Five Years Ago

After all the DMCA talk this week, it's interesting to see all the related battles that were happening back in 2011. We saw a court reject the idea that the DMCA requires service providers to proactively block infringement; we debunked the idea that the public domain is a bad thing and showed examples of how just letting people use your content is often a better choice than struggling with licensing. In general it was clear that greater IP enforcement simply doesn't work and copyright doesn't even make sense in cognitive science terms — but that didn't stop broadcasters from trying to block time-shifting options or ISPs from trying to throttle infringement but hurting World Of Warcraft players instead, or Boston College from telling students that a wireless router is a sign of copyright infringement. In the world of revolving doors, former Senator and fresh new lobbyist Chris Dodd was practicing his MPAA talking points, while a judge who was okay with lumping together a bunch of unrelated filesharing lawsuits turned out to be a former RIAA lobbyist, and the EU hired a former IFPI lobbyist to take the lead on copyright regulations.

Ten Years Ago

The saga continues as we move back to 2006, when Germany was seeking hefty jail sentences for file-sharers, TorrentSpy was trying to stop the MPAA from re-interpreting the Supreme Court in its favor, and experts were already pointing out that copy protection doesn't work and it was clear that nobody liked it (like the new DRM from Accenture that was too confusing for anyone to understand). This was underlined by the Korean music industry successfully selling DRM-free music at a higher price-point. An ISP that had formerly claimed filesharing was a huge burden admitted it wasn't, while YouTube was instituting its (now much more flexible) ten-minute time limit on videos as a scattershot way of reducing piracy and trying to avoid comparisons to Napster by courting official distribution deals.

And, given what's happening in America right now, it's fun to look back at our coverage of a silly Donald Trump business idea and remember how inconceivable today's circus once seemed.

Fifteen Years Ago

In 2001, copy-protected CDs were just getting ready to enter the US (and the problems were already becoming apparent). Despite all the doom and gloom, digital entertainment providers were doing just fine, though the same couldn't yet be said about mobile content: people just didn't seem to care despite all the hype, and the revenue had yet to materialize. Some were pointing out that internet companies still need to be innovative, though perhaps examples like MLB charging money for its online baseball audio broadcasts wasn't the best approach.

This was also the week that Google slightly surprised everyone by naming Eric Schmidt as chairman.

Eighty-Six Years Ago

Considering how awful the MPAA is these days, it's easy to forget that the group's current role was originally intended to be a solution to a different problem: the incredibly restrictive and censorious Motion Picture Production Code that clamped down on the free expression of American filmmakers. It was on March 31st, 1930 that the industry's MPAA-prototype first adopted the code (though it wouldn't be enforced strongly for four more years).

This week, we've got one standout project that seems worth highlighting here at Techdirt because of its commitment to things we all care about: cutting-edge media technology, the planet we all live on, and the public domain. Catalog.Earth is a project to use the first to capture the second and dedicate it to the third.

The project emerges from the simple fact that bunch of landscapes on earth are disappearing forever (and the fact that plenty already have). While many are fighting to stop or at least slow down that loss, the folks behind Catalog.Earth are filling in another gap: making sure that, no matter the outcome, the memory of these places won't be completely lost. To that end, they want to use the best technology for 3D video and audio to capture immersive footage and sound from far-flung, highly threatened landscapes. And, most importantly, they want to put all that material in the public domain — the only real way to ensure it lasts forever and benefits everyone.

First on the list for this debut of the project is the Columbia Glacier in Alaska. They are working with specialists from the realm of geography and 3D video production to mount an expedition that will produce multiple 360-degree 4K video/audio recordings of the quickly-retreating glacier at different times of year. The footage will be released under a CC0 public domain license, ensuring nobody can ever try to claim ownership and clamp it down.

And that's just the first step, to show the potential of the project. They'll also be working on a set of guidelines and tools to help other people begin contributing to the catalog, with the goal of capturing endangered landscapes from around the world. Ultimately, the plan is to build an open-source platform to enable the creation and curation of this catalog, making it easy for anyone to contribute and everyone to enjoy. Sure, there's a tiny cynical voice inside me that wonders if we're just paying for someone's Alaskan excursion — but in truth it seems like a fair and sincere exchange. These days, when so many photographers and videographers are protective and exclusive about the rare and difficult material they capture, nothing demonstrates a genuine concern for what you're doing more than dedicating the content you produce to the public domain.

