As much as I appreciate and highlight the importance of the DMCA's safe harbors, there remain many troubling parts of the law. The notice and takedown process is particularly questionable, in that it involves shooting first and asking questions later. When we're dealing with a system that gets so many false notices, taking down first seems kind of crazy. David Canton points us to the news of a copyright lawyer and photographer, who had her entire site shut down by GoDaddy (of course), after it received a single, totally bogus, DMCA claim. Apparently someone claimed copyright on a photograph that the blogger, Carolyn Wright, had taken herself. The DMCA claim was just wrong. And while GoDaddy is required to remove the specific infringing content if it wishes to retain safe harbor protections, it appears to have gone way beyond that in shutting the entire site down. Thankfully the situation was resolved when Wright reached out to the person sending the letter, who apologized and withdrew the claim.
That said, get ready for this kind of story becoming a lot more common if SOPA or PROTECT IP becomes law. Totally bogus takedowns happen all the time under the DMCA but are usually (though not in this case, apparently) limited specifically to the infringing content. Under SOPA you'll see a lot more drastic action, cutting off sites from ad revenue or payment processing -- with no requirement to turn them back on, even if a counternotice is filed. This is exactly why a private "notice" provision in SOPA is so scary.
Sorry Tricorder fans, Tricorder has been deleted from the Android Market by Google, at the demand of CBS's legal weasels. This all happened without any discussion or warning -- I was simply notified after the fact.
Since I don't have legal weasels of my own, or the time to deal with this, that's it for Tricorder.
It's apparently the graphical design that's at issue, not the name. According to Wikipedia, "Gene Roddenberry's contract included a clause allowing any company able to create functioning technology to use the name". Now that GR is dead, I guess CBS believes they own swoopy curves.
I do wonder if there's a real copyright issue here at all, though I understand why the developer doesn't feel like fighting it. Still, it's a real shame that CBS feels the need to attack Star Trek fans for no good reason. Of course, given similar anti-fan statements from Eugene Roddenberry, it makes you wonder if the trail from CBS leads back further.
Lori Grunin points us to a slightly odd post from a lawyer, Carolyn Wright, who works with photographers, concerning Google's well known policy of forwarding all DMCA takedowns to ChillingEffects where they're aggregated and made available to the public. This serves a dual purpose. Beyond just providing more info for the public on these takedown notices, it allows Google to point people to ChillingEffects when a search result has been removed due to a takedown request. Now, we have seen some try (and fail) to block Google's ability to forward such notices by claiming copyright on the notices themselves, but that's an unworkable strategy.
However, I have to admit that I'm confused about Wright's claims in the post. She discusses a photographer, Jason Wilder, who sent a DMCA take down notice to Google, but asked Google not to forward his takedown to ChillingEffects. Google told him that it was the company's official policy in order to remain transparent about any content removed from the site, and saying that if Wilder doesn't want the noticed passed along to ChillingEffects, then he can rescind the notice. Wright seems to think this somehow opens Google up to liability:
Nothing about 17 USC 512 requires that the complainant agree that his notice be made public and Google’s policy is not the law. So by refusing to remove the copyrighted material, Google is now potentially liable for the infringement. Now that’s cold.
It's true that nothing in the law requires that the notice be made public... but that's meaningless. Nothing in the law requires that the notice be kept private if the issuer requests it, either. Google is free to do whatever it wants with the notices, including making them public and forwarding them to whomever it wants. Nothing in that violates the DMCA. Furthermore, it accurately explained to Wilder that if he didn't want it public, he shouldn't file a notice. Again, that's entirely accurate. So what about any of that opens up Google to liability? The way you get hit with liability under the safe harbors is if you ignore a takedown request. But if Wilder rescinds his request, then there's no longer a request to obey. So how does this create liability for Google?
Apparently Caleb Followhill from the band complained a bunch about feeling sick and saying that his voice was shot. At some point, he announced that he was going backstage to vomit and that he'd be back later -- which didn't happen. The rest of the band apologized (profusely) and later hinted at "bigger" problems with the band. Lots of folks in the audience were upset about all of this. Either way, a bunch of videos sprung up on YouTube. But as quickly as they go up, Vector Management appears to be pulling them down. Now it's possible that some of the videos include clips of copyrighted songs, but the whole thing certainly seems pretty questionable, and looks like an attempt to stifle the video of what happened. Assuming that most of the videos only included a bit of music, but focused on Caleb's statements, it seems like there would also be strong fair use claims.
Now, I did just find the following video, which does not appear to include any music, but merely clips out the statements made by Caleb and then other members of the band. It's still up as I'm posting this. If it remains up, then perhaps the takedowns are only directed at clips with actual music in them. Even so, the whole thing feels sketchy and, of course, is only drawing more attention to the whole story.
