dmca – Techdirt (original) (raw)

YouTube War Crime: Site Takes Down Rifftrax Briefly In A Sort Of Collective Punishment Example

from the collective-punishment dept

Because of the wonderful world in which we live, we get to learn about certain unhappy terms and practices, one of which is the concept of “collective punishment.” As a matter of war, collective punishment is a war crime. The idea is that a belligerent force cannot punish an entire population or group merely for the actions committed by a member or associate of that group. For a real world example, see: Gaza.

Now, spicy headlines aside, YouTube has not committed an actual war crime. However, it appeared to briefly engage in something similar in the digital realm when it went about shutting down the channel for Rifftrax, a spinoff and independently run channel from some veterans of the classic Mystery Science 3000 cast. It appears that the channel was shut down not because of any activity it engaged in on the channel, but rather because of some questionable copyright strikes levied against the channel of its former parent company.

So, to summarize, Rifftrax’s channel was taken down because of some copyright strikes that may or may not be legitimate, but which were also targeting a channel Rifftrax was previously affiliated with, but which it no longer is. So, the sins of one channel resulted in the takedown of another due to an indirect association. Collective punishment.

As you can see from Rifftrax’s statement, it had resigned itself to simply being off YouTube entirely. I’m sure there had been some back and forth with YouTube’s support, but that didn’t seem to result in any progress. It was only when Rifftrax made its public statement and rallied its very passionate fanbase that YouTube managed to realize its error and reinstate the channel.

It’s great that public backlash resulted in justice being done in this instance, but what if we were talking about a channel with much less of a following than Rifftrax? What would have happened then? Would that channel ever have been reinstated? Without the pressure from the public, would YouTube ever have lifted a finger?

While we can’t answer that question definitively, it certainly is certain that this kind of collateral damage occurs far too often on many internet platforms, YouTube especially. And nobody seems to be willing to do anything about it.

Filed Under: copyright, dmca, rifftrax, takedown
Companies: legend, rifftrax, youtube

Appeals Court Rejects DMCA Constitutional Challenge, Because Apparently Fair Use Means Nothing Good Will Ever Be Published

from the first-amendment-takes-a-backseat-again dept

What began as an attempt to challenge the constitutionality of the DMCA’s terrible anticircumvention provision has now backfired. A court ruling will limit our rights to fair use and free expression in favor of Hollywood’s ability to lock stuff down with digital locks.

It’s not great.

I had thought we had gotten past the era when courts would deal with copyright cases by accepting the Hollywood copyright extremist position — that without copyright nothing at all would ever get published — as fact. But the DC Circuit appeals court has done exactly that, in a case that wasn’t even suggesting that copyright should go away, just that fair use should be applied to all of it.

The DC Circuit appeals court has now rejected a challenge to the DMCA’s Section 1201 (the anti-circumvention bit) based on how it suppresses First Amendment-protected speech.

This case goes back a ways. Eight years ago, the EFF filed a lawsuit challenging Section 1201. The lawsuit represented security professor Matthew Green and hardware hacker Bunnie Huang. It said that Section 1201 was chilling their speech in preventing them from doing the kind of work they wanted to do.

A big part of the argument was that even though the government has its ridiculous triennial review process, in which the Librarian of Congress gets to designate specific uses that are exempt from 1201, there is no fair use defense for 1201 violations. And, since the Supreme Court has long argued that fair use is the important “safety valve” that makes copyright law compatible with the First Amendment, the lack of fair use here suggests that 1201 might be unconstitutional.

There was more to the argument, but that was the crux of it. The case has bounced around the courts, with parts of it getting dismissed and parts of it being allowed to proceed.

And that brings us to the ruling last week. The panel from the DC Circuit readily admits that copyright law and the First Amendment are “in tension,” but says they’re mostly in alignment in promoting the creation of new works. It recognizes that fair use has been deemed to be an important safety valve here as well:

That said, to avoid impeding robust expression, courts have long recognized a common-law doctrine of “fair use” that implies an “author’s consent to a reasonable use of his copyrighted works” by other speakers

It also notes that because fair use is judged on a case-by-case basis, it’s often unclear to speakers whether or not they’re truly protected:

Fair use plays a key role in striking a balance between expression and prohibition in copyright law. But because the line between uses that are fair and those that are infringing eludes crisp definition, creators relying on fair use as a defense against claims of copyright infringement inevitably face some uncertainty. Courts determine case by case whether use of a copyrighted work constitutes fair use, sometimes based on subsidiary factual determinations made by juries. See Google LLC v. Oracle Am., Inc., 593 U.S. 1, 23-26 (2021). Indeed, the Supreme Court has described reliance on a “potential fair use defense” as a “roll [of] the dice,” subjecting the user of copyrighted material to a “notoriously fact sensitive” analysis that typically cannot be resolved “without a trial.” Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 275 (2020).

You might think that a statement like this bodes well for the challenge to the law here, in which fair use isn’t even an option. Here, the court is already admitting to the chilling effects of unclear boundaries on fair use:

That uncertainty risks chilling some privileged speech

But, the court then shifts and basically presents Hollywood’s line about the importance of robust copyright protection against the plebes and their fair uses. It explains the history of 1201 (which was demanded by Hollywood in order to support the wider DMCA and its notice-and-takedown provisions). Unsurprisingly, the court leaves out the history, which is that Congress originally rejected the DMCA. This led the copyright maximalists to run to Geneva and get DMCA-like provisions included in an international treaty, so they could run back to Congress and tell them they had to pass the DMCA to “meet their international obligations.” But… details.

From there, we get a bunch of scary quotes from the court, arguing that fair use is not, in fact, protected by the First Amendment:

In plaintiffs’ view, a mismatch in protection for fair use under traditional copyright law and under the DMCA renders the latter unconstitutional. They assert that all fair use is protected by the First Amendment, so section 1201(a) cannot validly prohibit circumvention by individuals for the purpose of making fair use of copyrighted works. And they argue that Congress’s explicit attempt to build fair-use accommodations into section 1201(a) via the triennial rulemaking process merely compounded the First Amendment injury: In its effort to alleviate the Act’s burden on fair users, plaintiffs contend, Congress transformed the Librarian of Congress into a censor who wields broad discretion to grant exemptions to favored messages and speakers.

Key to plaintiffs’ theory is their view that fair use of copyrighted work is necessarily protected by the First Amendment. We later explain why that assumption is erroneous, but it is worth considering at the outset what it would mean for plaintiffs’ theory if true.

