Fox Uses Bogus DMCA Claims To Censor Cory Doctorow's Book About Censorship

from the but-of-course dept

Torrentfreak has discovered that News Corp’s Fox studios has been sending DMCA notices taking down Cory Doctorow’s latest book, Homeland, which is available under a Creative Commons (Attribution-Noncommercial-NoDerivs) license, and can be freely shared. The issue? Fox is trying to take down unauthorized copies of its TV show that goes by the same name. And, in its rush to take down anything and everything that might possibly be its TV show, Doctorow’s authorized novel is collateral damage. The really crazy thing is that it should be obvious to any human looking over these takedowns that it’s not the TV show, as all of the links tend to have Doctorow’s name in them:

This is not a one-off thing. It is happening over and over and over and over and over again. It’s also worth pointing out that the actual takedowns are being sent by DTecNet. The same DTecNet that powers the infamous six strikes copyright alert system. I wonder if anyone’s been getting any strikes for downloading Cory’s novel….

When TorrentFreak asked Doctorow for comment, he joked, “I think you can safely say I’m incandescent with rage. BRING ME THE SEVERED HEAD OF RUPERT MURDOCH!” But, perhaps there’s a more serious response. In response to Doctorow tweeting about this last week, Paul Levy from Public Citizen — famous for defending people on the internet (including, at times, us) from bad things — responded by asking Doctorow if he wanted to litigate.

Stay tuned, because this might get interesting. Considering that these takedowns are happening at a critical moment for the book, just as it’s been launched, a very strong argument can be made that Fox has created tremendous damage for Doctorow and the success of the book. While the few attempts to go after those who send bogus DMCA takedowns haven’t had much success, an argument could be made that Doctorow’s situation presents a much stronger case.

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Comments on “Fox Uses Bogus DMCA Claims To Censor Cory Doctorow's Book About Censorship”

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119 Comments
Anonymous Coward says:

Re: Re: Re:

FRrom the Torrentfreak article

When we made this discovery back in February, Doctorow was more understanding. He told us that Tor Books sends out DMCA notices with his authorization, but only in instances where the book is wrapped in DRM, or when there?s another violation.

That is protecting his use of DRM free books, and presumably against someone else wrapping it in DRM.

Anonymous Coward says:

Re: Re:

this is the actual text from the torrentfreak page. i think it is a little different to how you have tried to make it out to be

‘When we made this discovery back in February, Doctorow was more understanding. He told us that Tor Books sends out DMCA notices with his authorization, but only in instances where the book is wrapped in DRM, or when there?s another violation.’

it still doesn’t alter the fact of what is happening here. and as for collateral damage, i reckon it’s bull shit. Fox is doing this on purpose. there is no bigger self righteous, blame switching arse hole that Murdoch. even when he was giving evidence over the phone hacking in the UK, he refused to take any responsibility for it, when it was his business!! what a prick!!

tomxp411 (profile) says:

Re: Re:

This is not an “exception” or an “anomaly”.

It’s a simple oversight that’s creating an inadvertent abuse of the DMCA: there’s no way these automated systems are actually downloading the offending content and ensuring that the content is indeed infringing.

I am certain that nobody is trying to censor Doctorow’s book, but the fact that he used the same title as a television show makes it easy for the Fox’s automated system to inadvertently flag the wrong thing.

The thing is, this is a fairly simple fix, and it’s all technological: the automated system being used by DTecNet ought to actually check the file type and size before sending out a DMCA notice.

The thing is, I don’t think this means Copyright is broken. This means that one particular enforcement system is broken: DTecNet needs to do a better job of actually determining whether a file actually infringes before filing a DMCA.

Doing so by name alone is not good enough.

From what I understand, there are remedies in the system for Doctorow, and I imagine he will be exercising them. Personally, I want to see this battle play out.

Anonymous Coward says:

Re: Re: Re:

“This means that one particular enforcement system is broken: DTecNet needs to do a better job of actually determining whether a file actually infringes before filing a DMCA.”

Unfotrunately, since DTechNet is being used by BIG companies, the chance that more files will be mistakenly-DMCAed is HUGE!
Doctrow shoud sue Fox for damages.
Fox would lose, then be forced to sue DTecNet for failure to provide contracted services (by providing a defective product)

JarHead (profile) says:

Re: Re: Re:

The thing is, this is a fairly simple fix, and it’s all technological: the automated system being used by DTecNet ought to actually check the file type and size before sending out a DMCA notice.