One of the issues with the DMCA is that there's very little incentive to avoid sending bogus DMCA notices. There is 512(f), which says that if you misrepresent that content is infringing, you are liable for damages, but it's rarely used. And, now it's been limited further in a court ruling. Earlier this year, we wrote about a silly copyright fight concerning virtual horses and virtual bunnies in Second Life, with one company claiming another company copied its "breedable" virtual animals and that was infringement. It issued a takedown. After it was determined that the copyright claim was ridiculous (there was no direct copying), the company who was on the receiving end tried to claim that there was a 512(f) violation in the original takedown. However, the court dismissed that claim because Second Life never complied with the takedown, saying:
limiting suits for damages to those caused by an actual takedown is a less effective deterrent than allowing suits based merely on the filing of a false Takedown Notification. But the statute is unambiguous in entitling an alleged infringer to damages caused “as the result of the service provider . . . removing or disabling access to the material"
In other words, if the service provider doesn't follow through on the takedown, there's no punishment for filing a bogus DMCA notice. Too bad.
Separately, I hadn't realized just how ridiculous the DMCA notice was. It didn't just ask for a takedown of the virtual animals itself, but of the food for the animals, in order to make the virtual animals die. This snippet from the ruling struck me as amusing:
The Notification sought, among other things, the
removal from Second Life of Amaretto's virtual "food" and "water." Had the takedown
occurred, the virtual horses would have "died" from "starvation" and/or "thirst" within 72
Yup. Using copyright to "starve" to "death" virtual animals. I'm sure that's exactly what our Founding Fathers were thinking about when they wrote the Constitution.
Well, this is unfortunate. Google's been getting more and more pressure from the US government to censor websites based on accusations (not convictions) of copyright infringement, and it appears that Google is caving more and more to such requests, rather than standing up for user rights and the basics of how copyright works. It did that bizarre and really poorly thought out blocking of certain autocomplete words. Then there was the absolutely awful copyright school that perpetuated certain copyright myths and made "fair use" sound like the negative side effects you might get when you take some prescription medicine. On top of that it got a lot of attention for deleting Grooveshark's app from the Android Marketplace, but further research shows that it's been dumping a bunch of music apps.
First of all, you may recognize the name Rojadirecta. It's the site that was found to be totally legal (twice) in Spain, but still had its .com domain seized by Homeland Security. It already had the .es domain and now that's become it's main site. Now, you could potentially see someone issuing a DMCA takedown over that site, but the notice in question was not actually a DMCA takedown notice at all, but a notice of a violation of AdSense. If that's the case, then you could see it lead to a cancellation of that AdSense program, but not a block from the index.
Making matters even worse, MLB's complaint is wrong. The AdSense in question was not even on Rojadirecta's site. Rojadirecta is a linking site, and the complaint was actually about ads on a site Rojadirecta linked to. And yet, because of this Google blocked the Rojadirecta site. At a time when governments around the globe are also getting upset with Google for what they deem to be arbitrary listing decisions (and yes, I agree that this political argument is silly), you would think that Google would be more careful than to completely dump a site based on a questionable AdSense policy violation claim.
It was just a few months ago that we noted how music publishers were annoyed at the International Music Score Library Project (IMSLP), which has aggregated music scores of public domain music. We noted that it occasionally received copyright threats, and now it's received another one. The UK Music Publisher's Association (note: not a specific publisher) issued a DMCA takedown over some public domain music (Rachmaninoff's The Bells), and GoDaddy (as it seems to regularly do) took down the site. Nice of them.
IMSLP and its supporters are apparently looking to see if they can file a copyrfraud lawsuit against the UK MPA for the bogus takedown. Even more bizarre is that the MPA is now trying to hide the fact that it sent the takedown in the first place, demanding that the director of IMSLP takedown the takedown notice. Amusingly, in the response to the MPA, the person from IMSLP notes that their last email was sent to the imslp.org domain... which is useless:
I note that one of the receipients of your 21/04/2011 11:23 email is firstname.lastname@example.org. Because you caused, via a bogus DMCA takedown notice, imslp.org to be removed from the internet, that email address will not work.
Of course, the punishment for filing false DMCA notices is pretty minimal, so these sorts of situations will keep happening. It's really too bad that GoDaddy took down an entire site over a single DMCA notice, but the law encourages that sort of censorship approach.
You may recall last fall we wrote about one of Dan Bull's excellent tracks commenting on copyright issues, called Death Of ACTA. You can see the video for the song here:
Dan Bull has embraced file sharing -- not surprisingly, given the subject matter of many of his songs -- and placed the song on various sharing networks and sites, including the cyberlocker Mediafire. Obviously, he did so on purpose, with the desire that more people hear the song. However, he noted with a bit of irony recently that the song on Mediafire was taken down due to a copyright claim. Considering the whole song is about the overreaching efforts of copyright as censorship, this seems pretty ironic.