Right before the end of last year, the DOJ -- facing budget cuts -- announced it would be ceasing its "equitable sharing" program with local law enforcement agencies. These agencies complained loudly about the unfairness of being decoupled from the asset forfeiture money train, as this partnership often allowed them to route around more restrictive state laws.

Today, they're breathing more easily, thanks to the DOJ's resumption of the temporarily-disabled program.

The Justice Department has announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.

The "Equitable Sharing Program" gives police the option of prosecuting some asset forfeiture cases under federal instead of state law, particularly in instances where local law enforcement officers have a relationship with federal authorities as part of a joint task force. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize.

A North Carolina sheriff is looking at getting his hands on nearly a million dollars -- all tenuously tied to illegal activity.

“(The equitable sharing program) is a great benefit,” Graves said. “It takes money from the drug trade and puts it to better use for the community.”

He said that according to the best estimate from pending cases, equitable sharing should provide the sheriff’s office with approximately $846,000.

Meanwhile, another North Carolina sheriff says the lack of sharing might have resulted in dead officers had the feds not resumed handing out money taken from people never charged with a crime.

“The restoration of the Equitable Sharing Funds will serve as a boost to the morale of law enforcement professionals nationwide,” said Alamance County Sheriff Terry Johnson. “These monies were used by my agency in the past to purchase much needed equipment for the safety of our officers and the citizens of our communities. I am very thankful to God that we did not lose any officers because of the lack of safety equipment during the suspension of the Equitable Sharing Program…"

And it appears New Hampshire is either heavily-reliant on equitable sharing, or its representatives heavily-reliant on law enforcement support. Both senators and the state's governor issued statements welcoming back the DOJ's set of twisted incentives.

Then there's this article, with a headline that appears to have been written by law enforcement.

Money coming back: Federal program resumes helping local municipalities

This is not good news for citizens, as they're now facing an increased risk of having their cash and belongings taken from them without ever being charged with a crime. The best move would have been to leave this permanently defunded. The DOJ isn't saying how it's making up the $1.2 billion difference that resulted in the shutdown last year, but it likely has something to do with the fact that its seizures -- via the FBI and DEA -- are still generating plenty of "income."

Just when we thought some surveillance reforms might stick, the administration announced it was expanding law enforcement access to NSA data hauls. This prompted expressions of disbelief and dismay, along with a letter from Congressional representatives demanding the NSA cease this expanded information sharing immediately.

This backlash prompted Office of the Director of National Intelligence General Counsel Robert Litt to make an unscheduled appearance at Just Security to explain how this was all a matter of everyone else getting everything wrong, rather than simply taking the administration at its word.

There has been a lot of speculation about the content of proposed procedures that are being drafted to authorize the sharing of unevaluated signals intelligence. While the procedures are not yet in final form, it would be helpful to clarify what they are and are not. In particular, these procedures are not about law enforcement, but about improving our intelligence capabilities.

As Litt explains it, everything about this is lawful and subject to a variety of policies and procedures.

These procedures will thus not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes. They will require individual elements of the Intelligence Community to establish a justification for access to signals intelligence consistent with the foreign intelligence or counterintelligence mission of the element. And finally, they will require Intelligence Community elements, as a condition of receiving signals intelligence, to apply to signals intelligence information the kind of strong protections for privacy and civil liberties, and the kind of oversight, that the National Security Agency currently has.

So, this all sounds like it has nothing to do with law enforcement. Just intelligence "elements" from the community. Except that law enforcement and intelligence agencies are hardly separate entities. We already know the NSA is allowed to "tip" data to the FBI if it might be relevant to criminal investigations. There's no clear dividing line between intelligence and law enforcement -- not with law enforcement's steady encroachment into national security territory. When Litt says "only intelligence agencies," he's actually referring to several law enforcement agencies, as Marcy Wheeler points out.

As a threshold matter, both FBI and DEA are elements of the intelligence community. Counterterrorism is considered part of FBI’s foreign intelligence function, and cyber investigations can be considered counterintelligence and foreign intelligence (the latter if done by a foreigner). International narcotics investigations have been considered a foreign intelligence purpose since EO 12333 was written.

In other words, this sharing would fall squarely in the area where eliminating the wall between intelligence and law enforcement in 2001-2002 also happened to erode fourth amendment protections for alleged Muslim (but not white supremacist) terrorists, drug dealers, and hackers.

