Almost exactly two years ago, we discussed a strange story in which video game publisher Bungie sued a bunch of John Does specifically for inputting fraudulent DMCA takedown claims on YouTube videos that contained Bungie content. Those notices purported to be from Bungie in some cases, but even Bungie’s own YouTube channel was hit by some of them as well. Later on, Bungie unmasked one of the Does as YouTuber Lord Nazo, real name Nicholas Minor, as one of the perpetrators of these takedown notices. In those discussions, we mentioned that while Bungie will come out looking like the good guy here if its claims were correct, the real story here is just how wide open for abuse YouTube’s DMCA takedown process is.
In a dramatic turn of events, the legal battle between gaming giant Bungie Inc. and online gamer Nicholas Minor, famously known as Lord Nazo, has reached a surprising conclusion. After accusations of false copyright infringement, the two parties have finally settled, bringing an end to the intense courtroom drama that has captivated the gaming community.
During the legal proceedings, Minor admitted to creating a phony email address and submitting the video removal requests. His actions were reportedly motivated by a desire to highlight the lack of transparency in YouTube’s takedown process, following the removal of one of his own videos. This revelation added a layer of complexity to the case, shedding light on the broader issues surrounding online content moderation.
Minor’s actions can’t be justified by this motivation, of course, but it’s hard to argue he didn’t effectively make his point with all of this. Sure, he got caught and ostensibly is going to suffer some measure of punishment for his actions, but that’s because Bungie was his target and Bungie has the resources to force this sort of action. Think about all the other individual or smaller entities out there that suffer from these same fraudulent-type actions that don’t have the resources to fight back, or don’t want to bother doing so. In those cases the bad actors get away with their bad actions and none of us ever even hear about it.
Even for those larger entities, navigating all of this isn’t easy.
Bungie’s lawsuit underscored the challenges faced by content creators and gaming companies in navigating the intricacies of copyright law and online platforms’ policies. The false infringement complaints not only disrupted Bungie’s community of online gamers but also prompted a reevaluation of YouTube’s takedown procedures. The resolution of this case may set a precedent for future disputes involving copyright infringement and online content moderation.
And to its credit, Bungie said at the start of its legal action that YouTube’s DMCA process doesn’t sufficiently protect for this kind of fraudulent behavior. I have yet to hear of any massive changes made by YouTube as a result of this instance and others like it.
So for today, the status quo remains. But it certainly shouldn’t long term.
On Monday, I saw Elon Musk tweet the following, and initially thought that he might have actually made a good policy decision for once, and planned to write up something about Elon doing something right (contrary to the opinion of some, I’m happy to give him credit when it’s due):
Punching back against DMCA abusers is a good policy (and one that the old Twitter was willing to go to court over — though very early Twitter was less good about it). So, in theory, suspending accounts of those who engage in “repeated, egregious weaponization” of the DMCA seems like a good policy and Musk should be given kudos if that’s how the policy is actually put into operation.
Though, the actual details here are kind of a mess, and it’s possible that instead of putting in place a good policy, Musk might have (instead!) opened up Twitter to potentially massive liability.
This came about over a dispute between two Twitter users, but the details are now gone, as Twitter suspended one account, and it appears the other account deleted all the tweets about this dispute (though I’ve been able to dig up a few screenshots).
One account, @Rainmaker1973, is one of thousands of aggregator accounts that basically find other people’s content and post a constant stream of it to their feed. Rainmaker has 1 million followers, so is a pretty large account. Looking over Rainmaker’s feed, you can see that the account links to source material (through tracked buff.ly links). When it’s posting videos, it appears to embed the original video, rather than re-uploading it, though the way Twitter handles that is sometimes a little confusing. It just puts a little “from @OriginalAccount” in small letters underneath the video, with a link to that account’s profile page, but not to the tweet where the original video was. I’ve never quite understood why Twitter handles video embeds this way, but it does. Here’s one example, with the Twitter-appended attribution highlighted:
For photos, that’s not how it works. You basically have to reuse the photos (and if they’re hosted somewhere else, upload them to Twitter). That’s what the Rainmaker account did here, with a photo that originated on Facebook:
Is that infringing? Eh… I’d say that the Rainmaker account has pretty strong fair use claims much of the time. The account also appears to lean towards public domain images (such as from NASA) and some Creative Commons-licensed images. But fair use is always fact-specific, so it’s difficult to say if none of the accounts tweets might violate copyright law.
