Romance Author Adele Dubois Receives Takedown On Blog Post For Having The Same Name As Singer Adele

from the bogus-dmca dept

I heard about this story last week, but it took a while to sort through all of the details. There were reports out there that the romance author Adele Dubois had been sent a DMCA takedown. Most of the reports were a bit vague, and then the Washington Post had a very confused writeup that bounced back and forth between copyright and trademark, without bothering to mention that you cannot use a DMCA notice for trademark issues (and also pointing much more of a finger at Google than was warranted).

I’ve now been able to see the full DMCA notice (which is not yet up on ChillingEffects, but should be soon — though I’ve included it below) and talk to a few people around this, and it appears that someone associated with Sony did, in fact, issue a DMCA takedown to Google, leading to a blog post by Adele Dubois being taken offline. Google has since reinstated the post, after reviewing the counternotice, so you can read it here, though depending on your workplace, it may be marginally not safe for work (think erotic romance novel graphics and prose).

The DMCA takedown notice details are extremely sparse. It notes that the “copyright owner” is “XL SONY” and that the “Copyright work description” is “ADELE + EXITOS.” It then lists out two URLs. One for “Location of the copyrighted work” and one for “Location of infringing material.” It’s not clear what the difference is here, but the first one takes you to a sales page for a totally different (and unrelated) romance book, whose author runs the blog where the Adele Dubois post was. The author of that book, Marianne Stephens, notes that she holds all the copyright on that particular book, and isn’t clear why it’s in the DMCA notice. The second link (location of infringing material) is the link listed above. The only connection that seems to be made is the fact that the famous singer Adele is on Sony, and the author of the blog post (and the erotic romance novel it talks about) has the pen name Adele Dubois (a name she’s used since well before the singer Adele became a professional singer). Either way, there’s no copyright in just the name Adele. The word Exitos seems totally irrelevant to anything.

Google, as it does in these situations, reverted the blog post to “private,” and then upon reviewing the counternotice turned the blog post back on. It’s not entirely clear from the notice who actually sent the takedown. It’s possible that it was an overaggressive representative of Sony. What does seem clear is that whoever sent it was just doing some sort of quick automated takedown effort without any real review — even though the takedown notice says:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In the Washington Post article, the author suggests that Google should have gotten “to the bottom of this” before taking the content down. While that would be nice, the problem is not so much with Google as with the law itself, the DMCA. Because of the way the DMCA is structured, companies that don’t take down content first and review the details later face significant liability if the content turns out to be infringing. The law basically says, if you want immunity from liability, you have to first pull the content offline. So Google followed that procedure. As we’ve noted, this part of the DMCA potentially violates the First Amendment, but has yet to be tested in court.

That said, you can see why it’s so frustrating to the recipient. It’s not at all clear from the notice that Google’s Blogger passed on to the blog owners the information on who really issued the takedown, or even what, exactly, they were claiming. The bizarre link to the totally unrelated book doesn’t help matters, but only serves to confuse them further. Combine that with the threat that this can lead to a “strike” against an account and you can see why some recipients of notices like this get pretty worried.

In the end, this looks like yet another of an all too common phenomenon (and one we’ve dealt with ourselves). Companies file automated or questionable (or insanely vague) DMCA notices all the time, and the structure of the law encourages companies who receive them to pull the content offline immediately and sort out the mess later.

Blogger has been notified, according to the terms of the Digital Millennium Copyright Act (DMCA), that certain content in your blog is alleged to infringe upon the copyrights of others. As a result, we have reset the post(s) to "draft" status. (A bit of background: if we did not do this, we would be subject to a claim of copyright infringement, regardless of its merits. The DMCA is a United States copyright law that provides guidelines for online service provider liability in case of copyright infringement.)

The URL(s) of the allegedly infringing post(s) may be found at the end of this message. This means your post - and any images, links or other content - is not gone. You may edit the post to remove the content in question and republish, at which point the post in question will be visible to your readers again.

If you believe you have the rights to post the content at issue here, you can file a counter-notification. For more information on our DMCA policy, please see http://www.google.com/dmca.html.

The notice that we received, with any personally identifying information removed, will be posted online by a service called Chilling Effects at http://www.chillingeffects.org. We do this in accordance with the DMCA. You can search for the DMCA notice associated with the removal of your content by going to the Chilling Effects search page at http://www.chillingeffects.org/search.cgi and entering the URL of the blog post that was removed.

If it is brought to our attention that you have republished the post without removing the content in question, then we will delete your post and count it as a violation on your account. Repeated violations to our Terms of Service may result in further remedial action taken against your Blogger account including deleting your blog and/or terminating your account.

If you have legal questions about this notification, you should retain your own legal counsel.