Saying that fair use is not protected by the First Amendment… seems problematic. The Supreme Court had made it clear in earlier cases, like Eldred, that other challenges to copyright failed almost entirely because of the existence of fair use. For the DC Circuit to now say that fair use isn’t really about the First Amendment seems to be taking a huge step backwards for free speech.

And to get there, the panel gets a lot of stuff backwards. It suggests that if it were true that such users were fair use, then the triennial review for exemptions would be “redundant” because why would anyone need the exemptions if they were protected by fair use. But that gets everything wrong. First, not all uses exempted under the triennial review would be considered fair use. And, second, the value of the triennial review is it makes it clearer which uses are exempted unlike fair use (as the court has already admitted) which involves having to go through an expensive trial to figure it out.

Bizarrely, the court takes this point to support the argument against fair use. They say that fair use is too risky, but the triennial review is clearer:

An irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself. Recall that the Supreme Court has referred to the use of copyrighted materials under the protection of a “potential fair use defense” as a “roll [of] the dice.”

But that gets it backwards again. The fact that the triennial reviews make some stuff clear, while leaving other uses to be fought out as fair use does not mean that fair use should not apply. Indeed, it seems like an even bigger reason as to why we need fair use.

The court seems wholly confused in suggesting that anyone is arguing that any use for violating 1201 is deemed fair use, which is not something anyone is arguing.

More fundamentally, if appellants were correct that the First Amendment protected circumvention undertaken for fair use ends, then section 1201(a)’s regulatory exemptions would simply serve as an additional layer of protection for fair users, providing up-front confirmation to those fair users who fall within the scope of the exemptions that their circumvention is permitted. What is more, even as to actions not covered by a DMCA statutory or regulatory exemption, under plaintiffs’ view, the filmmaker would have a First Amendment right to circumvent: She would be free to take her chances by circumventing and proving that her use of the clip is fair use and thus constitutionally protected. So it is hard to see how, under plaintiffs’ view of the law, section 1201(a) operates to chill speech.

This makes no sense and seems to fundamentally confuse nearly all of the issues at play here. This is one of the most confused decisions I’ve seen regarding the intersection of the First Amendment and copyright.

From there, the court drifts into copyright maximalist tropes, including the idea that copying is a form of theft:

The “heartland” conduct the anticircumvention and antitrafficking provisions criminalize is piracy of digital property—a modern form of theft.

But, it’s not. Not even remotely. Anticircumvention is just getting around a digital barrier which is not equivalent to “theft” in any sense. It does not lead to anyone “losing” anything they own at all. All it does is allow someone who does possess the work to make use of it.

There are also other oddities:

The First Amendment protects a right to read, but it does not grant unimpeded access to every reading material a reader might wish for. Similarly, the First Amendment does not guarantee potential fair users unfettered or privileged access to copyrighted works they seek to use in their own expression. To hold otherwise would defy the First Amendment’s solicitude of speakers’ control over their own speech. See Harper & Row, 471 U.S. at 559 (noting that copyright serves the First Amendment value of the “right not to speak”).

Yes, the First Amendment includes the right not to speak, but that is not even remotely implicated by saying that fair use is allowed. Fair use does not force someone to speak who doesn’t wish to speak. So this seems wholly unrelated to the issue at hand. Indeed, I’m confused as to how the panel could possibly think that fair use is the equivalent of forcing someone to speak. That shows an extremely problematic understanding of “speaking.”

And then we get into the even more ridiculous and long-disproved tropes: that without strict copyright protection, nothing new would be published.

If every work that the public might wish to access “could be pirated away” via circumvention, soon nothing worth reading would be published electronically.

Someone alert Shakespeare that his works were impossible since they were created in the days before copyright law. There are many non-copyright law business models for which they did not need copyright to produce them. Everything I write here is released into the public domain, yet this court seems to think that’s impossible, and that copyright is the only possible incentive to create something “worth reading.”

But, even more directly, nothing in what this case is arguing says that all access is fair use. I am perplexed at how the court interprets the argument this way. Indeed, much of what the DC Circuit is saying here is an argument against the entire existence of any fair use:

Plaintiffs’ premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements copyright law validly protects. Consumers’ access to copyrighted work routinely requires consent from the copyright owner—typically obtained by paying for access subject to certain limitations on use.

This is just not what’s being argued at all. The argument is that if they meet the qualifications for fair use (i.e., that are adjudicated to be fair use under the four factors test) then they do not need to be licensed. So why is the court treating it like the argument is that everything must automatically be fair use?

The fact that some copyright-covered works are licensed is wholly unrelated to the actual question at play here. The fact that the court doesn’t seem to understand that is scary.

As the EFF notes in their writeup about this ruling, it seems to stem from the faulty belief that copyright is there solely to serve Hollywood’s profit motive.

The upshot of this ruling is that fair use is diminished and put at risk. I imagine we will begin to see more citations to this ruling by copyright maximalists arguing against fair use. The opinion has many quotes that basically pretend that fair use is simply the stripping away of all copyright and leads to the vast destruction of content-producing industries.

It’s a ridiculous ruling that will continue to have a negative impact on speech.

Filed Under: anti-circumvention, bunnie huang, copyright, dc circuit, digital locks, dmca, dmca 1201, drm, fair use, matthew green

RIAA’s Copyright Suit Against Verizon Just The Latest Move By The RIAA To Kick People Off The Internet

from the they-always-hated-the-internet dept

The RIAA just won’t quit in attacking users on the internet and trying to get them banned from using the internet entirely. The latest news is that all the major record labels have sued Verizon for not kicking users the RIAA accuses (but has not litigated) of being infringers off the internet.

But, there’s a long history here that needs to be understood to see why this case is so stupid and so dangerous to the internet.

Twelve years ago, we wrote about a secret plan by the RIAA to pretend that copyright law already required that ISPs shutdown the internet accounts of users caught infringing. The relevant copyright law, DMCA 512, does have an awkwardly worded section on “termination.” Specifically, it says that to be eligible for the DMCA safe harbors, a site:

has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

However, it provides no more guidance about many of the important definitions in there. What is “reasonably implemented?” What is “appropriate circumstances?” What constitutes “repeat infringers?”

While some people claim that the last question, in particular, is easy to determine, it’s not. False claims of copyright infringement are made all the time, as we’ve seen with DMCA claims (or even just YouTube’s ContentID). Sometimes, it’s for anti-competitive purposes. Sometimes it’s just to make life difficult for someone. Often, it’s because automated systems have gone haywire.