What appears to have happened, based on what many others have written, is that the Rainmaker account posted a video from another account, @NightLights_AM, that specialized in images and videos of the northern lights. While these tweets have since been deleted, note that the video in the image does not show the little “from” line, as it would if it were embedded directly from Twitter.
Now, unfortunately, since it’s all deleted, we can’t see exactly how the video is embedded. Rainmaker says it’s embedded, not uploaded. It doesn’t have the “from” line at the bottom in that screenshot, but… it might still be from a Twitter embed, because Twitter (confusingly!) does not show that “from” line in the video if it’s being quote tweeted, as is the case here.
So, based on all that, there’s a decent chance that the DMCA notice was somewhat iffy. I recognize that lots of people don’t like aggregators like the Rainmaker account, but if he’s just using an existing upload from the official account as an embed, then it’s clearly not actually infringing.
It is quite possible, though, that most people don’t understand how video embeds of other Twitter videos work on Twitter (it’s confusing!), and so it wouldn’t surprise me if the NightLights account didn’t even realize it was an embed of the original, and out of frustrating of this large aggregator account getting all the traffic for its video, sent a good faith (but mistaken) DMCA notice.
In the now-deleted tweet you see above, the Rainmaker account says it reached out to the NightLights account, and NightLights asked for money (likely for a license). Again, assuming Rainmaker was just embedding, there is no need for a license. It’s literally just using Twitter in the way it was intended, and in a manner that NightLights already granted a license for. Somewhat confusingly, in a later tweet, the Rainmaker account claims that NightLights didn’t actually want money and instead said that NightLights was trying to shut down his account:
For what it’s worth, the guy behind NightLights told TorrentFreak that Rainmaker is misrepresenting their conversation, and that it was Rainmaker who first proposed paying, if NightLights would rescind the DMCA notice:
Mauduit informs TorrentFreak that after sending the DMCA notice to Twitter, Massimo initiated contact and suggested that he should pay an amount to have the report retracted “since the situation for him was so dire.”
Mauduit says that since the offer came Massimo, that doesn’t constitute blackmail. A few hours later Massimo accused Mauduit of blackmail on Twitter, Mauduit says.
“I asked him to compensate me fairly for the use of the material. So at that point, that was purely business related and politically correct,” Mauduit says.
Either way, Twitter’s head of trust and safety quickly told the Rainmaker account that, despite his fears, the company would not suspend his account:
This is also a good policy (so kudos to Irwin and Musk on continuing this aspect of old Twitter’s policies). She also noted in another tweet that the Rainmaker account “is not at any risk for suspension.”
Of course, “pirating / egregious illegal behavior” is somewhat in the eye of the beholder. And so is… “blackmail.” Yet, about an hour after Ella’s tweets, Musk himself noticed Rainmaker’s tweets and announced that he would “suspend” accounts for “blackmail.”
Again, in a vacuum, this could be good policy. Suspending egregious copyfraudsters who abuse copyright to shake people down or silence them makes sense. And DMCA abuse for extortionate behavior does happen unfortunately often. As does abusing the DMCA to silence others over non-infringing speech. We’ve covered many, many such cases over the years.
So, having a policy that pushes back on that abuse of copyright law is good —and another nice thing you can say about Elon Musk is that he’s been quite good about recognizing the problems associated with patent and copyright law. Other companies have pushed back on copyright abuses as well, such as how Automattic (the company behind WordPress, and also the company that hosts Techdirt) has spent years fighting back against DMCA abusers. But it has a clear process for doing so, rather than the whims of an impulsive owner.
In this case, though, Elon appeared to take Rainmaker’s (slightly confused) word for what happened, and flat out suspended (temporarily) NightLights for what appears to have been a good faith DMCA notice, followed by a discussion initiated by Rainmaker regarding payment.
As I was finishing up this article, the NightLights account was actually reinstated, though the guy says he’s now considering leaving the platform:
So, given all this, the concept behind the policy is good, but there’s not much evidence that NightLights was actually actually “blackmailing” Rainmaker. From what was public (and mostly now deleted), it looks more like the account mistakenly thought that its content was used in an infringing manner due, in part, to Twitter’s own confusing presentation of embedded videos, and filed a good faith, but mistaken, DMCA notice. When Rainmaker contacted NightLights to try to get the DMCA strike removed (out of a fear that it would take down the account), the began a discussion on a licensing fee, which again seems reasonable if NightLights actually thought the use was infringing.
