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…

Filed Under: , ,
Companies: mimtid, zuffa

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Comments on “Is It Copyright Infringement To Pass A DMCA Notice On To ChillingEffects?”

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73 Comments
Dark Helmet (profile) says:

Re: Re: Re:

You forgot Premise C: Unique expression CAN be copyrighted.

This is where I step in. I will gladly sell my services to law firms, such that their future DMCA notices can be written uniquely in poem or prose format, complete with references to the sun and the sky, or nefarious characters with overly dramatic descriptions of their “shifty eyes”.

This will be big business in the future: uniquely authored DMCA notices by seasoned writers….

Dark Helmet (profile) says:

Re: Re: Re:2 Re:

Here’s a sample I whipped up that we could send out to prospective customers:

I, (Company/Individual Name), certify here,
Under penalties of perjury severe,
That I am an authorized agent to act,
On behalf of owners, its fact,
Of certain intellectual property rights,
For which the work to produce took many days and many nights,

I have it on good faith, that items in your space,
Are simply not authorized by law,
For use or for waste, by the owners of said space,
And it’s making our client quite raw,

It infringes, you see, on our client’s copyright,
So I must demand that you recognize his plight,
Act expeditiously to remove or disable,
Access to the material as soon as you are able,

My contact information is listed below,
Along with the alleged materials,
But I must impress upon you in this notice,
That I am totally, totally cereals,

Once you have done so please get in touch,
Or we’ll beat you to death with a crutch,
For now I’m off to get some soup,
Love: Dark Helmet’s Legal Notice Writing Group.

Anonymous Coward says:

Re: Re:

It’s an interesting question. The purpose would seem to be criticism. However, if chilling effects is just publishing the letter without any additional commentary, that doesn’t fit the standard “criticism” paradigm for fair use.

Ultimately, it’s probably fair use, but an interesting question I think.

average_joe says:

Re: Re: Re:

It’s an interesting question. The purpose would seem to be criticism. However, if chilling effects is just publishing the letter without any additional commentary, that doesn’t fit the standard “criticism” paradigm for fair use.

Ultimately, it’s probably fair use, but an interesting question I think.

It really is interesting, for sure.

I’d argue that the whole Chilling Effects exists for the purpose of criticism. Chilling Effects is critical of the notices in general, and their website is full of information to that end. Also, being a clearinghouse for these notices serves an academic purpose by making the notices available for research and criticism by others. This techdirt article and our comments to it is just such an example of this third-party criticism.

This is one of those things where if it came down to it, I think a judge would be inclined to find fair use.

Anonymous Coward says:

Re: Re: Re: Re:

I think the most important point is that allowing copy protection on these legal documents does nothing to promote the progress of the sciences or arts and so it should be considered unconstitutional. Lawyers don’t write legal documents because of the copy protection laws they can get from those documents.

Anonymous Coward says:

Re: Re: Re:2 Re:

“I think the most important point is that allowing copy protection on these legal documents does nothing to promote the progress of the sciences or arts and so it should be considered unconstitutional.”

A law does not have to *perfectly* achieve a constitutional purpose in order to be considered constitutionally appropriate.

Congress is entitled to do its best to create a copyright law to promote the progress, etc., and that law is constitutional even if it is imperfect in such promotion.

average_joe says:

Re: Re: Re:4 Re:

The law doesn’t promote the progress and so it’s unconstitutional. It’s not only imperfect at promoting the progress, it doesn’t promote the progress at all.

My understanding of current Supreme Court copyright doctrine under Eldred is that copyright laws are only reviewed on a rational basis standard, and the preambular “to promote the progress” from Art. 1, sec. 8, cl. 8, is not a substantive limit on Congress’s ability to create copyright laws. In other words, it is not necessary that a copyright law “promote the progress” for it to be constitutional.

btr1701 (profile) says:

Re: Re: Re:5 Re:

> the preambular “to promote the progress”
> is not a substantive limit on Congress’s
> ability to create copyright laws.