The thing is, it is NOT simple to fix using only technological/automated means. File type and size? That’s the easiest thing to spoof (intentional action) or collide (unintentional action). The next thing is using hashes, while it doesn’t deter spoofing 1 iota, it can decrease collision chance considerably.

While hashes seems like good news, consider it from copyright holder’s view. 2 same media file, one slightly modified (i.e. resized by 1px for visuals, or apply filtering on unused spectra for audio) yield to a very different hash, hence uncaught infringement. Developing methods precise enough to handle this problem is hard and expensive. It’s more easier to use “shoot 1st ask question never” approach cos DMCA is particularly weak in deterring this kind of approach.

The only sure way to satisfy both party (accuser and accused) is to have conscious human being (or something similar ;P ) to do the final arbitration, and that still do not account for further “complications” like fair use etc.

So
(hard/expensive method for doing it right) + (no reprisal) = abuse + (collateral damage)^3

tomxp411 (profile) says:

Re: Re: Re: Re:

In this kind of dragnet application, fair use doesn’t really apply.

What I could see working is automated analysis of the content of the video file: it would have to be rendered and compared to an official version of the work. If the first 10 minutes or so matches up, then it could be flagged as a match.

The thing is, I’m of two minds on this topic: as a software developer, I don’t like piracy, but as a freedom-loving Human being, I want to see the Copyright trolls shut down hardcore.

Chosen Reject (profile) says:

Re: Re: Re:

Doing so by name alone is not good enough.

And neither is file type and size going to do it either. File size might get you in the ballpark (a 10 KB file is probably not what you are looking for), but other than that what does a video named Homeland that is roughly the size of a one hour video (whatever that means) imply in terms of copyright infringement? Nothing more than to take a closer look. It might very well be infringement, it might be somebody else who has created a movie based on Doctorow’s book or their own work entirely, or it might even be a one hour review of Fox’s show that falls under fair use (perhaps not even showing a single clip from the show).

If you are going to state that your copyrights are being infringed, you need to know your copyrights are actually being infringed. The copyrighted work is the entirety of the work, not the title, not the type, and certainly not the size. And with the Lenz v. Universal case, the copyright holder also has to take Fair Use into account as well. If you can’t automate that, then you have no business filing a DMCA notice (under penalty of perjury I might add).

Cory should sue. Fox should lose. DTecNet should go out of business. But increasing the check for filesize and type simply reduces the space required to look into. It doesn’t tell you that you’ve found an occurrence of infringement.

ShivaFang (profile) says:

Re: Re: Re: Re:

The companies doing mass filings will never agree to file size checks. Most infringement comes via torrents which themselves are only a couple of KB in size, and they only have the name to go on with those.

The ‘problem’ is that piracy is so wide spread doing it by hand and having to actually validate each one would take way, way to much work and make the DMCA pretty much ineffective. (Problem in quotes because I would actually like to see the perjury penalty applied for misuse!)

Ed C. says:

Re: Re: Re:2 Re:

Yes, but not doing so leaves you open to perjury under the DMCA and copyfraud. DMCA is still the law, and they have a right to use it, but carpet bombing takedowns with nothing more than a keyword match is an outright abuse that cannot be possibility seen as being in “good faith”.

The problem with the DMCA takedown regime is that it’s not practical. It never was when it was first proposed, and never will be. The big publishers didn’t care if the powers granted by the DMCA would actually be usable, they just wanted the power.

PaulT (profile) says:

Re: Re: Re:2 Re:

“Most infringement comes via torrents which themselves are only a couple of KB in size, and they only have the name to go on with those.”

So? Open the file, join the stream and see what comes up. it should be relatively clear at that point, and you’re not breaking any laws if you have the authorisation of the copyright holder to do that. The size of the torrent file alone is irrelevant, unless you subscribe to the lie that offering a link or torrent file is the same as hosting the content itself.