Also, this seems to have no angered others who were fans of the NightLights account:
Once again, content moderation at scale is impossible to do well because people are going to be mad at you on both sides of the equation.
In the end, this looks like a lot of miscommunication across the board, in part from people who aren’t fully aware of how Twitter or copyright law actually work. The end policy — don’t put up with shit from those who abuse the DMCA process — is actually great. But it really doesn’t look like NightLights was abusing the DMCA, just confused about how Twitter worked.
And because of the somewhat less-than-well-considered way in which Twitter under Elon is acting, if NightLights had a legitimate claim (and again, I don’t think it does in this case), quickly suspending an account for filing a real DMCA claim could open up Elon and Twitter to pretty significant liability. Contrary to popular belief, companies that receive a DMCA notice do not need to take down the content. But if they don’t, they can no longer use the DMCA’s 512(c) safe harbor, which is a risk if the case went to court. So refusing to take down something upon notice is a legal risk, and the kind of thing a large company like Twitter would normally have a copyright lawyer review.
The other potential issue is that if Twitter makes it a habit to suspend accounts that send good faith or legitimate DMCA notices, it could very much open them up to claims that they do not have a valid “repeat infringer” policy, as required by 512(i). Suspending one account for sending a good faith DMCA almost certainly won’t trigger that issue, but having Elon flat out say that Rainmaker’s account “won’t be” suspended could be read to mean that Twitter is ignoring its repeat infringer policy with regards to at least that account. And, I could see copyright lawyers trying to argue that this is an example of how Musk is willing to ditch the 512(i) policy for accounts he likes. At the very least, you can bet that these kinds of impulsive policy decisions will be used in court by copyright litigants. Perhaps from Hollywood studios who noticed that, last fall, amidst all the turmoil, Elon’s Twitter seemed to be ignoring many DMCA notices about accounts posting entire Hollywood movies.
In short, impulsive decisions around DMCA policy, made without first going over things with an actual copyright lawyer, can open up a company like Twitter to quite a bit of liability. But this is the Elon Era, in which YOLO seems to be the general ethos, and if it happens to add to yet more legal liability? Well, just toss it on the pile.
For years, companies have been offering questionable services to downrank and bury information their customers don’t want surfacing during Google searches. And for years, these tactics have routinely involved abuse of copyright law, forged/faked court orders, and the filing of bogus lawsuits in hopes of securing default judgments from inattentive judges.
This is more of the same. Documents leaked to Forbidden Stories and shared with the Washington Post have uncovered the unsavory tactics (and even more unsavory customers) of Eliminalia, a Spain-based reputation management company with one hell of an origin story. This is from the Washington Post’s extensive report on the leaked documents, which details how Eliminalia founder Diego “Didac” Sanchez came to believe this company must exist:
When he was 12, he accused a local businessman of molesting him multiple times. The man was convicted of sexual abuse in a highly publicized trial and was imprisoned in 2007.
Years later, as a teenager, Sánchez publicly recanted his story, saying he had made it up. A panel of judges declined to overturn the conviction, however, citing additional evidence in the case, court records show.
Sánchez got news accounts of the abuse allegations removed from the internet, he wrote in the autobiography. He did not say how he did it, or what specifically was removed, but he wrote that he recognized a business opportunity.
Nothing in the documents suggests Sanchez decided to go into an extortion-like business by drumming up nasty allegations and making victims pay to have them removed from the internet. But that set of paragraphs sure seems to suggest it might have been a viable option.
Eliminalia does not seem to engage in any overt criminal activities. Instead, it appears to engage in a bunch of dishonest tactics. These tactics include creating fake sites to host (and backdate) copied content so the original could be targeted with bogus copyright claims. Here’s how this tactic works, as described in the Forbidden Stories article, which details interactions between a targeted publisher of critical journalism (Mexican reporter Daniel Sanchez) and the bogus persona concocted by Eliminalia (Humberto Herrera Rincon Gallardo) to get the content removed.
In January 2020, Gallardo filed a claim with Digital Ocean, Pagina 66’s US-based hosting provider, alleging that Sánchez had copied his content illegally. As proof, Gallardo linked to a third-party site that had published a replica of Sánchez’s piece, but with a falsified earlier publish date and fake author: Humberto Herrera Rincón Gallardo.