Funny how some folks think certain prambulars can be dismissed as having no legal effect (to promote progress) but others (a well-regulated militia) are absolutely critical in defining the legal validity of the entire section.

Smells like more ends-based “interpretation” to me.

Anonymous Coward says:

Re: Re: Re:4 Re:

So, first of all, I dispute that conclusion.

But aside from that, the constitutionality is not determined by the results/efficacy of the law. The “promotion” is merely a justification for giving Congress the power to create the law, it is not a test for judging whether Congress has exceeded that power.

Anonymous Coward says:

Re: Re: Re:7 Re:

“The Congress shall have Power…

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…

[and] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

So, the question is not whether Congress has in fact “promoted the progress,” but whether the law it passed is “necessary and proper for carrying into Execution” the power to promote the progress by securing exclusive rights.

Having a judge determine whether Congress did a good job in passing a copyright law by some sort of empirical analysis on how well it does or does not promote the progress takes the power out of the necessary and proper clause and Congress in general.

This is how the Supreme Court has interpreted the Constitution, and I think it’s the right interpretation. Otherwise, you’ve got Congress as an advisory body to the all-powerful federal judiciary.

Jay says:

I know,

that they know, that I know, about the DMCA takedowns.

And they know, that I know, that they know, that we all know, about how to counter the DMCA notice through public discourse.

Now we all know, what they know, about how I know, what the law is.

Let’s hope they know, that I know, that we all know, the DMCA is not copyrighted in the slightest.

And I hope they know, that we all know, that they need to know, how we know, that all this does is cause more of a Streisand effect.

Anonymous Coward says:

Re: Re: Re: Legal Notice

Reading the heading alone can be misleading.

The exemption only applies if, among other things, “any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.”

Marcus Carab (profile) says:

So chillingreport.com is registered by David Cox, who is also the creator of MiMTiD and something called “Blues Destiny Records LLC”

And chillingreport.com is not the only website that doesn’t work – MiMTiD.com/net/org are all broken, and the Blues Destiny Records homepage is a redhat server default.

So is there a real operation buried somewhere in all this? What are they obfuscating?

Mike Masnick (profile) says:

Re: Re:

So chillingreport.com is registered by David Cox, who is also the creator of MiMTiD and something called “Blues Destiny Records LLC”

Aha! Blues Destiny is the tiny record label that sued Google and Microsoft not so long ago:

http://www.techdirt.com/articles/20091209/1824537279.shtml

Part of the problem with that lawsuit was that Blues Destiny couldn’t seem to figure out how to file a valid DMCA notice, so it’s a bit amusing that they seem to have gone into the DMCA filing business… but are still doing it poorly.

Hugh Mann (profile) says:

Also trying to turn it into some sort of NDA...

By referring to “information” in the letter, the sender is also apparently trying to make the fact that the letter has been sent confidential. This is clearly silly. If you send me a letter, I’m under no obligation to refrain from telling others that you have sent me the letter, or to paraphrase the letter in order to tell others about it.

As for the copyright value of the letter, yes, it very well could be protected by copyright. There are many ways to express the idea that you are invoking the DMCA. However, it’s also the case that legal documents borrow heavily from eaerlier versions and boilerplate, so it’s not at all clear how much of THIS letter is subject to a copyright held by THIS sender.

And, even if it IS completely covered by a copyright owned by this particular sender, I think there’s a very good fair use argument in making a copy of the whole thing for use in public discussion/comment.

That all being said, in the end, the recipient of such a letter should consider carefully their position before taking action to piss off the other side. You may be totally safe in disclosing such a letter, but, if the other guy actually does have you cold for copyright infringement, he’s not likely going to be very flexible in negotiating a settlement after you’ve tried to publicly embarass him.

HM

Gracey (user link) says:

Google’s DMCA form informs the filer that their notice will be aired publicly, but it’s doubtful anyone who doesn’t use the online form would get any notification of that, except perhaps in the automated response you get from filing a complaint.