The only real way to know if someone is a “repeat infringer” is not based on a claimed copyright holder sending notices, but on a court ruling that an individual infringed on someone’s copyright. A service provider could have actual knowledge of infringement only after it has been adjudicated by a court.

However, some copyright holders disagree.

As is their wont, the RIAA has decided that all of these should be decided in the most extreme way possible, which is that if the RIAA sends a bunch of infringement notices to a service provider, that ISP should kick users off the internet entirely.

There are all sorts of problems with this. First, under the Supreme Court’s Packingham decision, it’s reasonable to argue any law that kicks people off the internet as a requirement is inherently unconstitutional. As Justice Kennedy wrote in that decision, citing Ashcroft v. Free Speech Coalition, “It is well established that, as a general rule, the Government ‘may not suppress lawful speech as the means to suppress unlawful speech.’”

Yet, as we’ve described for decades, when it comes to copyright, the courts show an uncanny willingness to ignore any First Amendment concerns and to give the industry all the power (rather than the public, who copyright law is supposed to benefit).

Given all that, the recording industry sued Cox Communications for failing to “reasonably implement” a policy to “terminate… repeat infringers.” That case was kind of a mess from the very start. It involved a firm, Rightscorp, that was famous for sending piles of questionable infringement notices based on flimsy evidence of infringement. The case ended up before a famously cranky judge, Liam O’Grady, who made it clear that he did not care about the public interest, or even the purpose of the DMCA.

It didn’t help that Cox’s own policies for handling copyright complaints were a bit of a mess, but O’Grady seemed wholly uninterested in the details and nuances and ruled against Cox. The case has bounced around for years, with the 4th Circuit Appeals court occasionally making a mess of things, occasionally fixing small parts of the lower court’s nonsense.

Earlier this year, the 4th Circuit threw out the massive $1 billion award that a jury had given the labels, saying the amount was not justified. But the case is still something of a mess, as Cox still believes (correctly, in my opinion) that it’s not violating the law at all. I believe that next month, both sides are planning to request the Supreme Court take a look. The labels will want the giant damages reinstated, while Cox will be arguing that the entire thing is ridiculous and it did nothing wrong.

Either way, the record labels apparently don’t want to wait for the Supreme Court to sort all this out. They have moved forward with a similar lawsuit against Verizon, one of the country’s largest ISPs, making the same basic arguments. The RIAA is always good about telling narratives:

The scope of repeat infringement on Verizon’s network is staggering. Thousands of Verizon subscribers were the subject of 20 or more notices from Plaintiffs, and more than 500 subscribers were the subject of 100 or more notices. One particularly egregious Verizon subscriber was single-handedly the subject of 4,450 infringement notices from Plaintiffs alone.

Verizon acknowledged that it received these notices of infringement sent by Plaintiffs’ representatives. Yet rather than taking any steps to address its customers’ illegal use of its network, Verizon deliberately chose to ignore Plaintiffs’ notices, willfully blinding itself to that information and prioritizing its own profits over its legal obligations.

It is well-established law that if a party materially assists someone it knows is engaging in copyright infringement, that party is fully liable for the infringement as if it had infringed directly. Further, when a party has a direct financial interest in the infringing activity, and the right and practical ability to stop or limit it, that party also faces liability. Flouting those basic responsibilities, Verizon deliberately turned a blind eye to its subscribers’ infringement. Verizon failed to terminate or otherwise take any meaningful action against the accounts of repeat infringers of which it was aware. Instead, Verizon routinely thumbed its nose at Plaintiffs by continuing to provide its service to subscribers it knew to be serially infringing Plaintiffs’ copyrighted sound recordings. In reality, Verizon operated its service as an attractive tool and safe haven for infringement.

And, so, of course, many of the headlines will be about that kind of narrative.

But, as always, it’s way more complicated than that. Just because someone sends notices does not mean that infringement has actually happened. I mean, this is the RIAA we’re talking about, and they have a bit of a history of sending trash, bogus DMCA notices. Or, a history of suing over songs it doesn’t hold the copyright on. Or on making totally baseless accusations about copyright infringement based on whims.

It’s only natural for a company like Verizon to choose to view RIAA notices with suspicion and not immediately assume they’re proof of infringement.

Anyway, given the status of the Cox fight and the decent chance the Supreme Court will take that issue up (not guaranteed, of course, but it wouldn’t be surprising), this case might end up sitting around while we wait for the Supreme Court to (hopefully, but unlikely) get these issues sorted out in that case first.

Either way, the RIAA is up to their usual anti-internet tricks. While they frame it as Verizon somehow ignoring notices, don’t believe that narrative. This is about the RIAA overclaiming copyright powers and trying to get people kicked off their entire internet connection (which is so necessary these days) for daring to download some songs.

Filed Under: copyright, dmca, isps, repeat infringer, termination policy
Companies: cox, riaa, sony, sony bmg, umg, universal music group, verizon

Two Decades Of Content In ‘Garry’s Mod’ Taken Down, Possibly By Nintendo Impersonator

from the nintendon't dept

The capricious nature of Nintendo’s IP enforcement practices are, if you’re a regular reader here, quite legendary. In this case, however, it seems like Nintendo’s reputation is what played a part in some copyright fuckery, rather than the company engaging in said fuckery itself.

If you’re not familiar with Garry’s Mod, then you obviously weren’t much of a gamer in the mid-2000s. Built off of Valve’s Source engine, the “game” is essentially a sandbox game with all of the physics of the engine, but in an open “world” in which players can more or less do whatever they want. It also allows for all kinds of user-created mods and content to be added. And, because Nintendo was and remains quite popular with a sizable segment of the gaming population, some of that user generated content created over the past roughly two decades included content and characters from Nintendo games.

The past tense in that sentence being important here, given that it was only recently that Kotaku reported that Nintendo demanded and got all of that content yanked down from the game entirely.

In an update to Garry’s Mod’s Steam page, the developers stated, “Some of you may have noticed that certain Nintendo related workshop items have recently been taken down. This is not a mistake, the takedowns came from Nintendo.”

The update continues, “Honestly, this is fair enough. This is Nintendo’s content and what they allow and don’t allow is up to them. They don’t want you playing with that stuff in Garry’s Mod – that’s their decision, we have to respect that and take down as much as we can.”

