Wordpress Goes Legal: Sues Over Two Egregiously Bogus DMCA Notices That Were Designed To Censor

from the kudos dept

We've talked in the past about the unfortunate situation in which there is almost no real punishment for bogus DMCA notices. Section 512(f) of the DMCA is supposed to provide a way to get attorneys' fees, costs and damages for bogus DMCA takedowns. In practice, however, 512(f) has been almost totally neutered by the courts (not that it was ever strong to begin with). Lately, however, there have been a series of interesting 512(f) cases, in which people, including copyright expert Larry Lessig, have been dealing with clear attempts to censor protected speech.

Today, there's a very interesting new entrant, fighting two separate cases to go after the senders of totally bogus DMCA notices that were solely designed to censor. Automattic, the company that runs the super popular blog hosting platform WordPress.com, has filed two separate lawsuits against egregious cases of DMCA abuse. These are actually two cases that we've written about as examples of using the DMCA to try to censor criticism. The first involved an attempt to remove a series of articles on the excellent RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of researcher Anil Potti. As we noted at the time, this appeared to be an egregious use of the DMCA to censor content that someone didn't like. The second is the more recent example of the group Straight Pride UK giving an interview to student journalist Oliver Hotham, then deciding that they didn't like the fact that they sounded like idiots in the interview, and tried to use the DMCA to take down the article which included the quotes they had willingly given to Hotham.

Automattic has teamed up with Ivan and Adam in one case, and Oliver in the other, to seek damages under 512(f). While the initial cases themselves are interesting, it's doubly interesting to see Automattic itself get involved. Traditionally, the focus for 512(f) claims had been directly on the site owners, not the service providers. But Automattic's General Counsel Paul Siemniski explains that the company feels that it needs to step up and protect freedom of expression and fight back against DMCA abuse:
Until there are some teeth to the copyright laws, it’s up to us - websites and users, together - to stand up to DMCA fraud and protect freedom of expression. Through these suits, we’d like to remind our users that we’re doing all we can to combat DMCA abuse on WordPress.com….and most importantly, remind copyright abusers to think twice before submitting fraudulent takedown notices. We’ll be watching, and are ready to fight back.

We’ll also be actively involved, on behalf of our users, in trying to change the law - both through court cases and in Congress - to make sure that everyone has the right to share their voice on the Internet without threat of censorship.
Kudos to Automattic for this move. It's a step beyond what pretty much every other service provider who receives bogus DMCA notices has done. Automattic notes that a large part of the problem is that these situations aren't anomalies. They happen all the time -- and are frequently for improper reasons, such as for censorship and attempting to unmask anonymous bloggers.
We receive hundreds of DMCA notices and try our best to review, identify and push back on those we see as abusive. Our users have the right to challenge a DMCA complaint too, but doing so requires them to identify themselves and fill out a legally required form saying that they submit to being sued for copyright infringement in a place that may be far away. If they don’t, their content is taken down and could stay down forever. This tradeoff doesn’t work for the many anonymous bloggers that we host on WordPress.com, who speak out on sensitive issues like corporate or government corruption.
Given the history of 512(f) cases for "knowingly materially misrepresenting" a case of copyright infringement, these cases may be an unfortunately uphill battle. But, they could serve a few very important purposes. First, it will hopefully make people think twice about sending a bogus DMCA notice over a Wordpress.com site, knowing that they may face a lawsuit. Second, at the very least, getting more cases on the books showing how toothless the law currently is to fight DMCA abuse hopefully will lead to the law being fixed, such that abusing the DMCA to stifle speech will have real penalties under the law.




Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Nov 21st, 2013 @ 9:50am

    shame that Congress were not more interested in ensuring there was no abuse to the DMCA law embedded, than looking after their pals, such as Dodd in the MPAA! had that have been the case, there would have been far less abuse and far more equal examples.
    until Congress actually wises up to the way this is being abused and how the people are pissed off at being the whipping boys for failure to do the right thing when making the law, there will be no respite. the censorship will just keep on coming! remember though, that Cameron and the UK dont have this law yet, so there can always be screwed up filings done over the pond!

     

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  2.  
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    DannyB (profile), Nov 21st, 2013 @ 10:06am

    Shouldn't we rename the DMCA?

    Given the vast unfathomable ocean of 'anomalies' of bogus DMCA takedowns, shouldn't we rename the act to:

    Digital Millennium Censorship Act

    If not, then there need to be some serious penalties for filing bogus takedown requests -- with real teeth. If it's okay to impose huge burdens upon Google, then it should also be okay to impose them upon Hollywood.

     

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  3. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Nov 21st, 2013 @ 10:11am

    But your implicit alternative would leave no REAL claims.

    Law pretty much assumes that all the participants are basically honest. When not, the courts are there to redress harm of fraud. SO, system is actually working right...

    And what you have here is yet another anomaly caused by bad actors. They should be hung to whatever extent is in the law...

