What The DMCA System Is NOT For: Shutting Down Twitter Accounts You Don't Like And Sending Anonymous Tips

from the it's-a-broken-system;-let's-break-it-further dept

It's long overdue, but someone needs to start running some remedial DMCA courses. The takedown notice system is severely flawed, but ultimately workable. It's supposed to be used to alert various services of copyright-infringing content. It is not supposed to be used to:

One of the key elements of a DMCA notice is the statement a sender swears are truthful:

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.

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.
Both statements come into play in the following DMCA notices.

First up, we have a rep for the International Thespian Society issuing a takedown notice on an entire Twitter account, supposedly for using the ITS logo without permission.
Description of infringement: They are using our logo without permission, and it is the incorrect/old version of the logo.
So, not only is the logo someone else's property, but apparently it's the one the Society is no longer using, which I guess makes it worse[?].

Here's the ITS logo:


Here's a screenshot of the account that was removed (via Google's cache).


There's no logo visible here and the account doesn't seem to have been active for very long. It could have been utilizing the ITS logo briefly, but by the time it was last crawled that was no longer the case. (There's not much of a gap here. Google's last crawl was Feb. 1st. The takedown notice was issued on Jan. 29th.) So, a simple request to the account owner could have possibly resulted in the removal of the logo without removing the account. But, that's not the only problem ITS had with the Twitter account. The next sentence in the "Description of infringement" is entirely baseless and is not what the DMCA is supposed to be used for.
Their tweets are also in violation of the International Thespian Society
What the hell does that mean? Other than the momentary logo usage (which is far from proven), the account made no effort to associate itself with ITS. Sure, those tweeting the account mentioned things like how attractive their ITOs (International Thespian Officer) were ("The ITO at our conference was literally so attractive.") and others were a bit more off-color ("I played sweet and sour (sweet means gay, sour means straight) at conference for every boy I saw. I only guessed two sour..."), but the account itself made no claims to be affiliated with the Society. It appears someone at ITS found these tweets a bit unsavory and decided to nuke the account in order to ensure the everlasting purity of the thespian world -- at least the thespian world under its control.

So, this is speech being killed by a tight-assed Society who couldn't sit idly by while acting students lusted after their instructors or noted that the drama world attracts fewer heterosexual men than other pursuits. Terrible and, again, an abuse of the DMCA takedown system. The tweets issued by @ThesConfessions were not copyrighted material. Only the logo was, if indeed it was ever present. Even then, the only thing that needed to be removed was the infringing logo, not the account and its tweets.

Next up: making claims about copyrighted material that isn't yours to be making claims about (the "I am the copyright owner or authorized to act on the behalf of the authorized owner" section).

Here's one sent to Google from a "friend."
1. Complainant's Information

Name:
Company name:
Full legal name of the copyright holder: friend
Country of residence: EG
A kindhearted stranger on the internet is a rarity, especially one who uses a now-fraudulent legal form to send anonymous tips.
2. Your copyrighted work
Location of copyrighted work (where your authorized work is located):


i would like to report that site www.get80.com
take look at that one and find your self he selling other people courses
Helpful, but it's not really your copyrighted work, is it, friend-o?

Gather 'round, readers. Take one look yourself and see what get80 used to be selling before the site was blinked into nonexistence by "friend." (No link for you, readers. Even the cache pops up a dialog box -- with Adblock and such equipped.)


It certainly appears a variety of courses were being hawked at impossibly low prices. This would seem to be an open-and-shut case of mass infringement, but that's something for the authorized copyright holders to sort out, not just random internet denizens who enjoy the mundanity of filling out forms.

Now, the last example is the tiniest of infractions, but if we're going to hold the DTECnets and the IP Arrows of the world to a certain standard, then everyone needs to play by the same rules, even "friends" who stumble across cheap-looking sites apparently selling infringing goods.

But the sterner warning goes to the International Thespian Society which used a DMCA notice to kill an account it just didn't like. That's not "protecting your IP." That's just small-scale thuggery.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Violynne (profile), Feb 11th, 2014 @ 11:05am

    "The takedown notice system is severely flawed, but ultimately workable."
    ROTFLMAO!

    Want to buy a bridge?

     

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

  2.  
    icon
    weneedhelp (profile), Feb 11th, 2014 @ 12:39pm

    Uptight

    A bunch of uptight theater geeks... you mean... [gasp] there are gays in theater? No... way.

     

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

  3. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 12:41pm

    Cushing: you're an unemployed idiot that really shouldn't be opining on what is and isn't censorship. kthxbai

     

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  4.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 12:42pm

    Re:

    I'll fix it for him.

    The takedown notice system is severely flawed, but potentially workable.

    I think the biggest obstacle to making it workable is that it needs to have a better counter-notice provision that allows a account holder an opportunity to respond prior to content being taken down, where by the host does not lose safe harbor protection since if it makes a good faith decision to allow the content to stay based on the account holder's counter-notice. If that were the case, I could see it being workable.

     

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  5.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 12:44pm

    Re:

    so you want to censor him?