So why would Nintendo do this now, after years and years of the content in question existing? It obviously cannot be that Nintendo is suffering some form of irreparable harm due to its own fans having fun creating Nintendo-y things within Garry’s Mod. Were that the case, surely all that harm would have come to Nintendo’s attention somewhere over the course of the last eighteen-plus years. But for all that time, Nintendo was silent.

And, it appears, Nintendo has remained silent. Truth be told, there existed a version of this post taking Nintendo to task for being a bunch of nonsensical copyright assbags. That post has since been rewritten into this one, however, after we noticed some interesting contributions from our awesome community on our Techdirt Insider Discord channel.

Brewster T. Koopa was one of the modders who had content removed from Garry’s Mod. They were adamant from the jump that it was unlikely Nintendo was actually behind the takedowns, based mostly on the above timeline. Then came the answer, with a screenshot from another person explaining just what happened.

We’ve seen this sort of thing before. And, frankly, the story here is the same as it was in that previous case with Bungie. The reason these bad actors are able to pull this sort of crap is due to two things. First, and least important, is Nintendo and Bungie’s reputations for being absolutely draconian when it comes to copyright enforcement. That’s something fairly close to victim blaming in this instance, to be sure, but it’s hard to imagine someone being able to pull this off with a CD Projekt Red or a company with a reputation for being more lenient on copyright matters.

But the real culprit here is Valve’s DMCA review process. If some folks on the internet can figure out in fairly short order that these takedowns are coming from an email address and domain that are not actually owned by or associated with Nintendo, then someone on Valve’s end could have figured this out as well. Instead, the content just came down. And if we’re going to have a DMCA process that looks anything remotely like it does today, that’s a pretty damned big problem. Collateral damage when it comes to matters of speech are simply not acceptable.

So, Valve needs to do better. And, sure, it would be nice if Nintendo turned over a new leaf and was better on copyright matters generally, but the company in this case was also something of a victim here.

Filed Under: copyright, dmca, garry's mod, steam
Companies: nintendo, valve

When You Need To Post A Lengthy Legal Disclaimer With Your Parody Song, You Know Copyright Is Broken

from the i-got-99-problems,-and-copyright-is-absolutely-one dept

In a world where copyright law has run amok, even creating a silly parody song now requires a massive legal disclaimer to avoid getting sued. That’s the absurd reality we live in, as highlighted by the brilliant musical parody project “There I Ruined It.”

Musician Dustin Ballard creates hilarious videos, some of which reimagine popular songs in the style of wildly different artists, like Simon & Garfunkel singing “Baby Got Back” or the Beach Boys covering Jay-Z’s “99 Problems.” He appears to create the music himself, including singing the vocals, but uses an AI tool to adjust the vocal styles to match the artist he’s trying to parody. The results are comedic gold. However, Ballard felt the need to plaster his latest video with paragraphs of dense legalese just to avoid frivolous copyright strikes.

When our intellectual property system is so broken that it stifles obvious works of parody and creative expression, something has gone very wrong. Comedy and commentary are core parts of free speech, but overzealous copyright law is allowing corporations to censor first and ask questions later. And that’s no laughing matter.

If you haven’t yet watched the video above (and I promise you, it is totally worth it to watch), the last 15 seconds involve this long scrolling copyright disclaimer. It is apparently targeted at the likely mythical YouTube employee who might read it in assessing whether or not the song is protected speech under fair use.

And here’s a transcript:

The preceding was a work of parody which comments on the perceived misogynistic lyrical similarities between artists of two different eras: the Beach Boys and Jay-Z (Shawn Corey Carter). In the United States, parody is protected by the First Amendment under the Fair Use exception, which is governed by the factors enumerated in section 107 of the Copyright Act. This doctrine provides an affirmative defense for unauthorized uses that would otherwise amount to copyright infringement. Parody aside, copyrights generally expire 95 years after publication, so if you are reading this in the 22nd century, please disregard.

Anyhoo, in the unlikely event that an actual YouTube employee sees this, I’d be happy to sit down over coffee and talk about parody law. In Campell v. Acuff-Rose Music Inc, for example, the U.S. Supreme Court allowed for 2 Live Crew to borrow from Roy Orbison’s “Pretty Woman” on grounds of parody. I would have loved to be a fly on the wall when the justices reviewed those filthy lyrics! All this to say, please spare me the trouble of attempting to dispute yet another frivolous copyright claim from my old pals at Universal Music Group, who continue to collect the majority of this channel’s revenue. You’re ruining parody for everyone.

In 2024, you shouldn’t need to have a law degree to post a humorous parody song.

But, that is the way of the world today. The combination of the DMCA’s “take this down or else” and YouTube’s willingness to cater to big entertainment companies with the way ContentID works allows bogus copyright claims to have a real impact in all sorts of awful ways.

We’ve said it before: copyright remains the one tool that allows for the censorship of content, but it’s supposed to only be applied to situations of actual infringement. But because Congress and the courts have decided that copyright is in some sort of weird First Amendment free zone, it allows for the removal of content before there is any adjudication of whether or not the content is actually infringing.

And that has been a real loss to culture. There’s a reason we have fair use. There’s a reason we allow people to create parodies. It’s because it adds to and improves our cultural heritage. The video above (assuming it’s still available) is an astoundingly wonderful cultural artifact. But it’s one that is greatly at risk due to abusive copyright claims.

Let’s also take this one step further. Tennessee just recently passed a new law, the ELVIS Act (Ensuring Likeness Voice and Image Security Act). This law expands the already problematic space of publicity rights based on a nonsense moral panic about AI and deepfakes. Because there’s an irrational (and mostly silly) fear of people taking the voice and likeness of musicians, this law broadly outlaws that.

While the ELVIS Act has an exemption for works deemed to be “fair use,” as with the rest of the discussion above, copyright law today seems to (incorrectly, in my opinion) take a “guilty until proven innocent” approach to copyright and fair use. That is, everything is set up to assume it’s infringing unless you can convince a court that it’s fair use, and that leads to all sorts of censorship.

So even if I think the video above is obviously fair use, if the Beach Boys decided to try to make use of the ELVIS Act to go after “There I Ruined It,” would it actually even be worth it for them to defend the case? Most likely not.

And thus, another important avenue and marker of culture gets shut down. All in the name of what? Some weird, overly censorial belief in “control” over cultural works that are supposed to be spread far and wide, because that’s how culture becomes culture.

I hope that Ballard is able to continue making these lovely parodies and that they are able to be shared freely and widely. But just the fact that he felt it necessary to add that long disclaimer at the end really highlights just how stupid copyright has become and how much it is limiting and distorting culture.