This time, the strategy worked. Digital Ocean ordered Sánchez to remove his article from Página 66’s site, or it would go black.
That was the tactic Eliminalia chose to go with after impersonating the EU Commission with a bogus takedown letter claiming GDPR violations: committing apparent perjury by faking up a copyright complaint.
Eliminalia also creates bogus news sites by the dozens, flooding the internet with low-value posts supposedly written by people who want worse content written about them buried.
Researchers from Qurium linked the 600 fake news websites to Eliminalia’s parent company, Maidan Holding, according to Tord Lundstrom, Qurium’s technical director. The websites’ IP addresses — each a string of numbers identifying where a site is hosted — are clustered together sequentially, Lundstrom said, and registration data from the websites’ hosting providers show that the IP addresses were assigned to Maidan.
The fake news sites contain real news copied from legitimate media organizations, and many have names that are similar to real outlets — the London New Times, CNNEWS Today and Le Monde France. But tucked amid those headlines are at least 3,800 articles that prominently feature the names of customers identified in the Eliminalia records…
So, the sort of stuff we’ve seen before, only on a much more massive and, apparently, lucrative scale. But given the company’s origins — a man trying to right a wrong he’d caused by wiping the internet of his false molestation accusation — Eliminalia seems more than willing to help far less altruistic people cover up evidence of their wrongdoing.
Its U.S. clients included a popular reality-TV personality publicly accused of sexual misconduct and a California biotech entrepreneur who had been convicted of financial fraud and is now fighting charges he hired a hit man to kill a business associate. The leader of a major religious charity in Chicago that faced criticism over its executives’ salaries also turned to Eliminalia, the records show.
Eliminalia did work for an Italian spyware company that had been fined for selling surveillance technology to Syria’s autocratic regime, and for a Swiss bank that had drawn public scrutiny over Venezuelan clients who were suspected of money laundering. It also worked on behalf of a well-known traveling circus clown who had been convicted of sexually assaulting a 14-year-old girl in Switzerland.
Here’s more, from Forbidden Stories’ reporting:
Forbidden Stories identified Eliminalia clients in 50 countries across five continents. The leak of around 1,500 current and former clients includes details of Eliminalia’s business dealings with a medical doctor who reportedly operated a torture center during Chile’s dictatorship and was found guilty of homicide; former bank officials at Banca Privada d’Andorra, accused of money laundering for corrupt Venezuelan officials; and a Brazilian businessman implicated in a global prostitution network, among others.
And now that this has been exposed by the documents and the great reporting at both of the above-mentioned sites, Eliminalia is attempting a disappearing act of its own. Reporters visiting its Barcelona office were informed it was now a company called “Idata Protection,” a (you guessed it) data protection service in no way affiliated with the work performed by the entity that owns it, Eliminalia. Its founder was also nowhere to be found.
Ugly tactics and even uglier customers. That’s not surprising. The entities that tend to seek out reputation management help are those that have destroyed theirs by being awful. For a little while, dodgy takedowns and black hat tactics actually get the job done. Sooner or later, though, it almost always seems to fall apart. But just as much as disintegration is inevitable, so is the rise of another company just as awful to take its place.
It should come as no surprise to regular Techdirt readers that the DMCA takedown process is not only wide open to fraud and abuse, but that those avenues are regularly used in real life for just those purposes. Takedowns to silence criticism, takedowns to try to steal traffic from others, or takedowns or monetization claims just to get some paltry amounts of streaming revenue: the point is that this shit happens all the time. What absolutely does not happen with any frequency is the folks behind these bogus actions getting punished in any way for their behavior.
And so when it does happen, it’s worth highlighting it, putting it on a podium, and trying to have it become the norm rather than the exception. To that end, let’s highlight YouTube actually banning an account that appeared to be sending fraudulent DMCA notices.
Yesterday, the owner of the “Musical Creator” channel complained that their channel had been terminated after submitting a copyright takedown request. The operator of the channel doesn’t appear to be a native English speaker as the comment below shows, but it’s clear that they disagree with this decision.
“My youtube channel MUSICAL CREATOR has been terminated due to inlegal information copyright infringement. But I not violating any policy of youtube, I don’t know how my channel is terminated I filled out all the information legal. I want to get back my channel again,” the operator writes.