Dan was kind enough to forward on the takedown message... and it's a total mess. There's simply no useful info in it other than that a French company called TF1 wants the file (and a bunch of others) off of Mediafire as quickly as possible. Now, it's not clear what the issue is here, but it's not difficult to take a guess. "Death of ACTA" is obviously a play on Jay-Z's "Death of Autotune" Jay-Z's song features prominently a sample of the song "In the Space" by French film composers Janko Nilovic and Dave Sarkys. It's quite likely that Jay-Z licensed the sample. Not surprisingly, Dan Bull did not, but that's the nature of creating a parody song.
Also, since all of this is happening in Europe, there aren't fair use laws. Dan would probably have a stronger argument in the US. In Europe, it's a bit more of a crap shoot. Of course, the whole thing is pretty silly if you think about it. Is there any less demand for "In the Space," due to Dan's song? Anyone who suggests that's the case is not in touch with reality.
In the end, though, how ridiculous is it that a song that's all about the excessive nature of copyright law ends up being subject to a takedown notice itself? It seems to encapsulate everything that the song is talking about as being ridiculous concerning copyright law. The song is, of course, still available in lots of other places, though it will be interesting to see if TF1 starts going after it elsewhere as well. I'm guessing that each takedown will only draw that much more attention to Dan's song and the ridiculousness of copyright law today, if it creates a situation where a clear commentary about copyright law gets taken down... by copyright law.
The JAWA story continues. Yesterday, we posted about accusations from Verizon Wireless that JAWA was effectively "cramming" premium SMS charges onto users' bills, which came about following an investigation (and eventual lawsuit) by Texas regulators. The blog AZDisruptors.com has been highlighting some of the accusations against JAWA while most of the press had kept quiet on it. However, it appears the folks at JAWA don't like that. They sent a cease-and-desist to the operator of the blog (embedded below), Hamid Shojaee, that makes all sorts of accusations against him; claiming defamation, false light invasion of privacy, tortious interference with business relations and criminal harassment.
The letter also, oddly, accuses Shojaee of being a cyebersquatter, despite that having nothing whatsoever to do with what's being disputed here, and Shojaee clearly explains why he has the various domains he has. As for the specific legal threats against Shojaee, it's hard to see how the latter claims have any merit. The defamation claim is the key one, but considering that both the Texas attorney general and Verizon Wireless's lawsuits against JAWA seem to make similar claims, it's difficult to see the defamation claim standing. On top of that, since JAWA's CEO Jason Hope is clearly a public figure, the standard for defamation is much higher and, almost certainly, was not met by Shojaee. I'm guessing that JAWA wouldn't even want to get into the discovery phase of any such lawsuit -- meaning this threat letter feels a lot like a SLAPP. Arizona has an anti-SLAPP law... but it is very limited and almost certainly doesn't apply here, unfortunately (all the more reason for a federal anti-SLAPP law).
Separately, JAWA's lawyers contacted AZDisruptors.com's host, SquareSpace, and registrar, GoDaddy, demanding the site be taken down for these reasons. Ridiculously, SquareSpace complied -- without even contacting Shojaee first. This is problematic for a variety of reasons. First of all, SquareSpace has no legal requirement to takedown a site upon accusations of defamation. Section 230 protects it against liability in those circumstances. But, even more to the point, the fact that it would take down the site without first even hearing from Shojaee is really problematic and suggests that SquareSpace should not be trusted as a hosting provider.
Either way, Shojaee is fighting back. He got SquareSpace to put the site back up and has responded to JAWA's accusations against him with a lawyer, who seems well equipped to respond to such bullying. I've embedded the response letter below, but just a snippet:
Your letter, its accusations, and its
conclusions are shocking. And you are wrong in every respect...
I can't close a letter without pointing out the obvious: your letter, instead of addressing Mr. Shojaee's accurate claims about Mr. Hope's business activities, maligns his character and accuses Mr. Shojaee of "fail[ing] to disclose your true motives to your readers." You then go on to list a number of web domains that Mr. Shojaee legally owns in connection with a legitimate business purpose.
The idea that Mr. Shojaee has done anything to apologize for is laughable. It is Mr. Hope who has built a company based on deception; it is Mr. Hope who has illegally used technology to bilk consumers out of millions; it is Mr. Hope who has chosen to interfere with my client's business...
Sounds like the attempt at intimidation isn't likely to work... Oh, and in the meantime, the press is starting to pick up on the story as well.