So make no mistake, this will degrade the constitutional protections of a lot of people, who happen to be disproportionately communities of color.

And, to go back to Litt's statement, the whole thing starts with a dodge:

These procedures will thus not authorize any additional collection of anyone’s communications…

This is something no one has actually claimed. What people are concerned about is the NSA using its massive collection abilities to become an extension of domestic law enforcement, rather than the foreign-focused entity it's supposed to be.

And, as for Litt's claims that everything is subject to clearly-defined rules on minimization, those are also false. First off, the expanded permissions originate under Executive Order 12333, which has been revised in secret on more than one occasion -- all without the full participation of Congressional oversight. Not only that, but agencies that are recipients of unminimized data from the NSA are supposed to apply their own minimization procedures to better ensure "strong protections for privacy and civil liberties." Wheeler notes that two recipients have yet to put any minimization procedures in place, despite having had years to do so.

I also suspect that Treasury will be a likely recipient of this data; as of February 10, Treasury still did not have written EO 12333 protections that were mandated 35 years ago (and DEA’s were still pending at that point).

The backdoor search loophole has yet to be closed (which gives the FBI access to unminimized data and communications obtained via Section 702) and these agencies -- along with two consecutive, very compliant administrations -- have been tearing down any walls between the NSA and law enforcement for several years now.

Litt's reassurances are worthless. It namechecks all the stuff we know is mostly worthless: oversight, minimization procedures, the frankly laughable idea that the FBI cares more about privacy and civil liberties than making busts, etc. and asks us to believe that a tangled thicket of secretive agencies and even-more-secretive laws are all designed to protect us from government overreach.

Biology defies simple categorization -- even though some think of the field of biology as glorified taxidermy. We even have a difficult time defining what life is. (Are viruses alive?) Fundamental questions about how life began and how life even continues are still elusive. We've just started to scratch the surface of collecting data that might help us understand more about ourselves and the ecosystem we live in. Here are just a few links on genomes and biodiversity that lead to more questions than answers.

• What is the 'hypothetical minimal genome' required for a living organism to exist? Researchers thought that maybe a living cell could get away with 256 genes, but it didn't produce a viable living organism. So after a some trial & error iterations of editing simple bacterial genomes, it looks like 473 genes might be the smallest genome that life needs... to be called life. (And we still don't know what a significant fraction of these genes do.) [url]
• Genome analysis is becoming more practical to do on a large scale, and for just $25,000, you could have your own personal genome -- plus a battery of other medical tests that may or may not provide any meaningful results. Collecting all this health data, though, could start to provide some interesting correlations, and the company offering the service is named Human Longevity -- so there might be something in aggregating this information that might help people live longer lives. [url]
• How many mammalian viruses exist? At least 320,000? And there's probably no limit to the number. It's important to note that not all viruses cause disease -- bacteriophages keep us healthy by killing off bacteria that do cause diseases. So we don't want to eradicate viruses, but it would be nice to know more about them. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

It wasn't so long ago that we were discussing the problems with the United States Treasury Department's list of scary names and how it was being used to prevent completely innocent folks from using online services. The ultimate point of that post was that casting broad nets in which to turn suspicious eyes without applying any kind of checks or common sense was a recipe for calling a whole lot of people terrorists that aren't actually terrorists.

Enter Chase Bank, which reported a man to the authorities and froze his bank account because he paid someone to walk his dog, named Dash.

Bruce Francis transferred some money to his dog walker to pay for services to his pit bull, and wrote the dog's name, "Dash," in the notes field. The processors at Chase Bank thought that Dash might be a sneaky way of spelling Daesh (which is the mocking, insulting nickname used by critics to refer to "ISIS"), decided that this was possible terrorist money-laundering, and stopped the payment, froze his account, and notified the Treasury Department that he was a suspected terrorist.

It's hard to know exactly where to begin, but let's dig in, shall we? We can start with the fact that Daesh is a name for ISIS, chiefly used by those opposed to it. It's an acronym of sorts, but it came into being because it sounds like a couple of similar Arabic words that carry heavy negative connotations. In fact, I've heard researchers and opponents of ISIS insist that we should all call them Daesh specifically because it pisses them off so much. In other words, it's fairly unlikely that an ISIS member or supporter is going to call the group Daesh.