Now, a couple of things to say here. First, the channel’s name is “MUSICAL CREATOR”? Hmm, okay, totally doesn’t sound like the kind of thing you would create just to send DMCA notices and try to monetize others’ content. And we don’t have any details from YouTube as to what specifically was the issue with whatever takedown notice MUSICAL CREATOR sent. Instead, all we have is this from YouTube’s notice directly.
“We are concerned that some of the information within this legal request may be fraudulent,” YouTube’s response reads. “Please understand that YouTube receives a large number of fraudulent copyright takedown requests, and we take abuse of that process very seriously.”
While that doesn’t tell us much or let us vet out whether fraud was actually committed or not, it’s worth keeping in mind again that YouTube takes very little action on this sort of thing generally speaking. By which I mean that the fact it took action in this case leads me to believe YouTube thinks it’s on very, very solid footing here.
As a result, the MUSICAL CREATOR account is down. Anyone going to its page is simply told that the account is offline due to “a violation of YouTube’s Terms of Service.”
Again, it’s hard to be completely assured that YouTube’s actions in this case are appropriate… but I suspect they are. And, purely as a matter of percentage cases, the fact is that YouTube and other platforms have historically been so vastly on the side of those issuing DMCA notices instead of the potential victims of fraud that it makes stories like this unique.
It was only a week or so ago that we discussed the latest example of the type of fake DMCA notices that Google gets to delist certain URLs from search results. In this instance, a couple of factors made these DMCA notices even more problematic than usual. For starters, they claim to be coming from the U.S. Copyright Office, which very much does not send in DMCA notices like this. On top of that, the notices claim they are being sent by the U.S. Copyright Office on behalf of the Video Industry Association of America which, as I noted in my original post, doesn’t seem to actually exist. Finally, and perhaps most importantly, these are notices for Section 1201 claims, which deal with anti-circumvention aspects of copyright law, that target mostly stream-ripping sites and sites that cover or guide legit uses of those sites. Notably, Google does not have an appeal process for 1201 notices, leaving anyone who got delisted basically screwed.
Well, now the mystery somewhat deepens. The Section 1201 DMCA notices have continued to flood Google, but now they are being supposedly sent directly by the Video Industry Association of America, with whoever is sending these dropping the pretense that they’re coming from the US Copyright Office. But that isn’t actually clearing much up other than to highlight, again, that the organization doesn’t actually exist and is coming from Russia.
A mysterious group called the ‘Video Industry Association of America’ is trying to wipe the homepages of dozens of reputable sites from Google search. The targets, which stand accused of violating the DMCA’s anti-circumvention policy, include Verizon, Pinterest, and Engadget. Google says that it’s aware of these fraudulent notices but, thus far, they are not without damage.
The ‘American’ organization starts one request off in Russian and finds it hard to construct proper English sentences. In another notice, it complains of sites and apps that circumvent the copyright protection of streaming services, while classifying these as “software cracks.” Things get even more problematic when we look at the URLs that are reported. While these include tools such as DVDFab and YouTube-rippers, which some rightsholders see as problematic, various legitimate sites are targeted as well.
So what’s going on here? Well, it seems that whoever is behind these DMCA notices is taking shotgun approach to them. Anything that has to do with providing or informing the public on matters of stream-ripping, legit or otherwise, are being targeted. Plenty of other tech news organizations have been targeted as well, such as Engadget and CNET. Most of the takedown requests have gone ignored by Google, but several have not. Many smaller tech sites have been delisted as a result of all this.
For at least one of the sites, Google has acknowledged that the delist request was not legit, but also said there is no current appeals process.
Fossbytes reported the issue to Google, which informed the site that there is no official counter-notification process for these anti-circumvention takedowns. As such, the URLs remain deindexed for now.
“There is no formal counter notification process available under US law for circumvention, so we have not reinstated these URLs,” Google replied, requesting a detailed explanation from the site.
Meaning the onus is still on the victims of this crap to get themselves re-listed. And, once TorrentFreak got its hands on a copy of the takedown request, it illuminates how blatantly fraudulent all of this is.
This reveals some interesting details that are not available in the Lumen database, including the name, email address, and geolocation of the ‘Video Industry Association of America’ representative.
As can be seen above, the sender is actually located in Russia and identifies itself as “Wolf Fang,” which isn’t a typical name, not even in Russia. The email address, which we won’t publish, comes from Gmail and references another animal’s fangs.
Again, what’s going on here? Is this some coordinated Russian effort to delist a bunch of prominent or otherwise American news sites? Not likely. Instead, this is more likely a form of the kind of fraud-based attack we’ve seen from overseas sites that abuse the DMCA process in order to take down both its competitors and references to competitors wherever possible.
