Romance Author Adele Dubois Receives Takedown On Blog Post For Having The Same Name As Singer Adele

Copyright

from the bogus-dmca dept

I heard about this story last week, but it took a while to sort through all of the details. There were reports out there that the romance author Adele Dubois had been sent a DMCA takedown. Most of the reports were a bit vague, and then the Washington Post had a very confused writeup that bounced back and forth between copyright and trademark, without bothering to mention that you cannot use a DMCA notice for trademark issues (and also pointing much more of a finger at Google than was warranted).

I’ve now been able to see the full DMCA notice (which is not yet up on ChillingEffects, but should be soon — though I’ve included it below) and talk to a few people around this, and it appears that someone associated with Sony did, in fact, issue a DMCA takedown to Google, leading to a blog post by Adele Dubois being taken offline. Google has since reinstated the post, after reviewing the counternotice, so you can read it here, though depending on your workplace, it may be marginally not safe for work (think erotic romance novel graphics and prose).

The DMCA takedown notice details are extremely sparse. It notes that the “copyright owner” is “XL SONY” and that the “Copyright work description” is “ADELE + EXITOS.” It then lists out two URLs. One for “Location of the copyrighted work” and one for “Location of infringing material.” It’s not clear what the difference is here, but the first one takes you to a sales page for a totally different (and unrelated) romance book, whose author runs the blog where the Adele Dubois post was. The author of that book, Marianne Stephens, notes that she holds all the copyright on that particular book, and isn’t clear why it’s in the DMCA notice. The second link (location of infringing material) is the link listed above. The only connection that seems to be made is the fact that the famous singer Adele is on Sony, and the author of the blog post (and the erotic romance novel it talks about) has the pen name Adele Dubois (a name she’s used since well before the singer Adele became a professional singer). Either way, there’s no copyright in just the name Adele. The word Exitos seems totally irrelevant to anything.

Google, as it does in these situations, reverted the blog post to “private,” and then upon reviewing the counternotice turned the blog post back on. It’s not entirely clear from the notice who actually sent the takedown. It’s possible that it was an overaggressive representative of Sony. What does seem clear is that whoever sent it was just doing some sort of quick automated takedown effort without any real review — even though the takedown notice says:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In the Washington Post article, the author suggests that Google should have gotten “to the bottom of this” before taking the content down. While that would be nice, the problem is not so much with Google as with the law itself, the DMCA. Because of the way the DMCA is structured, companies that don’t take down content first and review the details later face significant liability if the content turns out to be infringing. The law basically says, if you want immunity from liability, you have to first pull the content offline. So Google followed that procedure. As we’ve noted, this part of the DMCA potentially violates the First Amendment, but has yet to be tested in court.

That said, you can see why it’s so frustrating to the recipient. It’s not at all clear from the notice that Google’s Blogger passed on to the blog owners the information on who really issued the takedown, or even what, exactly, they were claiming. The bizarre link to the totally unrelated book doesn’t help matters, but only serves to confuse them further. Combine that with the threat that this can lead to a “strike” against an account and you can see why some recipients of notices like this get pretty worried.

In the end, this looks like yet another of an all too common phenomenon (and one we’ve dealt with ourselves). Companies file automated or questionable (or insanely vague) DMCA notices all the time, and the structure of the law encourages companies who receive them to pull the content offline immediately and sort out the mess later.

Blogger has been notified, according to the terms of the Digital Millennium Copyright Act (DMCA), that certain content in your blog is alleged to infringe upon the copyrights of others. As a result, we have reset the post(s) to "draft" status. (A bit of background: if we did not do this, we would be subject to a claim of copyright infringement, regardless of its merits. The DMCA is a United States copyright law that provides guidelines for online service provider liability in case of copyright infringement.)

The URL(s) of the allegedly infringing post(s) may be found at the end of this message. This means your post - and any images, links or other content - is not gone. You may edit the post to remove the content in question and republish, at which point the post in question will be visible to your readers again.

If you believe you have the rights to post the content at issue here, you can file a counter-notification. For more information on our DMCA policy, please see http://www.google.com/dmca.html.

The notice that we received, with any personally identifying information removed, will be posted online by a service called Chilling Effects at http://www.chillingeffects.org. We do this in accordance with the DMCA. You can search for the DMCA notice associated with the removal of your content by going to the Chilling Effects search page at http://www.chillingeffects.org/search.cgi and entering the URL of the blog post that was removed.

If it is brought to our attention that you have republished the post without removing the content in question, then we will delete your post and count it as a violation on your account. Repeated violations to our Terms of Service may result in further remedial action taken against your Blogger account including deleting your blog and/or terminating your account.

If you have legal questions about this notification, you should retain your own legal counsel.

Sincerely,
The Blogger Team

Complainant Information:

05/11/2012

Recipient Information:

Google, Inc. (Blogger)
Mountain View, CA USA

Infringement Notification for Blogger:

Copyright Owner
XL SONY

Copyright work description
ADELE + EXITOS

Location of copyrighted work
http://tinyurl.com/4ydyl69

Location of infringing material
http://romancebooksrus.blogspot.com/2012/05/new-intimate-art-by-adele-dubois.html

Sworn Statements:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. [checked]

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. [checked]

Signature
[private]

Signed on this date of:
05/11/2012

Filed Under: adele dubois, dmca, romance, takedown
Companies: google, sony