And it's less likely that they're going to misspell their terrorist benefactors' group name. It would be like a neo-Nazi funding a group and writing "Not-zees" on the memo line on the check. Sure neo-Nazis are dumb, but if you care enough about the group to fund it, you probably know how to spell the group's name, right? Dash being a fairly common word only pounds home the question of why didn't someone just pick up a phone and call Mr. Francis for an explanation.

Because, really, why would someone funding a terrorist group note that on a paper check? That's the stupidest part of all this. The folks over at Chase apparently thought a guy named Bruce Francis was funding ISIS, calling it Daesh but misspelling the word, and was noting that in the memo on the check. That's epic levels of dumb. Which is why I had assumed Francis would be royally pissed off about this. But, nope, we Americans have been conditioned at this point, which is how you get this:

Despite the inconvenient mix-up, Francis said he had no hard feelings.

"I think anything we can do to stop the terrorists and the funding of terrorists, let's do it," he told KTVU. "And if it means an inconvenience to me and my dogwalker, then that's a price I'm totally willing to pay."

Maybe it's time we just pack this whole America thing up and try again with something new.

A Canadian court -- granting a request made by the Royal Canadian Mounted Police (RCMP) -- is in the process of dismantling protections for Canadian journalists. The case involves a Skype interview by Vice Magazine with an alleged terrorist currently located in Syria. The interview, in which the self-avowed terrorist (Farad Mohamed Shirdon) claimed an attack in New York City was imminent, appeared back in October 2015 and led directly to his being charged in absentia with several terrorism-related offenses.

Since that point, Vice has been battling to protect itself from a production order by the RCMP, seeking communications between Vice reporter Ben Makuch and Shidron. It has argued that forcing a journalistic entity to turn over communications with a source would set a dangerous precedent that would adversely affect press freedom in that country.

The RCMP says the communications are evidence -- or presumably are, since they haven't been turned over yet. The court seems to agree.

[I]n a decision released this week, the court rejected VICE's attempt to quash the order, ruling that the police's ability to gather evidence trumps the rights of VICE and Makuch to protect their work product in this case. Specifically, the screen captures of the chats are "important evidence in relation to very serious allegations" and "The screen captures are a copy of the actual electronic messages that Shirdon placed on Mr. Makuch's computer screen. They are highly reliable evidence that do not require a second hand interpretation," Justice Ian MacDonell wrote in his decision.

Vice News is looking at appealing this order. As it points out, its reporting already led to the identifying and charging of Shidron, something that most likely would not have happened without its publication. It also claims nothing it has in its possession will provide any more insight on Shidron's current location or future plans.

As Vice's attorney points out, this sort of demand is a threat to journalism.

VICE's lawyer, Iain MacKinnon, said similar production orders could become more common in Canada if police know they can easily obtain notes and recordings from journalists. "It could have a very real chilling effect on the willingness of people and witnesses speaking to journalists," said MacKinnon. "If people realize that what they say to a journalist could easily be handed over to police and used as part of a criminal investigation, that may scare somebody off in speaking to a journalist."

A large part of what makes journalism journalism is investigatory work and speaking to sources who wouldn't feel comfortable speaking to someone if they couldn't be assured anonymity or other protections. Journalists are not an extension of law enforcement or any other government body (or at least shouldn't be), but that's what an order like this does: makes Vice News a convenient source for law enforcement to obtain communications and documents from. I'm sure Vice has no desire to "harbor" a terrorist, but it also has no desire to see terrorism fears being leveraged to create a dangerous precedent.

So, today's been DMCA 512 takedown day here at Techdirt. Today's the day that comments are due at the Copyright Office concerning the effectiveness (or not) of the DMCA's notice and takedown provisions. And, of course, no one's entirely happy with the DMCA, but they're unhappy in very different ways. We wrote about the legacy music industry whining that Google has built a successful service while they failed to adapt themselves. We wrote about Automattic reinforcing how DMCA takedowns are regularly abused to try to censor content (and how people are afraid to counternotice), and we wrote about our own filing, highlighting how the abuse of the DMCA process raises questions about how the current setup is Constitutional.

And, there are tons of other filings and comments flowing in, often from industry groups, written by lawyers. But it's important that the Copyright Office hear from the public as well. So our good friends over at Fight for the Future have set up a wonderful website at TakedownAbuse.org that provides more information and helps you send your own comments to the Copyright Office about how DMCA abuse impacts you.