For now, it remains a mystery who’s behind these notices. It wouldn’t surprise us if the “Video Industry Association of America’ is actually a direct competitor of the stream-ripping and DRM circumvention tools that are reported.
This is a strategy we have seen several times in the past. A competitor targets URLs from competing apps and sites, so their own site will end up higher in Google’s search results.
In other words, the only real good these bullshit DMCA notices are doing is to further highlight the wide open avenues for fraud and abuse in our current DMCA takedown process.
We have seen and covered a great many ridiculous copyright issues here at Techdirt. It is, after all, sort of our thing. Still, some attempts at enforcing copyrights are so ludicrous that they take your breath away. Now, granted, often times the most egregious of these stories arise out of the use of automated bot systems that troll all the places for copyright infringement and often times get it completely wrong. But that isn’t so much an excuse for those situations as it is a spotlight on how brutally terrible the current iteration of copyright enforcement has become and how despicable it is that the wider copyright industries just shrug their shoulders at all the collateral damage they cause.
And then there’s the moon. I know, I know, you’re thinking, “The moon? Is Timothy having another stroke while writing a post?” First off, my personal health is none of your concern. And secondly, nope, because a video recording of the moon as seen from Greece, which included no audio, was blocked all over the place due to a copyright claim made by Universal Music Group.
British filmmaker Philip Bloom recently filmed the Moon during sunset Skiathos in Greece. After sharing it on social media, he was surprised when the video was blocked due to a claim by Universal Music Group, which claimed copyright to the generic shots of the Moon. Here’s the audio-less video that Bloom shared to his personal Facebook account while on his holiday:
Yup, that’s it. So, how did this get flagged for copyright by UMG? Well, according to the block notification, UMG says the video contains “30 seconds of video owned by UMG”. How? Well, who the hell knows. If I had to guess, I would speculate that there is some music video out there or something that also contains footage of the moon and that somehow has resulted in an automated system flagging this video of the moon as copyrighted content.
But, just so everyone is clear, UMG does not actually own footage of our nearest celestial neighbor. The person who filmed the footage, filmmaker Philip Bloom, is understandably not pleased.
“I uploaded some shots of the moon to Facebook late last year shot with the Canon R5 but it was a 2/3rds moon,” Bloom tells PetaPixel. “It looks like their AI is looking for full moon shots.”
Bloom then filed a dispute against the copyright infringement block, explaining to Facebook: “It’s a shot of the moon I personally filmed tonight!!! UMG doesn’t own the moon!”
But because, again, the way copyrights are enforced currently is a goddamned nightmare, the footage is still offline for those social media channels in all those countries while Bloom is going through the appeals process. And it’s very much worth considering that this isn’t an isolated case, either.
Bloom says that after he shared about what happened on social media, one of his followers shared that the exact same thing happened to them.
And so here we are. During the appeals process for Facebook at least, it appears that the assumed state of things is such that UMG owns the copyright on footage of the moon. If the fact that the setup of the DMCA and our enforcement of it allows this result makes any sense at all to you, then perhaps you’d be better off living on UMG’s moon.
We’ve done more than our share of posts in the past about the problems within the DMCA takedown system as currently practiced. The reason for so many posts is in part due to the sheer number of problems with how this all works. For starters, when notices go out to search engines like Google to delist “problem” URLs, those notices are often times generated by automated systems that unsurprisingly result in a vast majority of notices targeting URLs that are non-infringing. As in, over 99% of those notices. And even once we get past the malpractice of using automation buckshot notices that result in an incredible amount of collateral damage, we then have to add the wide open avenues for fraud and abuse of the DMCA system. That type of fraud runs the gamut, from trolls merely trying to cause chaos for the fun of it to competitors of certain forms of content trying to hurt the competition. In the immortal words of former NFL coach John Fox: “It’s all a problem.”
And, on the fraud and abuse side, it’s such a problem that perfectly legit URLs can get delisted by Google due to a request from “The U.S. Copyright Office”, even though that office doesn’t make those sorts of requests.
Google has received several takedown notices that claim to come from the ‘U.S. Copyright Office’, requesting the search engine to remove ‘problematic’ URLs. The Government body, which is generally not involved in copyright enforcement, informs TorrentFreak that it has nothing to do with these notices. Unfortunately, Google didn’t immediately spot the imposter.
