Is It Copyright Infringement To Pass A DMCA Notice On To ChillingEffects?
from the copyright-on-a-copyright-infringement-notice? dept
Tom Rubin, who happens to be Microsoft’s chief counsel for intellectual property strategy, has a blog post up at the Center for Internet and Society at Stanford, where he highlights the worrying trend of filers of DMCA takedown notices forbidding the recipient to publish or pass the notice on to third parties like ChillingEffects. From the notice:
IMPORTANT NOTICE: None of the information contained in this legal notice is to be transmitted and/or released to any third party, including but not limited to Chilling Effects (chillingeffects.org), without the express written permission of the the copyright owner and or his agent. As stated in Section 512 of the Digital Millennium Copyright Act, and in the normal course of processing and notifying the infringing counter party, recipient must only include information specific to that counter party’s infringement and must not include this entire notice. Any re-transmission in whole or in part of this legal notice by the intended recipient will be a direct violation of U.S. and International Copyright Law and will be prosecuted to the fullest extent of the law by the copyright owner.
Yes, that’s right. The company is claiming that the DMCA takedown notice itself is copyrighted and that passing it along will constitute infringement. Of course, this raises some questions. Assuming that such a notice is copyrightable (and I’d argue that, depending on the text, it might not be), who owns the copyright. The paragraph above appears to imply that it’s the copyright holder of the original content that the takedown notice is about, but that wouldn’t be true. It seems that the copyright, if there is one, would be held by whoever wrote the letter, which is the third party firm hired by the original copyright holder. Also, did whoever write this letter actually register it with the Copyright Office?
Either way, I can’t wait to see the DMCA takedown notice filed on a DMCA takedown notice.
Of course, it’s not too hard to track down more details about this. That’s because at least some of the recipients of such a warning appear to have totally ignored it. Within seconds, I found a recent letter on ChillingEffects (sent to Google) that includes this language. It’s a letter from Zuffa LLC, better known as the parent company for UFC, who has been quite aggressive in copyright lawsuits. The actual letter appears to have been filed by an outfit called MiMTiD, which promises automated DMCA takedown notice submission, which only raises even more questions. If the letter itself is automated, again that raises questions about whether it’s copyrightable.
Even odder is the following paragraph in the letter. After denying the recipient the ability to forward the letter to anyone, including specifically calling out ChillingEffects, it appears to indicate that it will instead forward the letter to a different aggregator of such notices, called “The Chilling Report” but apparently that database is kept secret and you need to “obtain secure access” to see it:
Please also note that with the express permission of the copyright owner, in addition to being forwarded to certain members of the United States Congress and the U.S. Department of Justice, MiMTiD will send this legal notice to a third-party that aggregates repeat infringer data gathered by different agencies and infringement mitigation service companies around the globe and provides centralized access to that data to be used by global policy makers and law enforcement agencies to create and enforce copyright law. As such, this legal notice will included in The Chilling Report (http: //www.chillingreport.com). To obtain secure access to the Chilling Report please email The Chilling Report at xxxxx @chillingreport.com or call (713) xxx-xxxx.
I checked out http://www.chillingreport.com and nothing loads. So is this an attempt to try to hide DMCA takedown notice info from the public? If so, I doubt it will work. It’s nice to see that Google apparently didn’t think twice before passing this letter on to Chilling Effects, despite the prohibition. Now we’ll see if MiMTiD, Zuffa or anyone else actually tries to claim a copyright on the DMCA notice. I would imagine they’d have to send a DMCA notice to Chilling Effects first, and if that includes the same paragraph, we may get into an infinite loop of DMCA notices…