You shouldn’t need a legal disclaimer just to create culture.

Filed Under: contentid, copyright, dmca, dustin ballard, fair use, parody, there i ruined it
Companies: youtube

Bungie, YouTuber Settle Lawsuit Over Fraudulent DMCA Takedowns For YouTube Videos

from the takedown-shakedown dept

Almost exactly two years ago, we discussed a strange story in which video game publisher Bungie sued a bunch of John Does specifically for inputting fraudulent DMCA takedown claims on YouTube videos that contained Bungie content. Those notices purported to be from Bungie in some cases, but even Bungie’s own YouTube channel was hit by some of them as well. Later on, Bungie unmasked one of the Does as YouTuber Lord Nazo, real name Nicholas Minor, as one of the perpetrators of these takedown notices. In those discussions, we mentioned that while Bungie will come out looking like the good guy here if its claims were correct, the real story here is just how wide open for abuse YouTube’s DMCA takedown process is.

Well, it was recently announced that Bungie and Minor settled the lawsuit and Minor revealed why he had done all of this.

In a dramatic turn of events, the legal battle between gaming giant Bungie Inc. and online gamer Nicholas Minor, famously known as Lord Nazo, has reached a surprising conclusion. After accusations of false copyright infringement, the two parties have finally settled, bringing an end to the intense courtroom drama that has captivated the gaming community.

During the legal proceedings, Minor admitted to creating a phony email address and submitting the video removal requests. His actions were reportedly motivated by a desire to highlight the lack of transparency in YouTube’s takedown process, following the removal of one of his own videos. This revelation added a layer of complexity to the case, shedding light on the broader issues surrounding online content moderation.

Minor’s actions can’t be justified by this motivation, of course, but it’s hard to argue he didn’t effectively make his point with all of this. Sure, he got caught and ostensibly is going to suffer some measure of punishment for his actions, but that’s because Bungie was his target and Bungie has the resources to force this sort of action. Think about all the other individual or smaller entities out there that suffer from these same fraudulent-type actions that don’t have the resources to fight back, or don’t want to bother doing so. In those cases the bad actors get away with their bad actions and none of us ever even hear about it.

Even for those larger entities, navigating all of this isn’t easy.

Bungie’s lawsuit underscored the challenges faced by content creators and gaming companies in navigating the intricacies of copyright law and online platforms’ policies. The false infringement complaints not only disrupted Bungie’s community of online gamers but also prompted a reevaluation of YouTube’s takedown procedures. The resolution of this case may set a precedent for future disputes involving copyright infringement and online content moderation.

And to its credit, Bungie said at the start of its legal action that YouTube’s DMCA process doesn’t sufficiently protect for this kind of fraudulent behavior. I have yet to hear of any massive changes made by YouTube as a result of this instance and others like it.

So for today, the status quo remains. But it certainly shouldn’t long term.

Filed Under: copyfraud, copyright, dmca, lord nazo, nicholas minor
Companies: bungie, youtube

Site That Listed Information About 3rd Party Pokémon Fan-Games Shuts Down Under Threat

from the fuck-the-fans dept

The battle The Pokémon Co. decided to wage against its own best fans in the form of DMCA takedowns on video game mods and fan-created content has now escalated into a full-blown war. This has all the hallmarks of Nintendo’s anti-emulation war from a few years ago, except this probably makes even less sense than did that whole thing. As of late, The Pokémon Co. has been on a DMCA blitz for all kinds of content, including mere video content from nearly a decade ago showing mods injecting Pokémon content into 3rd party games. If you’re wondering why the company is bothering with any of this, given the prevalence of these sorts of mods for all kinds of content out there, well, welcome to the damned club.

And yet the war continues. And the latest victim in all of this is Relic Castle, a site that has been shut down under threat from the Pokémon people, even though the site doesn’t host any actual infringing content directly. Instead, the site was designed to be a discussion forum about Pokémon fan-made games, and where some of those discussions included links to other websites where those fan-games were hosted.

Relic Castle was set up in 2014 as an online forum where people could talk about Pokémon fan games, and could also share links to download these games from third-party websites. Relic Castle never hosted any of these files directly; instead, fan games using a mix of new and old assets were often downloaded from places like Mediafire and Google Drive. The forums were just a convenient hub for links and gave the community a place to discuss Pokémon fan games. However, it’s all gone now.

On March 21, the Relic Castle Twitter account posted a message stating that the site had been shut down “following a DMCA takedown notice.” Relic Castle did not confirm who sent the notice.

I’m trying to imagine a world in which it wasn’t The Pokémon Co. that issued this DMCA takedown notice, but I’m simply not creative enough to get there. While I’ll reiterate again that Relic Castle did not host any infringing material itself, here we see the downstream effects of the Grokster ruling, in which a site can potentially be liable for copyright infringement if it is deemed to have taken any affirmative steps to induce or encourage infringement. That makes a site that would otherwise plainly be hosting nothing more than protected speech suddenly liable for the actions its users take if they include posting links to infringing content where the site is seen as encouraging such behavior.

And lost in all of this is one simple fact: the folks who make up the usership of Relic Castle are by and large huge Pokémon fans! You don’t become a member of a Pokémon fan-game site if you aren’t absolutely into Pokémon. And you aren’t absolutely into Pokémon if you haven’t spent some amount of money on some amount of legitimate Pokémon products somewhere. In other words, the Pokémon Co. found a forum site where fans were discussing one of the many aspects of their fandom… and shut that shit down. Fun, as it turns out, isn’t something the company appreciates you having.

And while we don’t know for sure at the time of this writing that the company is the one behind the DMCA takedown, the trendline from the company is certainly suggestive.

This is just the latest salvo in the war against Pokémon mods and fan content. Recently, a seven-year-old YouTube video featuring modded Pokémon in Call of Duty was taken down, too. Some fear The Pokémon Company and Nintendo—spurred by the success of Palworld aka Pokémon with Guns—might be cracking down on content that might have been able to fly under the radar before. For now, we don’t know who ordered Relic Castle to be shut down, but for Pokémon content creators and modders, it doesn’t matter. Things are looking riskier than ever for them.

Put another way, it’s never been riskier for some of Pokémon’s biggest fans to know if expressing their fandom will get them in trouble. Is that really what the company wants?