The Copyright Office is not supposed to take sides in these matters. So, we were quite surprised to see its name on several takedown notices that were sent to Google over the past few days.
The takedown requests are not typical ‘Section 512’ notices. Instead, they point out sites that circumvent technical protection measures, which is in violation of the DMCA’s ‘Section 1201.’ That’s also how Google processed them.
And process at least some of them, Google did. The notices claiming to be from the Copyright Office indicated they were sent on behalf of the Video Industry Association of America, which doesn’t appear to exist based on a Google search I performed. Even if it does, the Copyright Office is not a party to these sorts of takedown requests on behalf of any organization. The URLs targeted appear to be mostly related to stream-ripping sites, but not just sites that offer that service. Instead, some of the URLs targeted merely mention sites that offer stream-ripping services, which is how several TorrentFreak posts got targeted.
Whoever is doing this, it is most certainly not the Copyright Office.
This suspicion was confirmed by the U.S. Copyright Office. A spokesperson informs TorrentFreak that the notices in question were not submitted by them.
This doesn’t mean that the takedown requests were ignored by Google. While our links are still indexed, several of the URLs listed in the notices have indeed been removed because of the notices, which is a problem.
It’s a huge problem, actually. In fact, it demonstrates quite well how broken the current DMCA system has become. The fact that this sort of impersonation is so easy is an issue. The fact that Google is so inundated with these types of requests, which again are overwhelmingly illegitimate, that it cannot review them thoroughly enough to notice the clear impersonation of the Copyright Office at work here is another issue. And the fact that the DMCA process is obviously viewed by some bad actors as a wide open tool to attack their own competition is yet another issue.
And, notably, there isn’t even an appeal process for Section 1201 takedown requests.
Unfortunately, there is no counter-notification option for ‘Section 1201’ takedown notices. This means that sites and services that are affected by these bogus notices have no official appeal process they can use.
But perhaps the U.S. Copyright Office can help with that?
Or maybe someone can just pretend to be the Copyright Office and help. You know, on its “behalf.” It works for the bad actors, after all.
First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies — which are quite common in many courthouses — are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).
Soon after reports of the speech came out, a recording of the hearing showed up on YouTube — in violation of the court’s rules. If you go to the link now, it says the recording was taken down due to “a copyright claim by Superior Court of California, County of Los Angeles” (takedown first spotted by the Twitter account @beka_valentine).
?Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,? read the announcement, which also detailed the rolling back of other COVID-19 protocols. ?The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court?s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.?
As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:
Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, ?Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.?
When asked what is the court?s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: ?Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.?
But… notice what is not included in the list of potential liabilities? Copyright. That’s because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it’s difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act’s prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.
On top of that, it’s hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that — even with the prohibition on recording — in the copyright context, there would be a strong fair use defense.
And so I understand why the court doesn’t want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That’s copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn’t mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.
I would assume big corporations have the funds to hire Top Legal Minds, but what do I know? Maybe I’m just making this assumption because it seems like the sort of thing you should do when you have lots of capital and a plethora of brands to watch over.
Kellogg’s — the manufacturer of Cheez-It snack crackers, along with hundreds of other foodstuffs — is no stranger to wielding IP law like a defective, factory-second bat. Every so often, its highly paid IP lawyers take a swing with it, but seldom manage to injure anyone but themselves and the company they represent. Kellogg’s has tried to assert IP dominance over toucans and Mayan imagery in the past. More recently, it went after an Australian tennis player who branded himself “Special K.”
Its latest move is something else entirely. I mean, it’s just as dumb but it involves copyright rather than trademarks. And it does involve the Streisand effect, which means the thing it hoped to nuke out of existence with a bogus DMCA takedown is about the only thing people see when they view responses to the Cheez-It Twitter account’s tweets.
Back in late April, Cheez-It offered up some free backgrounds for snack fans to use as video chat backgrounds.
Pro-tip: Liven up your video chat with #CheezIt crackers. Download these backgrounds now and let the fun begin. pic.twitter.com/1WHyjwcNQT
We all know what happens when you give the internet a gift. Someone’s going to do something inappropriate with it. Twitter user @extremelysquid offered his sincere thanks to Cheez-It for its jpeg gifts by turning its prized cracker into a terrorist.