Once again “it’s too hard” is NOT a valid excuse for taking shortcuts with copyright enforcement – especially when those shortcuts lead to independent artists and creators getting shut down despite not breaking any laws, let alone the service providers being hammer for things they had no involvement with one way or the other.

ltlw0lf (profile) says:

Re: Re: Re: He should

Traditional – honorable – remediations such as pillow fights or drinking contests are unavailing once the nuclear legal option is deployed.

There is precedence the other way though. I believe a game of Quake III was used (though I believe it was unsuccessful,) in Mojang vs. Bethesda. But it ended up being settled anyway and Mojang essentially won because they were allowed to keep the “Scrolls” name.

Anonymous Coward says:

Re: Re: He should

And yours is the ignorant outsiders’ answer to everything.

Just because some frivolous lawsuits are filed does not make all lawsuits frivolous. In this case, it wouldn’t be frivolous, and that makes you seem foolish for trotting out the tired old “sue-happy Americans” cliche.

In summation: get bent.

Anonymous Coward says:

Re: Re: Re:4 He should

“Mike Masnick is constantly trying to dilute the power of the DMCA and its notification system, and rightly so.”

Fixed that for you.

It can’t be denied that an increasing number of DMCA requests turn out to be bogus, just like this one. If the copyright maximalists insist on being allowed to file overly large amounts of takedown requests, then it’s only right that they be required to ensure that their claims are accurate.

A sensible precaution would be to make any false DMCA claim punishable by perjury. This would prevent occurrences like the article and may reduce the amount of claims filed overall.

Anonymous Coward says:

Re: Re: Re:5 He should

Yep false DMCA take downs should have some significant legal peril associated with them. I think a sliding scale of fines that increases geometrically with each infringement. One would expect that the sixth or seventh false take down would get the attention of the stock holders and corporate leadership. A thirteenth would bankrupt most companies.

First fine 1 x 10^0 -> $1
Second fine 1 x 10^1 -> $10
Third fine 1 x 10^2 -> $100
Fourth fine 1 x 10^3 -> $1,000
Fifth fine 1 x 10^4 -> $10,000
Sixth Fine 1 x 10^5 -> $100,000
Seventh fine 1 x 10^6 -> $1,000,000
Eighth fine 1 x 10^7 -> $10,000,000
Nineth fine 1 x 10^8 -> $100,000,000
Tenth fine 1 x 10^9 -> $1,000,000,000
Eleventh fine 1 x 10^10 -> $10,000,000,000
Twelfth fine 1 x 10^11 -> $100,000,000,000
Thirteenth fine 1 x 10^11 -> $1,000,000,000,000

Leigh Beadon (profile) says:

Re: Re: Re:2 He should

And just because some frivolous dmca notices are filed does not make all dmca notices frivolous.

Fair enough. Since you’ve got it all figured out, please enlighten us: what is the ratio of abuses to legitimate actions beyond which a law is in need of revision? Relatedly, what is the ratio beyond which reporting on the abuses is appropriate?

JP Jones (profile) says:

Re: Re: Re:2 He should

And just because some frivolous dmca notices are filed does not make all dmca notices frivolous.

So if you occasionally get speeding tickets when you weren’t speeding but you were driving a car that was the same color as a speeding car, that would be OK because some speeding tickets are given to the actual speeding car?

Also, instead of the police, you were pulled over by a private company that had no legal requirement to make sure you had actually broken any laws.

Thanks for pointing out the absurdity of your comment.

Killer_Tofu (profile) says:

Re: Re: Re: He should

Copyright is asserted through civil courts, so he will have to use the civil litigation process to assert his rights. That’s just how the system works.

Unless you are the RIAA or the MPAA, then you have the federal government skip the entire legal process and just start seizing everything they possibly can.

tomxp411 (profile) says:

Re: Re: Re:4 He should

That’s irrelevant.

If I understand correctly, the domain name seizure has nothing to do with RIAA’s members recovering damages. The domain name seizure is to stop further propagation of illegal content.

The damaged parties, the ones whose rights are violated as part of the illegal file trading, still have to use the civil court system to recover damages.

Killer_Tofu (profile) says:

Re: Re: Re:5 He should

Partially right about those who are “wronged”. However, quite wrong about the government needing to do anything about it.

If the government wants to view it as they have the right to take a domain, then they could be just a tad less hypocritical and still afford the websites the protections of section 230. A website is not liable for the actions of their users.