Filed Under: copyright, dmca, fan games, relic castle, takedowns
Companies: pokemon company

Pokémon Co. Is Now DMCAing Years Old Videos Showing Pokémon Modded Into Other Games

from the DMCA-i-choose-you! dept

The war on video game mods that involve Pokémon continues! I can’t say for sure that the Pokémon Company’s renewed focus on taking down anything relating to these mods for 3rd party video games was kickstarted by the release of Palworld, sometimes pitched as “Pokémon with guns”, and a mod for the game that put actual Pokémon into the game, but it sure feels that way. Even before the game’s release, of course, the company has always acted as a jealous protector of anything related to its intellectual property, even as it has had no issues with using the work of others itself.

And now that renewed focus appears to be going to ridiculous lengths. YouTuber NoahJ456 noted on ExTwitter that a video of his featuring a Call of Duty mod that put Pokémon in the game seven years ago was recently DMCAd by The Pokémon Co.

NoahJ456, who has 5.21 million subscribers on YouTube, tweeted a warning to other content creators, advising that if their videos feature any sort of modded Pokémon content, “I would delete/unlist it ASAP.”

Tweeting a picture of the notice from YouTube, NoahJ456 said: “Just got a manual strike for a video I made seven years ago featuring Pokémon modded into COD Zombies. Two more strikes and my channel gets deleted.”

Now, as I am always willing to say, the company is within its rights here. It can issue these takedowns, given the use of Pokémon IP in these videos and mods. But as I also always say, the company doesn’t have to do this. There are all kinds of video game mods out there that have a lot of fun by injecting third-party characters and content into other games. And yet, despite the fact that all these mods exist without being taken down, the world still somehow manages to spin on its proper axle.

And I’m not the only one that thinks the Palworld mod is what set all of this off. Hell, even the creator of that mod, going by the handle Toasted Shoes, publicly stated that they felt responsible for this particular takedown.

“I didn’t think they’d go scorched earth and I certainly didn’t think it would lead to a chain reaction of them punishing @NoahJ456 and every other creator. I am truly sorry that me being reckless may have played some part.

“Crazy that it took a month to go after everyone else but it seems they now have their sights set on other creators.”

It sure does, which is a very shitty look for The Pokémon Co. These are fans of the company’s content that are looking to have a little fun within other games by injecting the Pokémon content they enjoy into them. This is the spread of fandom and culture at work and I can’t for the life of me even imagine how it represents any kind of threat to The Pokémon Co. or its bottom line.

But fun isn’t allowed if it is also a transgression on corporate control, it seems. What a lesson for youngsters out there when it comes to exactly what this company is all about.

Filed Under: copyright, dmca, mods, pokemon go
Companies: pokemon

ExTwitter Mostly Wins Silly Music Copyright Lawsuit

from the substantial-non-infringing-uses dept

Last year, we wrote about a very silly lawsuit that some big music publishers had filed against ExTwitter, making some silly claims about how copyright law works. It basically ignored the existence of the DMCA, which was designed to prevent lawsuits like this one, where there is some infringement happening on the platform, but no realistic way for a website to police it, because it can’t know what is and is not infringing. That’s why the DMCA created a whole notice and takedown setup. This lawsuit seemed to basically ignore all that.

That’s part of the reason we thought that ExTwitter’s motion to dismiss was very strong and hoped it would carry the day. It turns out that it mostly did. A part of one claim survives, which ExTwitter should be able to get dismissed at the summary judgment stage if the company didn’t do something very, very stupid (which, these days, is no guarantee). But, on the whole, this is a good ruling for not just ExTwitter, but against dumb copyright lawsuits which have been back on the rise of late.

The ruling is pretty straightforward, dismissing most of the really silly claims from the publishers. The judge understood the basic DMCA issues, noting right up front that the DMCA creates a framework for sites to host user-generated content, without being held liable for infringement by users so long as they comply with the safe harbor requirements in the DMCA. But the music publishers are trying to get around that by claiming that ExTwitter can still be held liable by encouraging infringement.

As with so many copyright cases these days, there are different issues regarding whether or not the defendant engaged in direct infringement, contributory infringement, and/or vicarious infringement (which is often confused with contributory infringement, even by lawyers). Here the judge notes that the music publishers’ arguments on all three types of infringement are pretty flawed.

On direct infringement, it should be a very, very easy call, since it’s not ExTwitter itself that is uploading infringing videos. But the music publishers made use of the giant copyright mess created by the Supreme Court in the Aereo case a decade ago to argue that the Aereo “looks like a duck” test should magically apply here. They argued that ExTwitter was a type of broadcaster “transmitting” the infringing works, similar to Aereo’s rebroadcasting of TV channels. Thankfully, the judge is quick to see that the Aereo case was very, very different:

The plaintiffs argue that their theory of direct infringement falls squarely within Aereo, but it is hard to see how that could be the case. These plaintiffs’ allegations, in contrast with the bilateral transmission relationship at issue in Aereo, require the court to consider the respective roles of three parties: one who sent protected material, one who received it, and a third party, X Corp., that continuously operated the platform through which that infringement—and numerous other, non-infringing communications—occurred. X/Twitter, unlike Aereo, did not “transmit” any of the allegedly infringing material in the manner of a cable provider, because it was not the party that initially diverted that material from the intended channels of distribution. X/Twitter was more like a telephone company—providing the mechanism for communication between independent communicators—than like a cable company that actively selects material to make available. The purpose of the Transmit Clause, the Supreme Court acknowledged, was to “erase[] the . . . line between broadcaster and viewer,” but X/Twitter was neither of those things….

(Before anyone gets too hyped up about the comparison to telecom providers and phrases in here that sound common carrier-like, this is in a wholly different context — just looking at the copyright liability question, not everything else).

The Aereo majority, moreover, specifically acknowledged that “Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies.” Id. at 449. The Court stressed that it did not intend its “limited holding” to “have that effect.” Id. That unintended effect, however, is exactly what the plaintiffs would have this court endorse. There is no plausible case that X/Twitter is the “equivalent” of a cable company in the manner that Aereo—which had no meaningful existence other than as a copyright workaround for television broadcasts—was. The Aereo majority explained that it was not trying to “answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before” it, and that is how the court will construe its holding.

And thus, without anything clear linking ExTwitter to the direct transmission, the direct infringement falls:

As the Supreme Court explained in Aereo, the Transmit Clause was adopted with the specific purpose of ensuring that both the “broadcaster” and the “viewer” of an audiovisual work could, where appropriate, be held liable for direct infringement of the type involved in the tr.ansmission of broadcast television through cable systems. Aereo, 573 U.S. at 441. That purpose is consistent with the conclusion that “transmission” refers to the actions of the sender and/or ultimate recipient of a copyright-protected work—not those of the operators of the channels through which that transmission was accomplished. Claims against such a third party continue to be appropriate for consideration in connection with theories of secondary liability, not direct infringement. The court, accordingly, will dismiss Count I.