Also, the folks at Channel Awesome put together a great video that both details the problem and suggests some key points worth raising in any comment you send in (though, I take issue with his claim that this "flew under the radar," since the comment period was announced months ago... but...). Either way please consider sending in a comment -- and doing so in as thoughtful and polite a manner as possible. I know that there are often temptations to say something angrily in such comments, but that will just open up a reason to ignore your submission.

As mentioned earlier, today's the day to file comments with the Copyright Office over the DMCA's notice and takedown provisions. We've already discussed the recent set of studies showing that there are way too many bogus takedown notices that are clogging the system, creating real problems for small service providers and censoring free speech. We also wrote about the patently ridiculous filing by the legacy players in the music industry, who whined about how the public is enjoying more content than ever before (which, you know, is the stated purpose of copyright law), but they're upset that their business models are now obsolete. Finally, we wrote about the fantastic filing from Automattic, which gives many more real world examples of how the takedown process is abused (which the legacy industry pretends isn't true, because people don't file counternotices).

And now, here's our own comment, prepared by our excellent attorney (and sometimes guest poster), Cathy Gellis. In this filing, we decided to focus on taking a step back and going to first principles about the intent of copyright law itself, as well as the official and stated intent of the DMCA -- and to look at where things seem to be working and where they are not. As the filing notes, Congress made it clear with both the DMCA 512 safe harbors and the CDA Section 230 immunity provisions that it intends to support a vibrant internet where the public is free to share its views. And we see no reason why Congress should back away from that.

But, of course, there are problems, and the big one is widespread censorship enabled by the notice-and-takedown provision:

Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA's potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content, the DMCA conditions its protection. And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.

In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.

[....]

Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user's speech predicated on mere allegation. Mandatory injunctions are disfavored generally, and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful. To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.

We also highlight examples of innovative platforms and services driven out of business due to bogus DMCA claims, and how that appears to go against the purpose of copyright as well:

Veoh was a video hosting service akin to YouTube that was found to be eligible for the DMCA safe harbor. Unfortunately this finding was reached after years of litigation had already driven the company into bankruptcy and forced it to layoff its staff. Meanwhile SeeqPod was a search engine that helped people (including potential consumers) find multimedia content out on the Internet, but it, too, was also driven into bankruptcy by litigation, taking with it an important tool to help people discover creative works.

History is littered with examples like the ones above of innovative new businesses being driven out of existence, their innovation and investment chilled, by litigation completely untethered from the principles underpinning copyright law. Copyright law exists solely to "promote the progress of science and the useful arts." Yet all too frequently it has had the exact opposite effect.

The DMCA has the potential to be a crucial equalizer, but it can only do so when the economic value of what these service providers deliver is considered by policymakers with at least as much weight as that given to the incumbent interests who complain that their previous business models may have become unworkable in light of digital technology. Service providers are economic engines employing innumerable people, directly and indirectly, and driving innovation forward while they deliver a world of information to each and every Internet user. We know economic harm is done to them and to anyone, creators and consumers, who would have benefited from their services when they are not protected.

And along those lines, our comment also points out that the legacy players have a fairly long history of crying wolf over problems that aren't really problems:

But what needs careful scrutiny and testing are economic arguments predicated on the assumption that every digital copy of every copyrighted work transmitted online without the explicit permission of a copyright holder represents a financial loss. This is a presumption that needs careful scrutiny, with reviewable data and auditable methodology. It is quite a leap to assume that every instance (or even most instances) of people consuming "pirated" copyrighted works is an instance they would otherwise have paid the creator. For example, it tends to presume that people have unlimited amounts of money to spend on unlimited numbers of copyrighted works, and it also ignores the fact that some works may only be consumable at a price point of $0, which is something that institutions like libraries and over-the-air radio have long enabled, to the betterment of creators and the public beneficiaries of creative works alike. Furthermore, even in instances when people would be willing to pay for access to a work, copyright owners may not be offering it at any price, nor are they necessarily equitably sharing the revenues derived from creative works with the actual creators whose efforts require the remuneration.

The DMCA does not adjust to reflect situations like these, nor does it incentivize copyright holders to correct their own self-induced market failures. On the contrary; it allows them to deprive the public of access to their works and to threaten the service providers enabling their access with extinction if they do not assist in disabling this access. None of these outcomes are consistent with the goals and purpose of copyright in general, and care must be taken not to allow the DMCA be a law that ensures them.

