UPDATED: The True Damage Of An Illegitimate DMCA Takedown Goes Much Further Than Simple 'Inconvenience'

from the we're-done-breaking-your-stuff,-you-can-have-it-back-now dept

Whenever an artist finds their own creations removed by a erroneous DMCA takedown notice, defenders of the system are quick to point out that the collateral damage is minimal and, because the supposedly "offending" post/picture/etc. usually returns to its original place, what's the big deal? It's just an inconvenience and a small price to pay in order for rightsholders to protect their intellectual property.

Slashdot points us to another victim of an erroneous takedown notice, another one of those "so, the guy got his image re-posted -- what's his problem?" situations. Well, as Dave Gorman points out, a DMCA notice takes down a whole lot more than the image specified. First, a little backstory:

In January 2006 I went out for a late night bike ride with my camera and my tripod and returned having snapped several of these letters. I posted them to flickr and added some musings about whether or not the complete alphabet was in the area.

People started leaving comments on the photos saying that they knew where some of the missing letters were and within two days I'd completed the lot. Putting them together in one image like this was the obvious thing to do... so I did it. Individually I don't think the pictures are much cop... but together I think they look quite nice.

The complete set drew thousands of viewers and hundreds of comments as well as being linked to by sites like Boing Boing. It was even cited by Eine's wikipedia page (Ben Eine being the artist who painted the letters). Unfortunately, on February 17th, Flickr deleted Gorman's photo from its servers in response to a DMCA notice. But that's not all that got deleted.

The page it was on disappeared... and with it, all the comments, favourites, and the record of its views disappeared too. That stuff matters only because I'm vain... but every blog that linked to it now has a broken link that goes nowhere and that matters because links are what make the internet the internet. With all those links broken, 6 years worth of photo-sharing has been undone.

Gorman isn't upset with Flickr. Legally, it had no choice. It's only other option is an impossibility: police several million individual uploads and investigate every DMCA notice to ensure its viability. Neither of these are possible for a service of its scale and consequently, illegitimate takedown requests are treated as legitimate. Oddly enough, the same rightsholders who claim that having to file DMCA notices is burdensome are just as swift to dismiss the complaints of those who have been burdened with defending their own creations against a takedown notice.

In the end, Gorman's photo was restored, but not without sustaining a ton of collateral damage, the kind that rarely gets discussed by promoters of the DMCA notice-and-takedown process:

I knew that the copyright for that image was mine, so I got in touch with Yahoo! and worked out how to file a counterclaim. Which means I sent a legal notice - under threat of perjury - asserting that I was the copyright holder and again, Yahoo! has no choice but to follow procedure. They passed my counterclaim on to Wasteland, Inc who then had 14 days to decide if they wanted to continue to fight by sending a court order to restrain me! 14 days later, Yahoo! wrote to me telling me that I could repost the picture.

But reposting it doesn't bring the comments/views/favourites back and nor does it put it back at the same url which would preserve the links. They're all gone for good. The picture's life from January 12 2006 is destroyed... instead it is reborn on March 2, 2012, its history wiped. (At least we share a birthday)

Of additional interest (at least to loyal Techdirt readers who may recall something similar happening a few weeks back), Wasteland, Inc. is a porn production company and is letting a third-party company process their DMCA notices for them. Gorman did some digging into this after being assured by Ben Eine that he didn't file the DMCA.

It seems that Wasteland, Inc. are pornographers (bondage and fetish if you're asking) and they've employed a company called Degban to file copyright complaints on their behalf. They were doing so in January/February 2012... so it seems highly likely that they're somehow responsible for my picture being deleted. (And not just mine... they also filed a copyright complaint against a picture of some canal hardware.)

So I looked up Degban. Their website describes them as a multimedia copyright protection company... and says, "Whether you are a multi national media conglomerate, Community based music label, a University owned publishing house or just an independent multimedia producer, Degban can rescue you from the plague that is Digital content piracy."