Next up is contributory infringement, which is where all the major action in copyright cases these days seems to live. Here, the judge is also not entirely impressed with the music publishers’ arguments, but does allow a small part of the claim to live on.

The concept of contributory infringement is a Supreme Court-invented concept, where they came up with an “inducement” standard found nowhere in copyright law itself, but which they felt was necessary to kill file sharing apps such as Grokster. In short, even if the app isn’t directly infringing, if it’s somehow taking proactive steps to encourage others to infringe, that can be seen as contributory infringement.

The problem here is that the music publishers claim that ExTwitter is engaging in contributory infringement just by existing and allowing people to upload music. If that were true, the entire DMCA notice-and-takedown procedure would be obsolete and dead. The judge is not generally impressed:

The plaintiffs, however, have not identified any caselaw or statutory law suggesting that merely hosting infringing content, until it is subject to a takedown notice, constitutes “materially contributing” to infringement under current law. Nor do the plaintiffs identify any authority that would support an argument that the operator of a social media platform materially contributes to infringement simply because there are some preventive steps that the operator could have taken but did not.

Even more to the point, the judge says setting up generally useful tools that might also be used for infringement is, in no way, indicative of contributory infringement:

Insofar as the plaintiffs are seeking to pursue a broad theory that X Corp. is liable for all of the infringement done on its platform because it has, in effect, created a straightforward, intentional infringement facilitation device, like the peer-to-peer filesharing applications that led to Grokster and similar litigation, the plaintiffs have failed to allege that theory in a manner consistent with either Grokster or the general law of secondary liability. Many of the supposedly problematic practices that the plaintiffs identify are unremarkable features of X/Twitter generally that X Corp. has simply failed to fence off completely from infringers. For example, while the plaintiffs make much of X/Twitter’s monetization of infringing tweets by surrounding them with paid-for promoted material, there is no allegation that those practices were meaningfully different than those X/Twitter applied to monetize popular, but entirely non-infringing, tweets. The plaintiffs complain that it is too easy to upload infringing audiovisual files onto X/Twitter, but, again, the plaintiffs are simply discussing a general feature of the platform. They do not allege that it is easier to post an infringing file than a non-infringing one. Any feature that makes a service easier for all of its users will, by definition, also make the service easier for bad actors. The plaintiffs have not identified any basis for concluding that X Corp. was obligated to make its service worse for everyone, just to punish the people who misuse it.

That final line is a good one.

That said, the judge does not dismiss this entire claim, leaving until later a few specific actions that ExTwitter is accused of, which might cause it problems if the company actually did some stupid stuff. If ExTwitter handled these situations in the way that most thoughtful user-generated content companies would handle it, with competent policies and lawyers, then ExTwitter won’t have a problem. Of course, this is Elon Musk’s company we’re talking about, so there’s no guarantee that they did the right thing. But we’re going to find out.

First up: did ExTwitter allow paying users to infringe more? If so, that could be trouble for the company:

The plaintiffs’ discrete allegations regarding some specific practices, however, much more plausibly fall into the category of materially contributing to infringement. Particularly striking is the allegation that X Corp. enforces its copyright policies less stringently against individuals willing to pay for its “verified” service. If X Corp. truly did allow some users to effectively purchase the right to be able to infringe with less severe consequences, then that was plausibly an instance of “promoting” X/Twitter’s “use to infringe copyright, as shown by . . . affirmative steps taken to foster infringement,” which Grokster acknowledged as a sufficient basis for liability.

This is the kind of thing that a well-run company would have documentation on to show that it’s just not true. Hopefully that’s the case with ExTwitter. Assuming the company still has competent policies on this stuff in place, they should be able to demonstrate that during discovery. If they do, however, treat paying customers differently for handling copyright takedown than… holy shit would that be stupid. I guess we’ll find out.

Second: was the company deliberately delaying responses to DMCA notices? This one’s trickier, because there’s no defined period of time in which a website has to respond, but anything that indicates they slow walked things could be trouble.

Similarly, if X Corp. engaged in egregious delays in responding to valid takedown notices, or outright ignored some notices that were both facially and actually valid, that could support liability. The plaintiffs have not identified any basis for concluding that X Corp. had an obligation to respond to notices of infringement either blindly or instantaneously. In fact, a company that instantly complied with every takedown notice filed, without scrutinizing it at all, would run the risk of enabling abusive, anticompetitive takedown practices—a danger that the DMCA itself acknowledges. See 17 U.S.C. § 512(f) (creating liability for some abusive takedown practices). The fact that some delay may be appropriate, however, is not an unlimited license to drag one’s feet inordinately or forever. If, in fact, X Corp. allowed delays to extend beyond what was reasonably necessary to process takedown requests, in order to make the platform a more attractive tool to infringers, that improper extension of delays would plausibly amount to “purposeful, culpable . . . conduct” intended to enable infringement, capable of supporting secondary liability.

Again, a well-run company would have the documentation necessary to debunk these claims. Does ExTwitter? ¯\_(ツ)_/¯ We’ll find out.

Finally, in the contributory infringement space, there’s the question of whether or not ExTwitter has a functioning repeat infringer policy. Again, if the company does (and it used to…), it should be able to cough up evidence to that effect:

Finally, the plaintiffs have plausibly alleged that X Corp. engaged in contributory infringement by failing to take meaningful steps to address the actions of severe serial infringers. Nothing in the Complaint is sufficient to plausibly suggest that a social media platform like X/Twitter has an obligation to suspend or terminate the account of every person who infringes more than once, or even every user who infringes a number of times. Like delays, however, recidivism can exist in degrees. The plaintiffs have alleged that there was an identifiable subset of X/Twitter users who openly and obviously used the service as a tool for repeatedly posting infringing content, but X Corp. affirmatively declined to take reasonable steps in response to those users’ actions. Again, there is no basis in the law for concluding that the operator of a social media platform will face liability simply because it was less draconian in its enforcement than copyright holders would prefer. If, however, there was a class of X/Twitter users who were brazenly using the platform as an infringement tool, and X Corp. made the decision to unreasonably withhold enforcement of its own policies against those users, with the foreseeable consequence of ongoing infringement, then X Corp. could plausibly be held contributorily liable.