Sincerely,
The Blogger Team

Complainant Information:

05/11/2012

Recipient Information:

Google, Inc. (Blogger)
Mountain View, CA USA

Infringement Notification for Blogger:

Copyright Owner
XL SONY

Copyright work description
ADELE + EXITOS

Location of copyrighted work
http://tinyurl.com/4ydyl69

Location of infringing material
http://romancebooksrus.blogspot.com/2012/05/new-intimate-art-by-adele-dubois.html

Sworn Statements:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. [checked]

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. [checked]

Signature
[private]

Signed on this date of:
05/11/2012

Filed Under: , , ,
Companies: google, sony

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Comments on “Romance Author Adele Dubois Receives Takedown On Blog Post For Having The Same Name As Singer Adele”

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63 Comments
GMacGuffin says:

Re: Re:

I understand you have the same name as my client, Mike Myers. I must ask on his behalf that you must stop using this name.

Dear Mr. Lawsuites:

Please advise whether your client is the entertainer Mike Myers, or the guy who kills people on Halloween. Your response will have a significant bearing on my decision.

Sincerely,

Mr. Myers

Anonymous Coward says:

Re: Re: Re: Re:

Mr. Myers,

It has come to our attention that your surname begins with the same letter as our trademark. This is unacceptable. Please respond to the enclosed settlement request with a SASE. We hope to resolve this without resorting to the courts.

Sincerely,

Monster Cable

MrWilson says:

Re: Yet another reason why

What?!? That’s crazy! Content owners already have to go through the trouble of sitting in their $5000 leather office chairs and telling the VP of IP Protection at their company to hire some tech firm to run basic keyword searches and fraudulently file DMCA takedown notices over anything that comes up regardless of the content because it obviously must be infringing if they’re using the words that the content owners claim ownership of despite this concept being a violation of copyright law.

What do you want them to do – actually look at the content and make an informed decision as to whether or not the content is in fact infringing? That would get in the way of their tee time after having lunch with their representatives in Congress…

TtfnJohn (profile) says:

Re: Yet another reason why

You don’t seem to think that with Sony’s stellar record with malware that they’re perfectly capable of writing a “piracyBot” to troll sites to make sure that absolutely none of their products are infringed on.

After all, just because it can’t tell one Adele from another is no reason to dump on the super piracyBot they undoubtedly paid some script kiddie tons of money for. There is something strangely inhuman about this as it it was all automated, complete with programmed in web site references and citations.

From this comes the question. Do you charge Sony with perjury, the script kiddie or the bot? The way some US courts are acting these days they’d happily charge and convict the bot!

Ahhh, the wonderful, fascinating other worldly and totally out of touch with reality world of IP law. And those who defend it.

Kinda like reading bad sci-fi.

PaulT (profile) says:

Re: Re: Yet another reason why

This reminds me, funnily enough, of a case in 2000. The website World Of Spectrum were sent a cease and desist telling them to stop hosting a new game called Soldier Of Fortune. Of course, they weren’t, they were quite legally hosting a mid-80s game for the ZX Spectrum of the same name. There was no way a human could confuse the games, not least because the new game was CD based and the hosted game was around 60Kb in size. But, their automated systems weren’t that clever…

It’s depressing how little these fools have changed.

G Thompson (profile) says:

Re: Re: Yet another reason why

Absolutely, but perjury – in the USA anyway – is one of those crimes that seems to come with a rebuttable presumption if the defendant has lots of money and an irrebuttable presumption if the defendant is employed by a government authority.

Or so it seems anyway.. Any US attorneys want to prove me wrong?

~ender says:

Re: Re: Re: Yet another reason why

Here’s the kicker. It’s a criminal violation AND there’s no civil liability for perjury, so the cops cannot ignore it, without breaking they themselves breaking the law (unlike cases where they can decline to investigate criminal matters and you must take care of it via civil suit) – if you bring charges. I’m not even sure that the prosecutors can even decline to prosecute the case, without opening themselves to civil liability. Of course, they probably do, and most people don’t think to sue the attorney general. OTOH, I’d love to get this as a client, because when the AG doesn’t take it up, the civil liability could be more than just the amount you were inconvenienced, it could be $1M.

IANAL, however. 🙂

DannyB (profile) says:

Re: Re: Yet another reason why

But this is worse than perjury. This needs a penalty far worse. Like an extra double strong stern warning not to do it again.

It should be like the UN threatening some bad acting country. If you don’t stop that, we threaten we’ll pass a resolution stating that we’ll vote on another resolution condemning your actions!

Anonymous Coward says:

Re: Re: Re:3 L vs E

I happen to know and like several lawyers. What I’d prefer is if we stop electing lawyers and big businessmen almost exclusively to write our laws, such that they have to “call in the nerds” when they want to find out what their convoluted words mean.

Instead, we should be electing a more representative sampling of various occupations and expertise.