There's a lot more in the filing, including us questioning how merely linking to materials could or should be considered infringing, worries about how the DMCA can be abused to identify previously anonymous speakers and concerns about "repeat infringer" policy requirements that based on accusations rather than actual proof of infringement. You can read the whole thing at the link above or embedded below. And I'll just post the conclusion here as well:

Ultimately it is not possible to have a valid copyright law that in any part is inconsistent with the Progress Clause or First Amendment. To the extent that the DMCA protects intermediaries and with them the speech they foster it is consistent with both of these constitutional precepts and limitations. To the extent, however, that that DMCA suborns due process or otherwise compromises the First Amendment rights of either Internet users or service providers themselves to use and develop forums for information exchange on the Internet it is not. The statutory infirmities that have been leading to the latter outcome should therefore be corrected to make the DMCA’s protections on intermediaries and the speech they foster as durable as this important policy interest requires.

Earlier this week, we wrote about a major new study that revealed that a ton of DMCA takedown notices are clearly faulty, and how that shows just how messed up the DMCA's notice-and-takedown provisions are in giving tremendous incentives to send notices with absolutely no punishment for filing bogus takedowns. The legacy music industry and its supporters keep claiming that the fact that there are so few counternotices is evidence that there's almost no abuse. In fact, in the legacy music industry filing we wrote about earlier today, they even had the gall to claim that the real abuse is in the counternotices themselves.

As more and more comment filings to the Copyright Office about the DMCA process are being released, there's increasing evidence that the legacy entertainment industry's claims are, simply, full of shit. The latest is the excellent comment filed by Automattic (the folks who make Wordpress), whose Wordpress.com offering hosts over 80 million websites. The company notes that even while hosting so much content, the majority of the time the company spends dealing with DMCA notices is... dealing with the bogus ones:

We put a great deal of resources toward processing takedown notices because we take our responsibilities under the DMCA seriously. We aim to respond to all inbound takedown notices within 48 hours, exceeding the law’s requirements. But a significant portion of the resources we put towards our DMCA program are aimed at combating the shortcomings of the notice and takedown system. For example, we spend significant effort reviewing and trying to weed out overbroad and abusive DMCA takedown notices, so that our users’ speech isn’t needlessly censored. This is a real cost to us, and diverts resources from more productive uses, like improving the products and services we offer our customers.

As with the study we highlighted earlier this week, Automattic notes that a huge number of notices it receives are invalid. First, it notes that approximately 29% of notices simply aren't valid notices in that they fail to meet the criteria laid out by the DMCA for what constitutes a valid notice. Then, another 10% of notices do meet the criteria to be an official notice, but are "clearly false or mistaken." And that's based on their own review of the notices. So, approximately 40% of all DMCA takedown notices the company receives are bogus. But, contrary to what the legacy industry folks and their shills are saying, Automattic notes that very few people file counternotices, out of a fear of being sued, and they're concerned about how this leads to censorship of perfectly legal speech.

Our statistics bear this out. As discussed below with respect to Subject No. 30, our statistics show that about 10% of the notices of claimed infringement we receive are otherwise valid but are clearly false or mistaken. But we receive many fewer counter notifications than that—only about one-half of one percent of the total number of notices we receive. We think this ratio shows that the low number of counter notifications is not the result of a correspondingly low number of false and mistaken assertions of infringement, but instead results from the concern that sending a counter notification is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred. The company notes that out of a batch of approximately 1,700 "valid" but bogus notices, only 113 counter notices were sent. Most people just don't bother out of fear of getting sued.

The company also highlights just how broken Section 512(f) is -- which is the section that is supposed to be used against bogus takedowns. But as we've written about in the past, it's basically a dead letter. There are almost no examples of 512(f) being used successfully against someone for sending a takedown... with the one exception being Automattic! As we wrote about, a few years ago, Automattic actually sued over egregiously bad DMCA notices and even won a case, but... it was by default, because the notice sender just ignored the lawsuit. In the other lawsuit, it could never actually find the plaintiff who sent the bogus censorious takedowns.

The company also provides a number of actual examples of bogus DMCA takedown notices to get beyond just the statistical aspect and to prove the problem is real:

• A medical transcription training service that used forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
• A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
• A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
• An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
• A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.

As the company notes, each of these were clearly bogus, but since 512(f) is basically useless, it would be a complete waste of time to sue over them.

It's good to see companies sharing this kind of information, and it tracks closely with what the study from earlier this week said, which was based on a different corpus of data. So, yeah, when the legacy guys claim there's no abuse, they're simply full of shit.