The whole thing is so obviously corrupt. The government just rushes to seize anything, no matter how legal it is in the country of its operations. The US is not the king of the internet and the gov should stay the heck away from trying to police the entire thing.

tomxp411 (profile) says:

Re: Re: one for the lawyers

I think so too.

IMO, filing a DMCA notice based on a filename alone should be considered abusive.

Now I can see how it would be prohibitively expensive to download every single infringing work out there, just to prove that it’s actually infringing, it’s simple for people to put up a file named “Homeland” that has nothing to do with the TV show.

It sounds to me like DTecNet just isn’t doing enough to verify the content they’re filing takedown notices on. That doesn’t mean the company should be put out of business, but I think a major overhaul of their methodology is in order here… along with an injunction to force them to stop filing takedowns until they have proven that their new system doesn’t file false positives.

beltorak (profile) says:

Re: Re: Re:3 one for the lawyers

the difference between this and the prenda circus is that prenda pissed off the court. the dmca takedown system is extrajudicial, meaning no court ever has to see it. and they have (honestly, sincerely) more important things to deal with than a bunch of entitled ostriches throwing a hissy over imaginary property rights.

therefore it seems that the solution must also be extrajudicial. there should be some way we, the people, should be able to call out and publicly shame those that abuse the dmca takedown provision.

ltlw0lf (profile) says:

Re: Re: Re:4 one for the lawyers

the difference between this and the prenda circus is that prenda pissed off the court. the dmca takedown system is extrajudicial

I agree, though this would be a perfect case for the owner to strike back. They took down material that was commercially available, which they had no copyright for, and as a result, it hurt another company. If anything should be considered unlawful interference of a business model, this should. This would be a perfect case for testing the limits of DMCA.

Lowestofthekeys (profile) says:

Re: one for the lawyers

“Does the presence of the string “Homeland” in a file name constitute a good-faith belief that the material is infringing?”

Good point, and one thing it relates to is the constant bickering on how Google does not enforce removal of copyrighted content the same way it enforces the removal of child pornography.

If these guys have such a hard time knowing what is, and isn’t infringing, how is Google supposed to do it?

Anonymous Coward says:

Re: one for the lawyers

I don’t think they can claim a good faith belief here. Claiming a good faith belief that something with that title is infringing without checking would be like looking in the phone book for Will Smith’s number and them claiming I have a good faith belief that it is the number of the actor. Maybe it is, but without further checking (like calling the number, or verifying that the address matches) it’s very likely I only have the number of someone with the same name.

“Homeland” was the title of a book even before Doctorow’s came out. Beyond that, it’s an actual word. It should be obvious to anyone that if you blindly send takedowns based only on a title containing “Homeland”, you’re going to get loads of material that aren’t the TV show.

I hope he litigates and gets not only damages but an injunction prohibiting them – both Fox and DTecNet – from sending takedown notices when they don’t know what they’re taking down.

Anonymous Coward says:

Re: Re:

@ S. T. Stone, Apr 22nd, 2013 @ 8:44am

OOTB in to defend Fox?s shenanigans in 5?4?3?

———–

Gosh, you’re as eager to see me as 10-year-old girls are to see Justin Bieber!

When will you dolts get over the us-them, for-with, Mike-Fox FALSE dichotomies? I’m be against Fox AND Mike, or ANY number of wrongs, all at the same time.

RD says:

So what happens to Fox now?

So, now that Fox has been shown to CLEARLY and unequivocally issued multiple takedowns that are both flatly fraudulent and perjurous (sp?), when do THEY get slapped with multimillion dollar fines and shut down IMMEDIATELY and keeping them down while their case is dragged slowly through the court system?

Why is it only the general public and fan/link/news sites that get taken out and issued lifetime-crippling fines?

out_of_the_blue says:

There's too many links to check!

How could Fox possibly know whether any given one is authorized?

2nd point is that all publicity is GOOD publicity: as a practical fact, this lifts obscure crap with FREE publicity.

3rd: “The really crazy thing is that it should be obvious to any human looking over these takedowns that it’s not the TV show, as all of the links tend to have Doctorow’s name in them:” — NO, WAIT A SEC! You’ve said MANY times that it’s NOT obvious, Mike! “Doctorow” could just be the tag name of a pirate: they’ve an urge to tack their names on what they stole.