[quote]It is also our policy to document all notices of alleged infringement on which we act, including by sending a copy of the notice to one or more third parties or making it available to the public.[/quote]

If someone filed a DMCA on a DMCA notice, would THAT be made public, thereby creating an ongoing circle, or would Chilling Effects or Google simply remove the original complaint?

@Marcus – I can’t access any of those pages on mimtid.net either (Firefox & Chrome) – the message I get is the same – it has a redirect loop. I can access it if I search it and use a cached page view though.

AW says:

chillingreport.com namesake

Actually chillingreport.com is named after Fred Chilling (the ch is pronounced with a sh sound). Fred was a pioneer in lobbying for whichever group would pay for him to do so, famously being hired by opposing sides in the court case Shumpter v. Bailey, in which successfully argued that a claim to the largest ball of twine was in possession of both parties at the same, thereby nullify the laws of physics who did not have a representative present to argue on their behalf. Ever since then blatantly taking sides against all reason has been known as “shilling”. Just thought peopel may find that fact interesting.

Anonymous Coward says:

My question is, why does the letter need to be forwarded to certain members of Congress?

I mean, I get the political grandstanding aspect of sending a copy of each and every accusation to a Rep. But at the end of the day, even the braindead congressmen should know they are only accusations since that’s all that is being sent their way.

harbingerofdoom (profile) says:

isnt a legal filing in a court system automatically something available to the general public? i know for example michigan and california both have specific laws on the books that basically state that unless they fall under specific categories (such as court immunity from FOIA, gag orders or cases involving minors and there are a few more things) that the public interest is the higher standard to be met in obtaining and releasing documents.
as such, it sounds like the claim of copyright on this type of stuff is trumped by the public good claimed by such laws…

one of you lawyerly types should jump in and point out if such laws are applicable to a DMCA notice however…

Jason says:

Re: Re:

It would certainly be the case if the document were filed in an existing court case. I suppose a simple, albeit expensive, end around would be to file suit every time you receive a notice and attach the notice to your filing. (Of course the cost could be reduced if it was only one infinite loop of notices connected with the same set of facts, in which case you open one case and file all the notices therein.)

Then any copies of the filed documents are public record.

BUT , is the presumptive legal purpose of such a notice, together with the potential for later litigation sufficient to trump any copyright claim the notice author would assert?

Unless it actually comes to bear, I’ve just decided I don’t care.

Jesse says:

I see two solutions.

First, one could write a notice on the relevant website: “By filing a DMCA notice to this website you authorize us to distribute said DMCA notice to chillingeffects. If you do not agree to these terms, rescind said DMCA notice.” It seems about as reasonable/one-sided as any EULA I’ve ever read.

Another option: write a “review” of the original DMCA notice (use fair use to get around any copyright).

Of course, if copyright doesn’t apply to DMCA notices then there is no problem.

G Thompson (profile) says:

A few things about these stupid statements in letters.

Under US copyright a document does not become copyrighted until it is publicly published by the creator of that document. So if they have not published it themselves it is therefore not copyrightable at all.

Not only that unless (again under US law only) unless the copyright has been specifically registered then a court case could not award damages at all so therefore the “full extent of the law” would be a slap on the wrist for being naughty.

Also sending a letter to someone and then stating within the letter itself that it is copyrighted does not give the person receiving the letter the option of not accepting the letter which also gives nonsense to the other claim that the letter is in some way confidentially binding. No ability to accept does a binding contract NOT make.

Though the most interesting part of the paragraph to me is the total non sequiter of “[…] to any third party, including but not limited to Chilling Effects” since ‘third party’ means ‘no one else’ which is also quite concerning since a third party also could be construed to mean by implication legal counsel. Oops.

james contrini (user link) says:

Alexis Ohanian, co-founder of Reddit.com, talks about the value of college education and the “dire need” for skilled labor in the U.S. Higher education fails to provide students “good value” for the money they and their families spend, more than half of U.S. adults said in a Pew Research Center survey. Ohanian speaks on Bloomberg Television’s “InBusiness With Margaret Brennan.

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