Apparently, Degban, much like the now-infamous Armovore, works almost exclusively for porn producers. If this is any indication of where porn IP enforcement is headed, it looks as if anyone posting anything anywhere has a chance of finding themselves at the receiving end of a DMCA notice. Gorman followed up with Degban, hoping to find out why it thought a photo of the alphabet was part of Wasteland's catalog.

Degban make all sorts of spurious blind-them-with-science claims on their website. It's not easy to understand quite what they're claiming because their use of the English language is a bit creative - although it is good to know that their client care team isn't just made of people who are only pleasant - but I think they're claiming that they have some kind of automatic detection software running and an automatic process that then files thousands of takedown notices a day. Or an hour. Or whatever sounds most impressive.

After various dead ends, Gorman managed to get ahold of Degban's CEO and ask him why his pictures were included in this takedown notice. The response doesn't inspire much confidence in this supposed automated service (which would subject the company to perjury charges if the "automated" takedowns are illegitimate):

Hello Dave

I do apologize for the inconvenience, we have been victim of a phishing/hacking attack, which was aimed at reducing our credibility among clients and the public as you can see how, I truly am sorry that you were effected as such, but allow to humbly suggest that you channel a part of your anger at those holier than thou hackers who effect users like yourself by such irresponsible actions

we are working hard to fix the matter, but alas we can not do much as the size of the attack was larger than we could have expected

I am hoping you can manage to get back your traffic and are never affected by such issue ever again

Yours
Taban Panahi
Degban Ltd.

So, as Gorman explains, this "explanation" means one of three things, none of them good.

1.) Degban has no automated system and is instead sending out tons of requests manually (with very little attention being paid to detail) in order to make it appear that it does have an automated process.

2.) Degban has an automated system but it is obviously faulty and running without oversight.

3.) Taban Panahi is telling the truth and content across the web is now subject to malicious takedown notices sent by hackers.

Any way you slice it, it's bad news. Anyone's content can be removed under false pretenses, whether it's actual maliciousness or algorithmic/human error. As the system "works" today, it's open to misuse. And despite claims from proponents of the DMCA process, there's more at stake than simply the single item in question. With one false DMCA notice, the entire history of a popular photo was erased, taking with it the story of how this "alphabet" came to be. The "notice-and-takedown" process is very obviously broken, resulting in the sort of situation Gorman has described.

When you consider the amount of damage that a single mistaken DMCA notice can do, it's amazing that this process is still considered to be "fair" by its users. This is yet another strong argument for a notice-and-notice process in which companies and individuals would have a chance to file a counterclaim before the content is deleted, rather than having to assert their claim post-takedown and be left to clean up the resulting mess.

(Oh, and definitely click through for the whole post. Gorman has rearranged his famous letters into a statement to Degban.)

UPDATE:

Straight from Dave Gorman via Twitter, a little more information on Degban's error ratio and its supposed hacking (and some clarification):

1. Just to clarify: Yahoo!/Flickr told Gorman that he could repost his photo. Flickr did NOT repost it once the takedown was successfully challenged. Gorman had a backup and was able to do so, but not everyone will have a backup of their files, especially if relying on a cloud-type or social service to host their output.

2. According to Degban, its service was hacked and this was responsible for the false DMCA notices. But Degban claims the attack happened on February 29th. Gorman's takedown is dated February 17th. Gorman: "So it's a magic time travelling hack."

3. This Degban DMCA notice lists 82 URLs, 25 of which are for content that doesn't belong to the company named (Switchback Media). So, more than 3 out of every 10 takedowns will affect unrelated content. It looks like the sloppy work of someone relying on a poor search algorithim rather than there being an actual human being double-checking the output. Gorman points out that Degban is most likely looking for content featuring Destiny Dixon and is sweeping up content by Destiny's Child and Alesha Dixon. I'm not sure that I'd be willing to sign something under threat of perjury with only a 70% of being right.

 

 

Filed Under: copyright, dave gorman, dmca, free speech, takedowns
Companies: degban, wasteland