No, I’m not defending Fox, just pointing out that the usual canards here can apply in the other direction.

Anyhoo, I encourage Doctorow to sue. — What have I got to lose? He either takes a bit of Fox’s money, or the case flops, perhaps even backfires and the automated take-down systems based on mere text are better validated.

Anonymous Coward says:

Re: There's too many links to check!

  1. So too big for your favourite corporations to check, just like Viacom. Got it.
  2. There’s publicity, and there’s egg-down-your-face scenarios.
  3. So it’s not obvious, and corporations should never sue for anything. I actually want the MPAA to come up with a film called “The”, and then see them sue every file with “The” in the title.
RD says:

Re: There's too many links to check!

“3rd: “The really crazy thing is that it should be obvious to any human looking over these takedowns that it’s not the TV show, as all of the links tend to have Doctorow’s name in them:” — NO, WAIT A SEC! You’ve said MANY times that it’s NOT obvious, Mike! “Doctorow” could just be the tag name of a pirate: they’ve an urge to tack their names on what they stole.

No, I’m not defending Fox, just pointing out that the usual canards here can apply in the other direction.”

How about those issuing the takedowns maybe, you know, INVESTIGATE and VERIFY before taking an ILLEGAL action to remove content that THEY DO NOT OWN? How about that, blue? How about they take some actual RESPONSIBILITY instead of just shooting at every single thing that MIGHT POSSIBLY be infringing?

Avatar28 (profile) says:

Re: There's too many links to check!

Okay, fine. If the name isn’t enough of a giveaway, how about the size? An ebook is going to be 1-2 MB at most. A tv episode is going to be MUCH larger. Oh, how about the file contents? Opening the torrent file or magnet link will give you the file names, none of which are video formats.

Anonymous Coward says:

Re: There's too many links to check!

“How could Fox possibly know whether any given one is authorized?”

They should know because they are the ones doing the authorizing. But if they do NOT know, then they should not state that they have a good faith belief that the work is infringing.

“There’s too many links to check!”

That’s sad, but that’s Fox’s problem. And the solution is not to take down everything. That would have been like the Boston police arresting everyone in the greater metropolitan area on the grounds that there were “too many people to check”.

PaulT (profile) says:

Re: Re: There's too many links to check!

“How could Fox possibly know whether any given one is authorized?”

It’s funny how that’s the defence used by the corporate worshippers, but the reverse – “How could Google possibly know whether any given one is authorized if Fox can’t even tell?” – is usually rejected when that’s pointed out. Their real aim is just to pass all responsibility on to 3rd parties and collect in court when they fail to achieve the impossible.

Anonymous Coward says:

Re: There's too many links to check!

“There’s too many links to check! How could Fox possibly know whether any given one is authorized?”

Perhaps if they had incentive to ensure that they were actually making a factual claim, they would take the time to check.

As I said above, the penalty of perjury for any false DMCA claim is sensible, and also well overdue.

Anonymous Coward says:

Re: Re:

But this one involves a newly published book. Doctorow will probably be able to show actual damages, unlike some guy who gets his cat video taken down. And it’s not some borderline fair-use case where he’s using a clip from the TV show or something.

And it also involves someone who cares about the issues involved, and someone from Public Citizen is asking if he wants to litigate. This means they may not settle for a small amount, as might otherwise happen. This may not end well for Fox and DTecNet.

tomxp411 (profile) says:

Re: Re: Re: Re:

The thing is, when the free version is blocked and removed from distribution, his First Amendment rights are being violated.

And when you violate someone’s civil rights, you can ask for more than statutory and real damages: you can also get punitive damages, which can add up to a lot more than just Doctorow’s lost revenue.

AndyD273 (profile) says:

Re: Re: Re: Re:

Not completely free, just creative commons:
http://us.macmillan.com/homeland-1/CoryDoctorow ($18)

He just doesn’t go after people who share the digital version because he uses the digital version as a promotional tool to advertise the print version, as well as promote the Cory Doctorow brand, among other things.
By taking down these files, they are censoring his advertising which can directly effect his book sales, and hurt his brand.
And yes, lots of people will buy the print version of something that they can get in an electronic version for free. Scott Sigler is another great example of this working.