    Now. -- BUT. Being forced to take down a negative article is still QUITE far from actually being censored in stating your own positives! These sites -- including Techdirt -- basically thrive on, er, "dirt", instead of their own notions of what's right. If the site that got the DMCA, or even Techdirt, vanishes in the next hour, very little will be lost...

    AND SO, Mike's position ends up holding that publishing negatives is more important than properly protecting works that are created with large input of cash and time! That's simply silly.

    The solution is already provided in law, and presumably justice will triumph. -- YES, that can be expensive, and if you want to increase penalty for civil fraud, I'm with ya. -- But there's no need to rail and flail at DMCA on this: it's specific BAD ACTORS, yet again.

     

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  4.  
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    silverscarcat (profile), Nov 21st, 2013 @ 10:14am

    Re: But your implicit alternative would leave no REAL claims.

    Except that the "Bad Actors" as you put it are the people who keep sending out so many DMCA notices so often.

    So, if we go after the "Bad Actors", you're saying that Google and other REAL content creators, the ones you rail against constantly, would be left alone to really create.

     

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  5.  
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    Gwiz (profile), Nov 21st, 2013 @ 10:24am

    Re: But your implicit alternative would leave no REAL claims.

    AND SO, Mike's position ends up holding that publishing negatives is more important than properly protecting works that are created with large input of cash and time! That's simply silly.


    First off, publishing critiques and rebuttals to what others have said is absolutely protected speech regardless if YOUR opinion of them.

    Secondly, this statement reeks of only allowing those with larges amounts of cash to be allowed Free Speech rights. I thought you were aligned against "The Rich". Waffle much?

     

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  6.  
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    Rikuo (profile), Nov 21st, 2013 @ 10:25am

    Re: But your implicit alternative would leave no REAL claims.

    "But your implicit alternative"

    Funny. I remember you screaming for years that Mike has no alternative when it comes to copyright. If it's implicit and thus, you're able to figure out what he means...why constantly ask him?
    Just in case you try and draw an analogy of some sort to us asking you what your Tax the Fucking Rich policy is...no, it's not the same. You have never outlined it.

     

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  7.  
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    Rikuo (profile), Nov 21st, 2013 @ 10:27am

    Re: Re: But your implicit alternative would leave no REAL claims.

    By Blue's own words, his comment is a "negative" and thus shouldn't be protected. After all, Mike's spent a large amount of cash on this website and his articles do take time to write. Thus, Blue's constant negative comments should be censored, according to this "logic".

     

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  8.  
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    Gwiz (profile), Nov 21st, 2013 @ 10:28am

    Re: Re: But your implicit alternative would leave no REAL claims.

    er....regardless of

     

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  9.  
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    Anonymous Coward, Nov 21st, 2013 @ 10:39am

    Re: But your implicit alternative would leave no REAL claims.

    When not, the courts are there to redress harm of fraud. SO, system is actually working right...

    The entire point of this article is that under current law, the courts basically cannot redress harm of fraud. That's why 512(f) needs to be fixed.

    Reading is fundamental, and it appears you failed.

    And what you have here is yet another anomaly caused by bad actors. They should be hung to whatever extent is in the law...

    But the law basically says there is no extent. That's the problem. As described in the article. Which you didn't read.

    Being forced to take down a negative article is still QUITE far from actually being censored in stating your own positives! These sites -- including Techdirt -- basically thrive on, er, "dirt", instead of their own notions of what's right. If the site that got the DMCA, or even Techdirt, vanishes in the next hour, very little will be lost...

    Wait, what? Any criticism is not deserving of free speech protections? So are you okay with Techdirt deleting all of your comments?

    The solution is already provided in law, and presumably justice will triumph. -- YES, that can be expensive, and if you want to increase penalty for civil fraud, I'm with ya. -- But there's no need to rail and flail at DMCA on this: it's specific BAD ACTORS, yet again.

    Again, the point is that the DMCA doesn't allow you to go after bad actors.

    You apparently have a significant problem understanding basic concepts.

     

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  10.  
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    jupiterkansas (profile), Nov 21st, 2013 @ 10:50am

    Re: But your implicit alternative would leave no REAL claims.

    If the site that got the DMCA, or even Techdirt, vanishes in the next hour, very little will be lost...


    You have so little opinion of the site, yet you come here every single day for years to post your stupid texts. What a pathetic life.

     

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  11.  
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    DannyB (profile), Nov 21st, 2013 @ 11:36am

    Re: But your implicit alternative would leave no REAL claims.

    > Law pretty much assumes that all the participants are basically honest.

    Idiot. If everyone was honest we wouldn't need laws. Law should assume everyone is trying to game the system and be written accordingly.


    > And what you have here is yet another anomaly caused by bad actors.

    Another in a vast ocean of anomalies. A universe of anomalies. Do you know what the word anomaly means?


    > Being forced to take down a negative article is still QUITE
    > far from actually being censored in stating your own positives!

    So if one speaks the truth in negative unflattering things it's okay to censor; you should have told a lie saying positive glowing things.



    > it's specific BAD ACTORS, yet again.

