dmca 512f – Techdirt (original) (raw)

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 512f, takedowns
Companies: apple, reddit

Guy Who Tried To Extort YouTubers With Bogus DMCA Takedowns Agrees To Settlement

from the that-was-mighty-quick dept

Just a couple months back we wrote about YouTube suing a guy for trying to extort YouTubers with bogus DMCA notices. The evidence was pretty damning that Christopher Brady had been harassing and demanding money from various YouTubers and using the threat of bogus DMCA notices (which could kill someone’s account) for leverage. The complaint also suggested that Brady was looking to swat some YouTubers as well. As we noted in our original post, the case hinged on Section 512(f) of the DMCA, which was supposed to be the tool to prevent false takedown notices — but, which in practice is effectively a dead letter, as 512(f) claims rarely go anywhere. If there was some hope that a case with the facts so blatant might breathe new life into 512(f), well, that ended quickly as Brady has wasted no time at all in agreeing to settle the case.

The settlement is pretty straightforward. Brady agrees not to send any more bogus DMCA notices to YouTube and also agrees not to “misrepresent or mask” his identity on any Google property. He also agreed to pay $25,000 to Google, which probably about covers their legal bills for bringing this case. Brady also released an apology statement, which suggests he may have sent more bogus DMCA notices than were included in the lawsuit.

?I, Christopher L. Brady, admit that I sent dozens of notices to YouTube falsely claiming that material uploaded by YouTube users infringed my copyrights. I apologize to the YouTube users that I directly impacted by my actions, to the YouTube community, and to YouTube itself.?

Of course, while it’s good to see such an apology and settlement, it still doesn’t change the fact that bogus DMCA notices happen all the time. While Brady may have been more extreme and more blatant than most, there’s still a huge problem with a law that creates a situation that mere accusation will often get content removed.

Filed Under: 512f, christopher brady, dmca, dmca 512, dmca 512f, dmca notices, extortion, shakedown, takedowns
Companies: google, youtube

Starz Really, Really Doesn't Want You To Know That TorrentFreak Wrote About Leaked Shows, Or That Anyone Tweeted About It

from the and-twitter-is-assisting dept

Something weird is going on with Starz over the past few days. Either it really, really doesn’t want you to know that a bunch of unreleased episodes of well known TV shows were recently leaked online. Or it really, really, really wants you to know all about it. Which one of those two things is true may depend on just how familiar whoever is manning the Starz copyright-takedown desk is with the concept of the Streisand Effect.

You see, a week ago, TorrentFreak published the article linked above. This is a pretty typical TorrentFreak kind of article, noting that some high profile shows or movies have leaked, perhaps providing screenshots, but not providing any links or really telling anyone how to get the shows. It is just reporting that the leaks exist. Two of the shows leaked were from Starz. As TorrentFreak wrote:

There are also two full and unreleased seasons of Starz? ?The Spanish Princess? and Hulu?s ?Ramy? among the leaked files. Both series have yet to premiere and were leaked from screener sources.

Then, last Thursday, TorrentFreak published a new article, noting that Starz had, in fact, filed a copyright claim with Twitter for TorrentFreak’s tweet to its original story. The takedown was sent by an operation called The Social Element, which holds itself out to be a “social media agency” who can “simplify complex social media for global brands.” It also describes itself as:

A global team of geeky pioneers, using our social media super powers to help our clients connect with their audience in the most powerful way.

I was at an event late last week, and only saw the latter story of the takedown message late Friday evening after returning to my hotel. I set it aside, thinking maybe I’d write up something this week. And then, over the weekend, things got weirder. Reporter Mathew Ingram told me, oddly, that his tweet about TorrentFreak’s article about Stars/The Social Element pulling down TorrentFreak’s tweet… also received a DMCA takedown and was removed:

This is Kafka-esque: I posted yesterday about Twitter removing a tweet from TorrrentFreak because it contained a link to an article about pirated copies of Starz shows appearing online (with no links to said content). Twitter has now removed my tweet linking to that story pic.twitter.com/pKF4VCRSit

— Mathew Ingram (@mathewi) April 14, 2019

He was not the only one. Copyright law professor Annemarie Bridy, who is regularly featured on these pages received one as well:

Also, the twitter account for SJD, who runs Fight Copyright Trolls:

And others as well:

And, to take it one step further, into the “asking for real trouble” category, EFF itself has announced that it had a tweet taken down for linking to the TorrentFreak article. EFF’s staff attorney Kit Walsh was quoted in the original, saying “Starz has no right to silence TorrentFreak?s news article or block links to it.” Then EFF tweeted a link to the article with text similar to Walsh’s quote… and that tweet got taken down due to a Starz copyright claim. That’s playing with fire.

A quick search of the Lumen Database shows dozens of DMCA notices sent to Twitter, many within the last week or so. I can’t see most of those tweets because Twitter has taken them down. Except somewhere after a few days, it appears that Starz took the ball itself, and boy did it run with it. It just started issuing takedown after takedown on basically any tweet about this. If, initially, this was a story about a clueless social media agency gone rogue, Starz’s actions over the weekend suggested otherwise.