PaulT (profile) says:

Re: Re: Re: Re:

Not necessarily, although he wouldn’t be able to use the idiotic “I’ll assume that my losses are equal to full retail price x number of copies downloaded” used by the corporates. Doctorow does make money from his books, he just gives people to option to access a free copy. I’d presume that he’d be able to use figures from previous releases under the same model. plus, he makes income from speaking on copyright issues, etc. He could conceivably claim damages there if his reputation has been damaged by takedowns on his work without his permission.

Sadly, it’s not only tough, but a direction he’s unlikely to follow, since he’s someone that doesn’t depend on court action and fantasy figures to make a living. A pity, because what’s really needed is some push back from the people being negatively affected by the corporate push to “protect” their product at all costs.

PaulT (profile) says:

Re: Re: Re:

“At what percentage do “outliers” start becoming “disturbing trend”?”

At a guess, the moment when a corporate product is taken down by an independent’s attempt at DMCA protection, at which case they’ll argue for protection against DMCA notices. Which they will then ignore as soon as they stand to benefit again – see also: fair use.

Anonymous Coward says:

Re: Re:

“An alternative to litigating is to DMCA all of Fox’s Homeland TV show content, including everything on fox.com.”
Is there any non-infringing Homeland TV show content other than the content on fox.com? Remember, you are dealing with dinosaurs here. The whole “Web 2.0” thing is alien to them, and they wouldn’t take down content on their own website.

Anonymous Coward says:

Re: Re: Re:

Ah, but here’s the fun part: once the Homeland videos on fox.com have been DMCA’d, if they refuse to take them down, they can be taken to court and put in a nice lose-lose situation: either they pay out scads of money, or they have to admit in a court of law that filename-matching is insufficient to identify a file, thus setting a useful precedent.

. . . We can dream, right?

ShivaFang (profile) says:

It’s important to realise that the DMCA notifications are made under penalty of perjury that the submitter actually owns the rights to the infringing work. I think a serious litigation for damages AND the perjury charge thrown in will be enough for these companies to wake up to the problems with their auto-submitting practices.

Either that or it will be just another ‘nuisance’ and they’ll go about their business (that’s more likely) but at least it will be a bit of a sting.

Anonymous Coward says:

Re: Re:

Wasn’t there a fairly recent ruling on a false DMCA claim that spent way to much focus that the perjured statement includes the claimant has a “good faith” belief that they own the copyright and that it was up to the person who had originally uploaded the work the impossible task of proving bad faith before they would apply the perjury penalty?

ShivaFang (profile) says:

Re: Re: Re:

Yes, that makes sense in keeping with “Innocent until proven guilty.” You have to prove that it isn’t in good faith.

I think in this case it should be obvious – the system is 100% automated with absolutely NO checks, and errors are made all the time. If the system worked reliably most of the time, they could say that they have good faith in their automated system, but with the number of errors that DO happen (and they know about these) I don’t think that ‘good faith’ can be applied here.

I don’t know if a Judge would agree with that reasoning, however.

Anonymous Coward says:

Re: Re: Re: Re:

Yes, that makes sense in keeping with “Innocent until proven guilty.” You have to prove that it isn’t in good faith.

Yeah, on the surface, that sounds reasonable. But in the case I recall the standard being set such that you had to be a mind reader to prove it, making it impossible to get actual relief for a false take-down.

Isn’t something like a false DMCA filing accusation supposed to fall under the lighter civil burden of proof, anyway?

Anonymous Coward says:

Seek an injunction

He should seek an injunction prohibiting Fox from issuing take downs on any of his works. In court, question Fox about why they don’t bother to be sure in the first place. Make sure to point out that Cory encourages his fans to convert his books into other formats. I think his fan base would go nuts converting into every known format just to ensure that Fox would have to spend lots of money to keep up.

anonymous says:

If people are getting strikes over this ...

If people are actually getting strikes over this, there’s a credible argument that it is harming the legitimate right of the copyright owner to get his work out to his fans. This is one of Cory Doctorow’s chosen distribution channels, which he has demonstrated is enormously successful. Blocking that channel with bogus claims can easily be shown to be harming him economically.

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