    Yes, the bad actors that didn't put real teeth into the DMCA for bogus takedowns.


    > If the site that got the DMCA, or even Techdirt,
    > vanishes in the next hour, very little will be lost...

    You seem okay with it as long as the harm is done to someone else. If the harm is to someone else, it is very little. But if the harm is done to you it's worth $75 TRILLION or a lifetime of income for sharing two dozen songs, or stealing a college student's entire savings for their education, etc.

     

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  12.  
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    Nastybutler77 (profile), Nov 21st, 2013 @ 12:04pm

    Guess who's going to be getting a lot more business headed their way? If tumblr was smart they'd follow Automattic's lead, otherwise they risk losing a fair amount of business, I'd think. I know if I had a small blog, I'd be heading to WordPress.

     

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  13.  
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    John Fenderson (profile), Nov 21st, 2013 @ 12:11pm

    Re: But your implicit alternative would leave no REAL claims.

    The solution is already provided in law, and presumably justice will triumph. -- YES, that can be expensive


    So you admit to the underlying truth that makes the courts worthless to a large percentage of citizens: that you have to be wealthy in order to make use of them.

    I don't call that working. I call that broken.

     

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  14.  
    identicon
    Arthur Treacher, Nov 21st, 2013 @ 12:17pm

    Re: But your implicit alternative would leave no REAL claims.

    Being forced to take down a negative article is still QUITE far from actually being censored in stating your own positives!

    Surely you jest! "Being forced to take down" any article is censorship of a sort. In some cases, the US Court system has decided this is legal. But it remains censorship.

    Besides that, your "negative article" is someone else's positive article, don't you think? Or are we all in consensus all the time?

     

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  15.  
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    jameshogg (profile), Nov 21st, 2013 @ 1:17pm

    WordPress is now doing what the likes of Google with Youtube and others have failed to do for so long: stand up for basic common sense.

    DMCA claims ought to be examined individually before content is judged, and with no automated systems that are doomed with failure and predictable nonsense. If copyright advocates find such a method too impractical, that is their problem. They have no right to expect everyone else to bow the knee for their own ridiculous utopia.

    When a large website is forced to resort to automated DMCA systems in order to stay stable, I call that government-subsidised Digital Rights Management.

     

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  16.  
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    Anonymous Coward, Nov 21st, 2013 @ 2:32pm

    Nice to see that DMCA is being challenge more often.

     

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  17.  
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    anonymouse, Nov 21st, 2013 @ 2:59pm

    Re:

    I think Google is in a very difficult situation, they want to allow people to post anything they want, but also have to be careful they do not lose the dmca protection they have.
    If anything the court really needs to give the DMCA some teeth to punish those that use it to send bogus shakedowns.

    Even if they do that i still think the copyright monopoly should be paying for the costs google is incurring, it is not their fault that millions of people post content that is not allowed.If the industry made that content available elsewhere then there would not be this problem.

     

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  18.  
    identicon
    Anonymous Coward, Nov 21st, 2013 @ 3:11pm

    We Todd did.

    Dear Wordpress:

    Fuck you... We're above the law! "Fixes hair with Spooge"

    Sincerely, Sofa King

     

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  19.  
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    That One Guy (profile), Nov 21st, 2013 @ 4:57pm

    Re: Re: But your implicit alternative would leave no REAL claims.

    Another in a vast ocean of anomalies. A universe of anomalies. Do you know what the word anomaly means?

    As far as I can tell, to blue, 'anomaly' is 'Any example that proves my position to be wrong', hence a 90%, even 100% 'anomaly' rate still wouldn't stop them from being 'anomalies'.

     

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  20.  
    identicon
    Anonymous Coward, Nov 21st, 2013 @ 11:42pm

    Re: But your implicit alternative would leave no REAL claims.

    out_of_the_blue just hates it when due process is enforced.

     

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  21.  
    identicon
    joanne, Feb 13th, 2014 @ 4:24pm

    incest brother sister

    I like to say that incest is ok and people like me and my brother we do it all the time so i can't see why is wrong to make out with him and he has a lovely cock

     

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

  22.  
    identicon
    Bull, Mar 25th, 2014 @ 6:42pm

    Re: But your implicit alternative would leave no REAL claims.

    No the law is not working right unless the intent of the law is to remove the burden of proof from the accuser. As it stands the law places 100% of the burden of proof on the accused person. It is defacto censorship. A law that requires me to identify myself to an attacker and give up my right to anonymous speech just to defend myself against a bogus claim is not law at all. It is the essence of lawlessness and totalitarianism and belongs in St. Petersburg circa 1917, not on the Internet of 2014.

    The law deprives the accused of his privacy for to defend himself he must give up all his rights. It is a merciless mafioso scheme dreamed up by Jewish bolsheviks. The Jews are usually the culprit behind censorship. They call you intolerant and hateful while they plot to undermine society. Hollywood and the record labels are nearly 100% Jewish owned. There is your culprit for this draconian law.

     

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


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