itself as well as libel, two rather interesting legal claims... both of which got dismissed pretty quickly. The case involved Actors' Equity Association (AEA) which apparently has some sort of setup where it has the right to alert YouTube to any videos that violate the copyright of its members. How it knows whether those videos are authorized or not is not at all clear -- and, in this case, AEA screwed up. It issued a takedown on a video that was posted by the copyright holder who was pretty pissed off. AEA apologized, but the guy sued, and beyond just using the DMCA's 512(f) clause on dealing with bogus takedowns, tried some other claims as well -- including the copyright infringement and libel claims mentioned above.

The claim of copyright infringement claim is quite creative. It was based on the fact that copyright gives you the exclusive right to distribute and display your works, and the bogus takedown interfered with those exclusive rights. Of course, there's a pretty big problem with this theory, which the court was quick to point out: just because copyright law gives you that exclusive right, it doesn't mean that everyone has to automatically let you distribute or display your works, which is effectively what the guy was claiming. If this theory won out, then no one could stop someone else from displaying their works or it would be considered copyright infringement. So it's good that the court rejected this. Related to this, the court also rejected the 512(f) claim, by noting that only applies to situations where the takedown issuer had actual knowledge of the fact that the takedown was bogus, which greatly limits its applicability.

The libel claim stems from the idea that he was falsely labeled for infringing copyrights when he had not done so -- and the court ties that to the same 512(f) claim, pointing out that this would only apply if there were actual knowledge that the takedown notice was bogus.

The ruling here certainly makes sense, but still highlights a massive problem with the DMCA -- which is that those issuing takedowns have absolutely no incentive to determine if those takedown notices are valid. This would seem to seriously violate what's supposed to be a fine balance between copyright law and the First Amendment, in that it allows individuals or companies to stifle the speech of others, using the law, even if they're doing so incorrectly. This seems like a massive problem in how the DMCA is constructed.

Filed Under: bogus takedowns, copyright, copyright infringement, dmca, libel, takedowns
Companies: aea

Tough To Punish Those Who File Bogus DMCA Takedowns

from the little-punishment dept

We all know that it's quite common for the DMCA takedown process to be abused to suppress content that the takedown sender did not hold the right to, or which was clearly covered by fair use. Technically, the DMCA has section (f) which makes the notice issuer liable for misrepresentations, and could force them to pay legal fees. But it's difficult to think of many cases where this has been actually used successfully. Often, those caught abusing the DMCA just say "sorry, it was a mistake" and get away with it. Funny, of course, that the same doesn't work in the other direction for those caught infringing on copyrights under the DMCA. Say "sorry, it was a mistake" and you still might owe thousands of dollars.

Eric Goldman highlights a case where an ISP tried to use section (f) to go after a bunch of folks who issued questionable DMCA takedowns that were clearly designed to harass a couple of websites (and, at one point, were used to try to take down the entire ISP). The details are a bit convoluted, but basically, a group of people critical of what was being said on a website issued a series of DMCA takedowns to keep the site down every time it came back up following a counternotice. This seems like a perfect case where the takedown issuers should be hit with sanctions of some sort, but the case was dismissed on procedural grounds instead, which seem to be based on a misunderstanding of the DMCA itself.

But, more important is how this case demonstrates how the DMCA is abused not to prevent copyright infringement, but to try to silence speech that someone doesn't like. We've had plenty of discussions about the conflicts between the First Amendment and copyright law, but here is a case where Congress has made a law that is all too often used to stifle speech.

Filed Under: bogus takedowns, dmca, punishment, takedowns