Let’s just review how messed up this and how far removed any of this is from actual copyright infringement.

TorrentFreak, a popular news source, published an article merely noting the fact that some Starz TV shows had leaked online. This bizarre “social media agency” called The Social Element decides, on behalf of Starz, that this is no good at all, and sends a DMCA notice to Twitter for TorrentFreak’s tweet about the article. Already, this is ridiculous. The article was not infringing anything, nor linking to anything infringing (it doesn’t even tell anyone how to get the infringing works). The tweet is even less infringing.

But then, Starz doesn’t just decide to double down on what The Social Element did, it goes full on censorship crazy, sending takedowns on every tweet about TorrentFreak’s new article about the bogus takedown of the tweet to the new article. This is so far removed from any kind of copyright infringement that it is beyond frivolous.

It’s also a very clear violation of 512(f) of the DMCA, which would matter if 512(f) had any legal teeth at all.

Equally concerning is the question of why Twitter is agreeing to take down these tweets based on obviously bogus DMCA claims. I know that many sites do automatically take down any content on the receiving end of a DMCA notice, but most larger companies at least do a cursory review to make sure they’re not obviously bogus. I’d be surprised if that’s not the case with Twitter, but for whatever reason, all those tweets are being taken down — even the one from EFF, which you might think would at least make someone at Twitter take a second look.

Of course, as you might imagine, the more Starz doubles down on this destructive and abusive campaign, the more people are hearing about how its TV shows have been leaked online. Perhaps it’s some sort of sophisticated viral marketing play… or, more likely, some people who have never heard of the Streisand Effect, but are getting a very big lesson in it today.

Last night I reached out to Twitter, Starz and The Social Element with a whole bunch of questions, and may update this piece if any of them get back to me with answers.

Filed Under: 512f, abuse, copyright, dmca, dmca 512f, free speech, journalism, reporting, takedowns
Companies: starz, the social element, torrentfreak, twitter

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

from the now-what? dept

Yesterday afternoon, for about two and a half hours, members of the House Judiciary Committee took part in what they’re calling they’re “Copyright Review Listening Tour” for a roundtable in Silicon Valley. There were 20 participants in the roundtable, mostly made up of people who work in and around the technology industry. Today, the Representatives will host a similar roundtable down in LA, which will be mostly made up of entertainment industry folks. Unfortunately, this aspect of the tour seems to reinforce the silly idea that copyright law is a battle between “Silicon Valley” vs. “Hollywood” — and that what’s good for one is bad for the other.


Reps. Blake Farenthold, Darrell Issa, Jerry Nadler. Photo by Parker Higgins, EFF, CC BY

That whole line of argument is ridiculous and counterproductive — as a few of the panelists at yesterday’s hearing made clear. Good copyright law enables new platforms to rise up and that provides more opportunities for content creators to create, to distribute, to build a fan base and to monetize. Bad copyright law recreates a gatekeeper-based system where only the elite can choose what content is allowed to reach the public. In short, the innovations that are being created are actually helping content creators and are living up to the Constitutional requirements for copyright: that it “promote the progress.” But it’s frequently not copyright that’s doing that job — it’s the technology innovations.


Panelists Timothy Vollmer, Brianna Schofield, Zoe Keating, Michael Keller & Brewster Kahle. Photo by Parker Higgins, EFF, CC BY

And the key thing that we heard yesterday was how copyright was actually counterproductive in that it has frequently blocked innovative services from existing or from providing the best services for content creators. There were a few key themes that became clear throughout the hearing:

  1. Statutory damages are an absolute disaster and create massive chilling effects for free speech and innovation. Multiple panelists discussed how much of a problem statutory damages are for innovation. They highlighted how frequently they are abused to stifle innovation and to create fear among people for doing something most people think should be legal. The disconnect between the actual “infringement” and the punishment is a major problem. Somewhat surprisingly (in a good way!), the members from Congress seemed quite interested and concerned about the problems of statutory damages. Rep. Jerry Nadler, who historically has basically supported the RIAA position on all copyright-related issues, surprised me by agreeing that statutory damages seem like a real problem, and noting that basically all other torts require a showing of actual damages. Rep. Darrell Issa admitted that it was unlikely Congress would be able to dump statutory damages “in the next decade,” but asked for ideas on ways to “bend” the system in a more reasonable way. The panelists made a few suggestions — including a personal use exemption and a “good faith” defense for sites (and users, I guess) where they don’t believe what they’re doing is infringing. Such a defense, if successful, would take away statutory damages, and only allow actual damages. A potentially better alternative was requiring the copyright holder to prove “bad faith” to move from actual damages to statutory damages. That Congress even seems open to this is a huge step in the right direction.
  2. Fair use is important and shouldn’t be cut back. Lots of good discussions from panelists about the importance of fair use and how bad decisions create real chilling effects on innovation. When the one “Hollywood” person on the panel, CreativeFuture’s Ruth Vitale, made a slightly nonsensical argument that increasing fair use was bad for creators, other panelists quickly pointed out that’s not even close to true, and tons of content creators regularly rely on fair use to create content. Rep. Nadler (again, long a supporter of expanding copyright law) noted that he believes fair use needs to be made “less dangerous” for people to embrace it. That was really encouraging.
  3. The problem of bogus DMCA takedowns is massive and there needs to be real punishment. Brianna Schofield, from Berkeley, pointed to research showing that companies that actually review DMCA takedowns are now rejecting between 40 and 60% of them as bogus takedowns, designed to censor content, rather than legitimate copyright claims. And Alex Feerst (and some others) suggested that what’s really needed is real teeth to Section 512(f) of the DMCA, which is supposed to punish those who send bogus DMCA takedowns, but, as we’ve seen, is entirely toothless based on the way courts currently interpret it. Rep. Issa actually asked if there should be criminal punishment for bogus takedowns, which I think took people by surprise, and probably goes too far.
  4. The DMCA’s 1201 anti-circumvention provisions are a disaster and the idea that people need to re-apply every three years just to fix products they own — because of copyright law — is messed up. Again, it was nice to see that the Representatives really seemed to get this fact and seemed interested in looking at ways to fix Section 1201 — such that you couldn’t use digital locks and DRM for anti-competitive purposes or to control other aspects of your business.
  5. Orphan works are a problem and the Copyright Office’s solution is a disaster. Multiple panelists pointed out that the orphan works problem remains a big, big problem — and they’re concerned that the most recent suggestion from the Copyright Office (which requires “registration” to use an orphan work) is an absolutely terrible solution. People suggested going back to the previous Copyright Office proposal from a few years ago, that just required a diligent search for the copyright owner — but that plan died when photographers freaked out after misreading the proposal. The Internet Archive’s Brewster Kahle even brought up the suggestion of fixing the orphan works problem by returning to a system of “formalities” in which a copyright holder is required to register to get the copyright (rather than automatically getting it) and then would need to renew the copyright every five years with another payment. As Kahle pointed out, this would also help solve some of the concerns Congress has over funding the Copyright Office. This is a suggestion that many have made over the years that had been mostly ignored — but at least a few on the panel seemed interested in the idea, with Rep. Issa rightly pointing out that the patent office already works this way.
  6. Modernizing the Copyright Office: The panelists went back to this issue multiple times, in part because it’s hot in DC right now, though much of the tech industry has basically avoided the discussion. Both the Copyright Office and the Library of Congress (which is where the Copyright Office is housed) are antiquated, with terrible and broken technology. Hollywood is strongly pushing to take the Copyright Office out of the Library of Congress and set it up as its own independent agency to try to give it more power (and because they don’t like that the Library of Congress actually takes into account things like what’s good for the public…). Ruth Vitale kept arguing for a separate Copyright Office, but when pressed on why, the only thing she could come up with was that the Library of Congress needs more room to store all of its books. Really. Michael Keller, the University Librarian at Stanford, rightly pointed out that pulling the Copyright Office out of the Library of Congress wouldn’t fix anything — it would just create more “chaos” and leave us with two dysfunctional organizations, rather than one.

There were some other points made, but overall, it was surprisingly encouraging in that most of the hearing didn’t focus on red herrings and the usual boring talking points in copyright debates, but rather really did focus in on specific key issues. And, most surprising of all was that many of the Congressional Reps who were there not only seemed really engaged and mostly on point concerning the issues raised, but actually seemed open to looking at real legislative proposals on these issues. Of course, going from there to actually getting proposals before Congress is still going to take a Herculean effort — because almost all of the good proposals listed above would almost immediately be fought hard by the big Hollywood studio lobbyists, who still seem to think of this as a zero sum game — where any improvement to fair use is an attack on them, or any attempt to make sure the DMCA isn’t abused is somehow a direct assault on the film business.

The biggest point that went totally missing from the debate was the TPP and other existing trade agreements. It’s worth noting that for all the talk of fixing DMCA 1201 or solving the orphan works problem, doing so would almost certainly violate what the USTR just put into the TPP agreement that Congress needs to ratify (or not!) in the next few months. It was a little disappointing that no one raised this issue, and the fact that if Congress doesn’t want to give up its power to make these kinds of fixes, it should vote down the TPP. Similarly, ideas like Brewster Kahle’s return to copyright formalities requirements would violate the Berne Convention, and other changes suggested would violate a variety of other existing trade agreements. Of course, Congress should be willing to do exactly that in order to fix a terribly broken copyright system, but with at least the TPP currently on Congress’s docket, it seems important to remind them that, in many ways, the TPP can bind Congress’s hands in addressing many of the problems brought up at the hearing.

Filed Under: 512f, copyright, copyright reform, darrell issa, dmca, dmca 1201, dmca 512f, fair use, house judiciary committee, jerry nadler, orphan works