WysiWyg (profile) says:

Re: L vs E

Actually, Google is doing an incredible job here! It’s not THEIR fault that the system sucks, now is it?

I love the fact that they don’t bring out the “big guns” of violations and deletion unless you repeat the alleged infringement. How many service providers do you know that actually lets you keep the post, rather than just straight up delete it, while the issue is being resolved?

Anonymous Coward says:

TinyURL? WTF?!?!?!

Location of copyrighted work
http://tinyurl.com/4ydyl69

Umm, TinyURL doesn’t actually host any content at all. If you try going there with a client that doesn’t follow 301 redirects, you get a blank page.

Honestly – a location is supposed to tell you where something is, and this clearly doesn’t. If a cop got a warrant for a building, and the building had a sign that listed another address across town, would the warrant magically cover the new address?

Are they claiming that they own the HTTP headers that are served by TinyURL?

Seriously – is whoever write this so clueless as to not understand *at all* what URL shorteners are, and how HTTP redirects work?

Somebody’s head should roll for this.

Anonymous Coward says:

Re: Re:

Perhaps a cry-wolf rule is in order.

Not only should they face perjury charges, if a company or any representatives of said company commit two or more frivolous (or outright false) DMCA take down requests within a 10 year period, they lose the privilege of submitting any DMCA notices for the next 5 years. Any attempt to subvert the spirit of this rule (e.g. through shell companies), shall result in a bzillion dollar fine and being forced to wear a ‘kick me, I’m a dork’ sign for 5 years.

Anonymous Coward says:

Re: Re:

I know it’s all moot to debate the justification of punishments which have, since being codified, illustrated nothing but the reality that they will never be brought to bear on those who abuse the system.

To think that the statement being “accurately incorrect” is plausible grounds for dismissal is fantastically ridiculous. Claiming that would be the same as saying “it’s okay because i didn’t just simply lie. Instead, i lied in such a complete and thorough fashion as to evidence my knowledge of the actual truth and my intent to conceal it”.

matthias says:

the difference...

“It then lists out two URLs. One for ‘Location of the copyrighted work’ and one for ‘Location of infringing material.’ It’s not clear what the difference is here,…”
Well, it’s quite obvious what the difference is, isn’t it? “Location of the copyrighted work” should point to the original work, the work XL SONY claims to have the copyright of, whereas “Location of infringing material” points to the infringing material.
Of course, this makes even less sense. It seems that “XL SONY” (what does the XL stand for? Is this really Sony, the music company?) claims to own the copyright on…
…either some tinyurl link
…or a page that tries to sell a novel (that absolutly doesn’t fit to the this place)
…or that novel
…or…
…well, they said something about (the singer?) Adele? hm…

I think someone simply confused two links and postet the correct link to the copyrighted material on his facebook page, saying “incredible novel, couldn’t stop reading til late night yesterday. Man am I tired… But have to go back to work now. Taking down some Pirate-Sites.”
I mean, whoever sent this takedown notice even didn’t seem to be sure about whether he is “copyright owner” or only “authorized to act on behalf of the owner”. But swearing under penalty of perjury that everything he claims is correct. Yes…

Anonymous Coward says:

Re: DMCA vs. Bill of Rights

I’d also argue it violates the 4th, seeing as the material and the sites are property which is being unreasonably seized without warrant.

The DMCA is similar to previous arbitration laws in that it’s a loophole created specifically so that companies would not “burden” the court system with legal challenges to their authority and behavior, but would instead be able to buy separate and cheaper “justice”, with basically the same outcome you’d get in most non-jury trials.

Anonymous Coward says:

As we’ve noted, this part of the DMCA potentially violates the First Amendment, but has yet to be tested in court.

More than a decade of DMCA and the ACLU, EFF, CDT and PK (nor anyone else) have brought a First Amendment challenge? Maybe those experts and all of the other potential litigants have arrived at the opposite conclusion as you.

Anonymous Coward says:

Re: Re:

Actually, they’re busy offering amicus briefs in trials being brought against others. On account of the fact that most people don’t bring lawsuits against big companies – it usually goes the other way around – most cases are ones where they collaborate with the defense.

As someone who has been quoted in a brief on the law, I can tell you that a very large number of groups are actively trying to get the DMCA at least altered, if not overturned entirely (because that’s harder).

~ender says:

Perjury?

In my state, that means whoever was in charge of checking that box is going to be doing 2 years in prison for perjury. Also, if they were an acting agent of the corporation (which by saying XL SONY owned, etc), that means the corporation is guilty of committing a felony, which has a fine starting at $1 million dollars.

I suggest if either Google or “Adele Dubois” care about copyright, and related BS – and want to get this auto-DMCA stopped, that they start by filing criminal charges against XL SONY.

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