     

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

  6.  
    icon
    Gwiz (profile), Feb 11th, 2014 @ 12:46pm

    Re:

    Cushing: you're an unemployed idiot that really shouldn't be opining on what is and isn't censorship.


    When did employment become a prerequisite for having an opinion?

     

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

  7.  
    icon
    Gabriel J. Michael (profile), Feb 11th, 2014 @ 12:48pm

    The DMCA is NOT for you.

    Tim, I think we all need to realize that the DMCA is NOT for us. Abiding by the law is really just a nuisance. How can you actually expect rights holders to follow the law? After all, the law is about stopping those other people from stealing their stuff.

    Kind of like how X-Art is complaining about copyright infringement while also illegally producing commercial films without permits and violating health ordinances. NSFW link: http://fightcopyrighttrolls.com/2014/02/07/x-artmalibu-media-sues-alleged-file-sharers-over-illegall y-produced-videos/comment-page-1/

    How can we expect rights holders to abide by all these pesky rules? That just gets in the way of their creativity. It's almost like you don't think that IP law is a special kind of law that is more important than every other type of law.

     

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

  8.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 1:03pm

    The DMCA was written in a way that left it wide open to abuse: A draconian penalty for inaction on the part of the receiver, but zero penalty for sloppy or overreaching claims on the part of the sender. Add to that the difficulty of verifying a DMCA claim to be sure it's not completely bogus to begin with. The end result is a law that's about as one-sided as it can be.

    Since the vast majority of DMCA submissions are churned out by automated computer programs run by hired guns who apparently get paid according to how many DMCA claims they can spit out (and every incentive to 'pad their books') should we really be surprised at the astronomical level of DMCA abuse that has resulted from this terribly-written law?

     

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

  9.  
    icon
    crade (profile), Feb 11th, 2014 @ 1:08pm

    Re:

    Exactly. Considering who designed it, the cynic in me says you are too kind in assuming that the DMCA wasn't designed to be used exactly like this.

     

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

  10.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 1:09pm

    Re: The DMCA is NOT for you.

    How can we expect rights holders to abide by all these pesky rules? That just gets in the way of their creativity.

    The only creativity exhibited by the rights holders that make heavy use of DMCA notices is in some of the claims made in the notices. The works that they are trying to protect are those they have gained by contract, under terms that benefit them, rather than the real creators.

     

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

  11.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 1:13pm

    Re:

    I seemed to work just fine for the International Thespian Society.

     

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

  12.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 1:17pm

    Re: Re:

    A lot of unemployed idiots got very rich giving opinions.

     

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

  13.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 1:30pm

    I beg to differ.

    " It's supposed to be used to alert various services of copyright-infringing content. It is not supposed to be used to:

    take down legitimate content, however inadvertently
    take down speech/criticism you don't like
    alert hosting services of potential trademark violations
    used as an outlet for some misguided attempt at public service."

    Apparently, it is. If Congress didn't want it used for those purposes they could have easily written it differently, or even changed it afterwards. They didn't. And haven't. No, the DMCA is working just the way Congress and various industries want it to.

     

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

  14.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 1:46pm

    Re:

    Wow, so persuasive.

     

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

  15.  
    icon
    Mike Brown (profile), Feb 11th, 2014 @ 1:54pm

    What's the penalty for perjury?

    The DMCA form says "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."

    So, at what point does this mysterious "penalty of perjury" kick in?

     

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

  16.  
    icon
    Capitalist Lion Tamer (profile), Feb 11th, 2014 @ 2:21pm

    Re: Re:

    The takedown notice system is severely flawed, but potentially workable.

    That is a better phrasing.

     

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

  17.  
    icon
    weneedhelp (profile), Feb 11th, 2014 @ 2:30pm

    Re: Re:

    Or being an idiot?

     

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

  18.  
    icon
    weneedhelp (profile), Feb 11th, 2014 @ 2:32pm

    Re: The DMCA is NOT for you.

    Whoa whoa whoa now... you leave x-art alone... that's quality P right there. Quality I tell ya. [fingers in ears] La la la la.

     

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

  19.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 2:35pm

    Re: What's the penalty for perjury?

    The "under penalty of perjury" clause only refers to being AUTHORIZED to make the copyright claim (E.G., that you are the copyright owner or a hired gun)

    The DMCA only requires a "good faith belief" that the claim is accurate. It does not even require that a human being at least review the claim before it is sent -- a computer can be tasked with doing the whole shebang. And if a programming error results in a million - or billion - wrong DMCA claims being sent out, there is no penalty whatsoever (as long as it was not intentional fraud).

     

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

  20.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 2:39pm

    whose fault is it that things like this are allowed to happen?

    CONGRESS!

    who could ensure things like this didn't happen any more

    CONGRESS!

    who is being totally screwed by the entertainment industries, RIAA, MPAA and Hollywood, plus others, but are raking it in via under the counter deals?

    CONGRESS!

    when will this sort of thing stop?

    Not while there is a mix between the industries and CONGRESS!!

    guess we better just keep on complaining and pointing out, because nothing will change!!

     

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

  21.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 2:52pm

    As long as there's no real penalty it will be abused, like everything else.