So those bits of possible contributory infringement live on. This means that there will likely be discovery on those issues. If ExTwitter produces evidence that the claims by the publishers are hogwash and they do handle all those things appropriately, the company will likely move for summary judgment and win. If the company under Musk has done something very, very stupid regarding copyright enforcement, then… the company would probably be wise to settle and get the case off the books.

As for the vicarious infringement claim, it’s amazing to me how copyright holders always claim vicarious infringement, and we almost always find out it’s not vicarious infringement. It’s becoming the RICO of secondary infringement claims.

To vicariously infringe, it has to be shown that the website is directly profiting off of the infringement (not just general usage) and, because of that, fails to take steps to prevent it. But you can’t just find some infringement on a platform and say it’s vicarious. However, that’s more or less what the publishers did here. The court is not impressed.

The Supreme Court has recognized, however, that the Copyright Act does not require the seller of a useful, lawful product to scrap its entire business just to spite infringers. The Court faced that very dilemma in connection with the rise of videocassette recorders—that is, VCRs—in 1994, and it held that vicarious liability does not arise merely because a company “sold [a product] with constructive knowledge of the fact that [its] customers may use that [product] to make unauthorized copies of copyrighted material.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. at 439. When the caselaw involving vicarious infringement discusses a defendant’s “right to stop or limit” infringement, then, it means something more than simply the right to refuse to distribute one’s product to possible infringers.

The court notes that most vicarious infringement situations involve cases where an employee or an “agent” of the company is engaging in infringement to the benefit of the company. And there’s no evidence of that here. Indeed, the court basically says that the publishers are sort of pleading contributory infringement factors and claiming they’re also vicarious. But they’re not. So those claims are tossed as well:

X Corp. undoubtedly had some power over X/Twitter’s users—the way that a company that provides a valued service always has power over the customers who rely on it—but that does not turn customers into even loose equivalents of agents or subordinates. See Music Force, LLC v. Sony Music Holdings Inc., No. CV 19-6430 FMO (RAOx), 2020 WL 5733258, at *3 (C.D. Cal. Aug. 12, 2020) (“[T]he right to terminate services or a contract with an infringer does not amount ‘to a right and ability to supervise the infringing conduct.’”) (quoting Routt v. Amazon.com, Inc., 584 F. App’x 713, 715 (9th Cir. 2014)). As with the issue of direct infringement, the plaintiffs are trying to force X Corp’s actions into a category not intended to account for the actual character of the relationships at issue, when there is a tool—the doctrine of contributory infringement— uniquely suited to the job.

And that’s it. Basically all three theories by the publishers are flawed. A few small parts of the contributory claims live on, but should be easily disposed of as long as Elon didn’t do something stupid.

Filed Under: contributory infringement, copyright, direct infringement, dmca, music publishers, vicarious infringement
Companies: concord music, nmpa, twitter, x

Fake Entities Are Still Abusing The DMCA Takedown Process To Hide Facts They Don’t Like

from the paving-the-road-for-abuse-with-good-intentions dept

The DMCA process remains as easily abused as ever, even as companies like Google (and, especially, Automattic) do what they can to head off this abuse.

It’s a numbers game. When you’re the size of Google, it’s impossible to vet every takedown demand. The easiest thing to do is comply immediately and, if need be, reinstate content when these demands are contested. But that puts the burden on proof on those whose content has been illegitimately removed, rather than on those who are issuing the takedowns.

It’s all the wrong way around, but the incumbents hold all the power. For years, lobbying efforts and misguided legislators have managed to turn a process that was supposed to be equitable into one where content removal requests are honored and follow-up questions are never asked.

So, it forces regular internet people to do the work large tech companies won’t. That’s where people like Dan Neidle from UK site Tax Policy Associates step up and let the rest of us know how much DMCA abuse is still occurring. (h/t longtime Techdirt reader BentFranklin)

Why is a tax lawyer writing about these things? Well, it’s probably because it’s too shady and shitty to ignore. Observe:

I wrote recently about a fraudulent attempt to use US copyright law to take down an article I’d written which was critical of a fake PR firm, “Mogul Press“. I was shocked to see how they did this – they copied my text into a fake website, then filed a takedown notice at Google claiming my article had copied theirs:

The notice was sent by “LMG Media Group” in the UAE. I don’t believe it exists – but Google rather brilliantly accepts takedown notices without checking if the person filing it exists.

Another identical notice was sent by “Lamar Media Corporation” in the US, which also doesn’t appear to exist:

These two takedowns targeted Niedle’s site. That’s his personal interest. But his informative post also uncovers other dubious takedowns utilizing much of the same language (like the distinctive phrase “completely infringing our copyrighted texts”), also issued by supposed business entities that don’t appear to exist.

Using that phrase, Niedle was able to find another 180 takedown requests in the Lumen DMCA notice database. One company that does exists — Spain-based Eliminalia — appears to specialize in this sort of thing, the laundering of its clients’ reputations via bogus copyright takedowns.

The company names used are as nonsensical as the requests. Ventucky Media Corporation. Venkata Media Corporation. Yan Media. And, for some reason, a bunch of fake firms specifically interested in removing Harris County, Texas court records from Google search results.

And there’s other stuff we’ve seen before happening here. Not only are fake firms issuing bogus takedowns claiming copyright of content they obviously didn’t create, but some of the more proactive abusers are creating fake sites for the sole purpose of issuing fraudulent DMCA notices.

The set-up is simple: the fake site copy-pastes the content it wants removed, backdates the post on the bogus site, and then sends Google a takedown notice claiming the site creating the original content “completely infringed” the content they copied/pasted to create “proof” of this “infringement.”

Multiple attempts to take down accusations of sexual misconduct by a founder of a New Hampshire network of addiction clinics. Lots of attempts to takedown investigative reporting by journalist Matei Rosca. A number of attempts to takedown a report alleging a student is an antisemite.

These are the acts of people trying to hide something but without any legal justification for doing so. Rather than live with it, they’re employing people with even less scruples than they possess to do it for them. And this will always be a problem because the burden of proof is never on the accuser. It’s the victims of fraudulent takedowns that are required to jump through multiple hoops to get their non-infringing content reinstated. The victims don’t have the power to stop this abuse. But, they’re at least willing to let us know when and how it’s happening. And hopefully continued reporting on these abuses will prompt Google and others to take a closer look at some of the sketchier requests that come across their proverbial desks.

Filed Under: 1st amendment, abuse, censorship, copyright, dmca, reputation management, takedown notice