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

from the ah,-censorship dept

We recently wrote about how an ad firm connected to a movie had misused the DMCA to takedown material off a Facebook fan page for the movie Let Me In, specifically claiming that they were doing so because they didn't want too many fans to use that page, rather than the official movie page. Of course, that's not what the DMCA is for. The person who ran the fan page filed a detailed DMCA counternotice, and received the following email from Facebook in response:
We have received your counter-notification. We will replace or cease disabling access to the content at issue between 10 and 14 business days from now unless we receive notice that the complainant has filed legal action against you relating to such content.
This is part of how the DMCA works. If the user files a counternotice, and if the copyright holder does not file a lawsuit within 10 to 14 business days, the service provider can put the works back up. Now, some say that service providers are required to restore the material, while the text of the statute is a bit more ambiguous. In theory, a service provider could opt not to restore the materials for other reasons. However, in this case, none of that matters, as Facebook appears to have promised that it would "replace or cease disabling access" within 10 to 14 business days.

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

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


Reader Comments (rss)

(Flattened / Threaded)

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    Hephaestus (profile), Oct 8th, 2010 @ 12:03pm

    This would be a great test case to challenge the DMCA on first, and fourteenth amendment issues. First for the free speech, fourth for lack of due process.

     

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    Anonymous Coward, Oct 8th, 2010 @ 12:04pm

    Free speech? Everybody knows that you have to pay for the speech you use or else no one would ever speak again. Wait, what?

     

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    Josh Taylor, Oct 8th, 2010 @ 12:14pm

    same way with YouTube

    Same way how ***holes misuse DMCA on YouTube. Conjopi for example got NintendoCapriSun and Chuggaconroy banned by flagging their "Let's Play" videos.


    "Removed due to copyright claim by ISOPHS, Ltd."

    Conjopi also claimed he owns Chuggaconroy's voice. This is insane. How can you own a copyright to someone's voice?

    If I, for example, owned the copyright to someone's voice, I would force that person to have his/her voice box (larynx) surgically removed at the hospital and have it handed over to me.

    This is nuts. ISOPHS, Ltd. is a cyberterrorist organization. They need to be reported to the FBI, the CIA, and the Pentagon.

    Nobody is safe on the net even if you have a PC, Mac, Linux, or Ubuntu.

    I say we boycott and shun technology and everything that runs on electricity. In fact, we should boycott and shun electricity as well. We should all live like the Amish.

    Forget living like the Amish, boycott and shun housing. That's right forget about living in a house. We should start living in the wilderness. Our home is in Heaven with the Lord.

     

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    CJay (profile), Oct 8th, 2010 @ 12:53pm

    Facebook or the Ad Firm?

    It could also be that the Ad Firm TOLD Facebook that they had sued within the time period and therefore they could keep the material off FB. Meanwhile no lawsuit is filed (yet) and FB doesn't notify the poster about the lawsuit notice because they figure he already got served... Still bad, but a different bad guy.

     

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    Anonymous Coward, Oct 8th, 2010 @ 12:54pm

    Action against Facebook

    512(g) grants immunity to Facebook against any action based on their removal of the allegedly infringing material. That immunity is expressly removed, however, if they do not replace the material between 10 to 14 business days following the receipt of the counternotice unless the ad firm has notified Facebook that they filed suit against the Facebook user.

    Therefore, the Facebook user should start watching for process servers or certified mail. They could also file suit against Facebook and attempt to get a court order to replace the material. I'm not certain if those attorney fees and costs would be recoverable. Would the Facebook user have a claim to any economic damages? Usually that isn't the case.

     

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      mischab1, Oct 8th, 2010 @ 1:05pm

      Re: Action against Facebook

      Before wasting money on lawyers, they should attempt to find out why Facebook hasn't restored the material. (Maybe it's just incompentence.)

      You know, something like..

      Hey Facebook, per your email on ___, you were going to restore ____ if no complaint was filed within 10-14 business days. It is now __ business days. I haven't recieved notice of any complaint, why has the material not been restored?

       

      reply to this | link to this | view in chronology ]

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        Anonymous Coward, Oct 8th, 2010 @ 1:08pm

        Re: Re: Action against Facebook

        I assumed (post #6) that this has already happened, given the OP's contact with the Facebook user.

         

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    Barry Schnitt, Oct 8th, 2010 @ 7:56pm

    Apologies from Facebook

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

    Also, we're big fans of TechDirt and will try to be responsive if you give us a chance to comment on or clarify anything Facebook-related. Feel free to send us an email anytime at press@facebook.com or to me personally at the info below.

    ---
    Barry Schnitt
    Director, Policy Communications
    Facebook
    barry@facebook.com
    650.543.4979

     

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    RussK (profile), Oct 10th, 2010 @ 4:29pm

    The DMCA had its effect

    Now that the FB posts are back several weeks after the initial DMCA notice, it means much less to the film company - they had the exclusive time when they wanted it.

     

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    facebook, Nov 9th, 2010 @ 2:00pm

    dmca

    They were upset that there was a fan group supporting their movie? I would just suggest that none of those fans go see the movie. Facebook | Facebook Facebook ..

     

    reply to this | link to this | view in chronology ]


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