Here it is in all of its non-screenshot glory:
And here is Cheez-It’s response to Extremelysquid’s transformational artwork:
Up at Cheez-It HQ, it was presumably time for celebratory drinks. After all, eradicating a snarky menace with a bogus DMCA notice is the sort of thing that never backfires. Especially when backed with this immaculate legal rationale:
Let me just quote that for those of you who may not be able to see the image. Because it is breathtaking in its stupidity.
Description of infringement: A photoshopped image is showing our Cheez-It cracker hitting the Twin Towers. It’s inappropriate, violating our copyright, garnering attention, and we’d like this tweet removed from the platform.
Let’s see… even if it was “violating copyright,” the rest of this cites things that aren’t indicative of infringement or legal reasons for demanding the removal of content. “We don’t like it” and “a lot of people are seeing it” are not justifiable reasons for content removal. And it’s not infringement. It’s transformative use. Cheez-It may not like it, but it doesn’t get to nuke content just because it doesn’t like it.
Don’t ask and you shall still receive. Especially when you’ve done a dumb thing for even stupider reasons. Chances are if Cheez-It had ignored Extremelysquid’s tweet, many others would have done the same. Now its tweets are host to a variety of offensive imagery, all featuring the cracker that some suspect may have participated in the 9/11 attacks.
Techdirt has written a number of stories about museums and art galleries claiming copyright on images of public domain works. That’s really not on for institutions that are supposedly dedicated to spreading appreciation of the masterpieces they hold. The latest example of this unfortunate habit is a complex and fascinating tale involving the famous bust of Nefertiti, found a century ago, currently displayed in Berlin’s Staatliche Museen.
it acknowledged the existence of the Nefertiti scan and acknowledged that the organization was required by law to give me access to it. But it also declared that directly giving me copies of the scan data would threaten its commercial interests. The Egyptian Museum sells expensive Nefertiti replicas in its gift shop, and it implied that it needs to protect that revenue to finance its ongoing digitization efforts.
In museum-world parlance, this argument against open access is known as “the gift shop defense.”
In the end, it turned out that the money generated by using the scans to make replicas was pretty minimal. Reflecting the weakness of “the gift shop defense”, the museum sent Wenman a copy of the scans, but with a twist:
To mark their territory, [the German body overseeing museums] had inartfully carved a copyright claim directly into the flat underside of the 3D model. And without explanation, it had included a Creative Commons “CC BY-NC-SA” license.
A good analysis of the situation by Michael Weinberg points out why this is bogus:
Creative Commons licenses are copyright licenses. That means that if you violate the terms of the license, you may be liable for copyright infringement. It also means that if the file being licensed is not protected by copyright, nothing happens if you violate the license. If there is not a copyright protecting the scan a user does not need permission from a ‘rightsholder’ to use it because that rightsholder does not exist.
The central issue is whether a high-resolution 3D scan of an object unequivocally in the public domain, is also in the public domain. An earlier article by Weinberg explains that in the US it seems clear that producing an accurate scan of a public domain object is also in the public domain. It’s slightly less clear-cut in the EU, but even there 3D scans are unlikely to be protected. Moreover, one of the few good things in the generally awful EU Copyright Directive is explicit confirmation that material resulting from reproducing art that is in the public domain is also in the public domain, “unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation”. An accurate 3D scan does not fall into that category — something that EU Member States could and should make clear when they implement the Copyright Directive in their national legislation. Weinberg also raises the issue of “moral rights” — things like a right of attribution and a right of integrity:
While removing attribution or intentionally modifying the work to remove the fake [CC] license might create problems if the Staatliche Museen was the ‘creator of the work’ for copyright purposes, that is not the case here. The Staatliche Museen did not create any work that is recognized under US (and soon EU) copyright law. That means that there is nothing for the moral rights to attach to.
A post on the Creative Commons blog points out the use of bogus CC licenses causes collateral damage beyond simply misleading people about what they can and cannot do with material that is in the public domain:
Creative Commons licenses are tools to allow users to better understand what permissions are being granted to the public by the creator of the original work. When a CC license is misapplied, the ability of CC licenses to be a standard signal for communicating copyright permissions is undermined. Mislabelling works creates confusion among re-users of works and limits the rights of the public to benefit from the global commons.
It is doubly reprehensible that supposed guardians of culture should not only be asserting intellectual monopoly rights they don’t have over materials in their collections, but that they should be undermining one of the most important tools available for promoting the sharing of culture — the carefully-calibrated range of Creative Commons licenses.