Facebook Fails At The DMCA: Promises To Restore Counter-Noticed Content, But Doesn't [Updated]

from the ah,-censorship dept

We recently wrote about how an ad firm connected to a movie had misused the DMCA to takedown material off a Facebook fan page for the movie Let Me In, specifically claiming that they were doing so because they didn’t want too many fans to use that page, rather than the official movie page. Of course, that’s not what the DMCA is for. The person who ran the fan page filed a detailed DMCA counternotice, and received the following email from Facebook in response:

We have received your counter-notification. We will replace or cease disabling access to the content at issue between 10 and 14 business days from now unless we receive notice that the complainant has filed legal action against you relating to such content.

This is part of how the DMCA works. If the user files a counternotice, and if the copyright holder does not file a lawsuit within 10 to 14 business days, the service provider can put the works back up. Now, some say that service providers are required to restore the material, while the text of the statute is a bit more ambiguous. In theory, a service provider could opt not to restore the materials for other reasons. However, in this case, none of that matters, as Facebook appears to have promised that it would “replace or cease disabling access” within 10 to 14 business days.

The group’s operator notifies me that the counternotice was sent on September 10th. If my calendar math is correct, it should have put the material back on the 30th… and yet, as of today, the content is still disabled, and the group’s owner does not know why. No legal action has been filed, and Facebook promised to restore the content, but it has not. Once again, we get an example of how the DMCA’s takedown provision is an unconstitutional violation of the First Amendment. A federal law was used to silence speech, and despite following the process to restore the speech and being promised that the speech would be restored, it has not been.

Update: Facebook has responded in the comments, apologized and put the material back. Nice to see. Here was the message:

Thanks for bringing this to our attention. We take the content people post to Facebook seriously. Unfortunately, in this case, we made a mistake and the DMCA counter-notice we received was not processed in the normal course of operations. We will no longer disable access to the material at issue. We encourage the group administrator to re-post the content as they wish. We’re sorry for any inconvenience.

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Comments on “Facebook Fails At The DMCA: Promises To Restore Counter-Noticed Content, But Doesn't [Updated]”

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14 Comments
Josh Taylor says:

same way with YouTube

Same way how ***holes misuse DMCA on YouTube. Conjopi for example got NintendoCapriSun and Chuggaconroy banned by flagging their “Let’s Play” videos.

“Removed due to copyright claim by ISOPHS, Ltd.”

Conjopi also claimed he owns Chuggaconroy’s voice. This is insane. How can you own a copyright to someone’s voice?

If I, for example, owned the copyright to someone’s voice, I would force that person to have his/her voice box (larynx) surgically removed at the hospital and have it handed over to me.

This is nuts. ISOPHS, Ltd. is a cyberterrorist organization. They need to be reported to the FBI, the CIA, and the Pentagon.

Nobody is safe on the net even if you have a PC, Mac, Linux, or Ubuntu.

I say we boycott and shun technology and everything that runs on electricity. In fact, we should boycott and shun electricity as well. We should all live like the Amish.

Forget living like the Amish, boycott and shun housing. That’s right forget about living in a house. We should start living in the wilderness. Our home is in Heaven with the Lord.

Anonymous Coward says:

Action against Facebook

512(g) grants immunity to Facebook against any action based on their removal of the allegedly infringing material. That immunity is expressly removed, however, if they do not replace the material between 10 to 14 business days following the receipt of the counternotice unless the ad firm has notified Facebook that they filed suit against the Facebook user.

Therefore, the Facebook user should start watching for process servers or certified mail. They could also file suit against Facebook and attempt to get a court order to replace the material. I’m not certain if those attorney fees and costs would be recoverable. Would the Facebook user have a claim to any economic damages? Usually that isn’t the case.

mischab1 says:

Re: Action against Facebook

Before wasting money on lawyers, they should attempt to find out why Facebook hasn’t restored the material. (Maybe it’s just incompentence.)

You know, something like..

Hey Facebook, per your email on ___, you were going to restore ____ if no complaint was filed within 10-14 business days. It is now __ business days. I haven’t recieved notice of any complaint, why has the material not been restored?

Barry Schnitt says:

Apologies from Facebook

Thanks for bringing this to our attention. We take the content people post to Facebook seriously. Unfortunately, in this case, we made a mistake and the DMCA counter-notice we received was not processed in the normal course of operations. We will no longer disable access to the material at issue. We encourage the group administrator to re-post the content as they wish. We’re sorry for any inconvenience.

Also, we’re big fans of TechDirt and will try to be responsive if you give us a chance to comment on or clarify anything Facebook-related. Feel free to send us an email anytime at press@facebook.com or to me personally at the info below.


Barry Schnitt
Director, Policy Communications
Facebook
barry@facebook.com
650.543.4979

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