Facebook Fails At The DMCA: Promises To Restore Counter-Noticed Content, But Doesn't [Updated]

from the ah,-censorship dept

We recently wrote about how an ad firm connected to a movie had misused the DMCA to takedown material off a Facebook fan page for the movie Let Me In, specifically claiming that they were doing so because they didn't want too many fans to use that page, rather than the official movie page. Of course, that's not what the DMCA is for. The person who ran the fan page filed a detailed DMCA counternotice, and received the following email from Facebook in response:

We have received your counter-notification. We will replace or cease disabling access to the content at issue between 10 and 14 business days from now unless we receive notice that the complainant has filed legal action against you relating to such content.

This is part of how the DMCA works. If the user files a counternotice, and if the copyright holder does not file a lawsuit within 10 to 14 business days, the service provider can put the works back up. Now, some say that service providers are required to restore the material, while the text of the statute is a bit more ambiguous. In theory, a service provider could opt not to restore the materials for other reasons. However, in this case, none of that matters, as Facebook appears to have promised that it would "replace or cease disabling access" within 10 to 14 business days.

The group's operator notifies me that the counternotice was sent on September 10th. If my calendar math is correct, it should have put the material back on the 30th... and yet, as of today, the content is still disabled, and the group's owner does not know why. No legal action has been filed, and Facebook promised to restore the content, but it has not. Once again, we get an example of how the DMCA's takedown provision is an unconstitutional violation of the First Amendment. A federal law was used to silence speech, and despite following the process to restore the speech and being promised that the speech would be restored, it has not been.

Update: Facebook has responded in the comments, apologized and put the material back. Nice to see. Here was the message:

Thanks for bringing this to our attention. We take the content people post to Facebook seriously. Unfortunately, in this case, we made a mistake and the DMCA counter-notice we received was not processed in the normal course of operations. We will no longer disable access to the material at issue. We encourage the group administrator to re-post the content as they wish. We're sorry for any inconvenience.

Filed Under: dmca, let me in, takedown
Companies: facebook

Movie Producers Want Sole Ownership Of Facebook Fans

from the alternate-destinations dept

chunlou apparently is involved with a Facebook fanpage for the movie Let Me In. For over a year, the fan page has built up a nice collection of photos and videos related to the movie -- much of it created by fans (fanart, parodies, etc.) along with promotional material from the film (trailers and promotional photos released by the studio) which you would think would make the studio happy to see spread. Not so much, apparently. Rather than embracing these fans, Overture Films apparently has freaked out about losing "control" of fans -- and has had a partner issue a takedown notice to Facebook, demanding all of the artwork be taken down as infringing. What's noteworthy is that in the letter itself, the company demanding the takedown, Mammoth Advertising, is pretty upfront that the reason isn't that the works are harming the market for those same works -- but that Overture doesn't want fans going anywhere but its official site to learn about the movie. The key passage in the letter:

"... we fear that they are establishing themselves as an alternate destination and authority for the film. They could post false, misleading, or inappropriate content about the film which would be seen by Facebook users."

Of course, if they posted false or misleading content, then the filmmakers would be able to make claims against them. That they're trying to misuse copyright law to take down such a fan effort seems deeply troubling. It's an abuse of copyright law, which is designed not to prevent someone from potentially doing something "misleading," but supposedly to give the producer a monopoly solely for the purpose of creating the incentive to create the content. Is Overture really suggesting that if this fanpage is allowed to continue it won't have incentive to make movies any more?

There's also a pretty strong case for fair use here again. While I haven't seen the fanart, so that could depend, if we go through the basic four factors test, it's hard to see how any of them side with Overture. The purpose is clearly non-commercial for the creators of the fanpage. The nature of the work is that it's a fanpage, designed to promote the original work and to provide commentary on it. It's not showing the movie itself, but rather promotional clips that were released by the filmmakers to gain interest in the film, so it's not using much of the actual movie. And, the user-generated content sounds at least somewhat transformative (though, again, it would help to actually see what was taken down).

Finally, while the letter accuses the fan page of pulling content off of the official site, chunlou insists that that did not happen, and claims that the official site was way too slow to update, and they usually had the content first. Frankly, the whole thing seems pretty silly. A decade ago, we would hear about movie studios freaking out about fanpages, but it had seemed like most of them had figured out that such things are a good thing. Apparently, some filmmakers aren't quite there yet.

Anyway, we've posted the full takedown letter after the jump, where they admit that they're happy that there is a fan group, but they're afraid too many people will go there. Chunlou has filed a counternotice claiming fair use, so we'll see if Overture takes this any further.

Filed Under: copyright, fanpages, fans, let me in
Companies: facebook, mammoth advertising, overture films