     

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

  22.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 3:33pm

    Here's who sent the DMCA Takedown Notice:


    Reporter:
    Copyright Owner: International Thespian Society
    Name: [redacted] --> Katherine Fischer
    --> kfischer@schooltheatre.org
    Company: Educational Theatre Association
    Job title: Marketing Manager

     

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

  23.  
    identicon
    Digitari, Feb 11th, 2014 @ 3:40pm

    Thespians

    @ThesConfessions " I was only ACTING!!!"

     

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

  24.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 4:52pm

    Re:

    average_joe just hates it when due process is enforced.

     

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

  25.  
    identicon
    Anonymous Coward, Feb 11th, 2014 @ 4:55pm

    average_joe just loathes it when due process is enforced.

     

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

  26.  
    icon
    That Anonymous Coward (profile), Feb 11th, 2014 @ 6:14pm

    Re: Uptight

    for me it was like being in a headstart program in High School.

     

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

  27.  
    icon
    PaulT (profile), Feb 12th, 2014 @ 12:51am

    Re: Re:

    Maybe he's admitting that he's one of those suspected to be paid to derail conversations here.

     

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

  28.  
    icon
    btrussell (profile), Feb 12th, 2014 @ 3:10am

    "But the sterner warning goes to the International Thespian Society which used a DMCA notice to kill an account it just didn't like. That's not "protecting your IP." That's just small-scale thuggery."

    Wrong. Twitter pulled the account. Or did they review it and come to a different conclusion than you? If twitter and youtube et al cared about their users, accounts wouldn't be getting deleted on such false claims.

    P.S. How do I get "the content" loaded into 140 characters of technology? Without "the content" twitter will fail.

     

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

  29.  
    icon
    Violynne (profile), Feb 12th, 2014 @ 3:48am

    Re: Re: Re:

    It may be a better phrasing, but it's still not true.

    No DMCA-like laws will ever work because it falsely places a creative restriction on new works which may or may not use other copyrighted works.

    In short: the DMCA and Fair Use can never co-exist peacefully because there will always be people out there who scream "It's mine! Pay me or remove it!" without realizing why their own works are/were popular to begin with.

    Abolish the DMCA and copyright. Until this happens, Techdirt will have another 100 years of articles to write.

     

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

  30.  
    identicon
    GEMont, Feb 12th, 2014 @ 12:42pm

    Public Action

    Is it possible for members of the general public to file their own phony DMCA notices against those companies on the growing list of DMCA abusers??

    Apparently no real evidence is needed and it seems as though almost anyone can file one with utter impunity.

    Perhaps a massive public phony DMCA take-down party by hundreds/thousands of citizens against the companies that have been abusing the system will wake up law enforcement.

    After all, the law has done nothing to date about the huge misuse of the DMCA take-down notice system, even though the law actually states that criminal charges can be brought against those that misuse it.

    When the federal government and its agencies stop working for the people who pay(*1) them, there is little recourse but for the public itself to take over those services, since there is no legal means of firing the errant government and its agencies and hiring new ones.

    (*1) - pay them above the board - taxpayer citizens, rather than pay them under the table - corporations, organized crime.

     

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

  31.  
    icon
    Sheogorath (profile), Feb 15th, 2014 @ 12:56am

    Re: Public Action

    Perhaps a massive public phony DMCA take-down party by hundreds/thousands of citizens against the companies that have been abusing the system will wake up law enforcement.
    Yes, and all those who take part should live outside the US so the penalties for filing false DMCA notices don't apply to them. I live in England and am willing to join in.

     

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

  32.  
    identicon
    GEMont, Feb 15th, 2014 @ 4:21pm

    Re: Re: Public Action

    Actually, I was thinking more along the lines that by filing so many fake DMCA takedowns that the number of persons involved would preclude charges being laid, while insuring that a bit of public information on the subject might reach the media and thereby embarrass the government into policing the system properly.

    I'd think that if 200,000+ individual DMCA notices were filed against abusers like Disney, Warner Bros, and their ilk, over a one week period, it would be obvious that it was simply the public trying to send a message.

    If it failed to make Law Enforcement and the Courts start to do their jobs, perhaps it would at least send the message to the abusers that the tables can be turned if they continue to abuse the system.

    I have to admit though, that the rogue US Fed is now so unpredictable that it might just arrest and incarcerate half a million US citizens, simply to protect the DMCA system and its abusers - many of whom appear to be pulling the strings of government from behind the scenes.

    It is indeed difficult to play poker with a cheat who holds all the cards.

     

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

  33.  
    icon
    Sheogorath (profile), Feb 18th, 2014 @ 8:44pm

    Re: Re: Re: Public Action

    I have to admit though, that the rogue US Fed is now so unpredictable that it might just arrest and incarcerate half a million US citizens, simply to protect the DMCA system and its abusers.
    Which is exactly why I suggested that people outside the US do it. The worst punishment I know of for abusing DMCA procedures is a large fine, something that would be difficult at best to enforce, even under the unilateral extradition treaty currently in place between the UK and the US.

     

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


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