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Nielsen Joins The DMCA Abuse Party, Issues Takedown Of Publicly Available Ratings

from the I-hereby-swear-the-following-notice-is-ridiculous dept

Nielsen, perhaps alarmed at its own growing irrelevance in an era of cord-cutting, streaming and DVRs, has decided to dip a toe into the “bogus DMCA notice” waters. This move won’t make it any more relevant, but it should harvest it another set of detractors.

In a DMCA notice sent Feb. 26th, Nielsen attempts to claim ownership of publicly-available facts.

DMCA Notice of Copyright Infringement
Re: NASCARnomics (@nascarnomics)

Dear Twitter, Inc.:

I, [redacted] Associate General Counsel of The Nielsen Company (US), LLC, certify under penalty of perjury, that I am an agent authorized to act on behalf of the owner of certain intellectual property rights.

I have a good faith belief that the examples of the items or materials listed below. and all of the other multiple postings tweeted, are not authorized by law for use by the above named domain name owner or their agents and, therefore, infringes the copyright owner’s rights. Furthermore, the domain name owner has been posting this type of copyrighted Nielsen information on a continual and repeated basis. These are not just sporadic instances and have occurred on numerous occasions on a regular and continued basis and of which behavior you have been previously notified. Therefore, I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.

Following after this are several screenshots of Tweets by @nascarnomics, which appear to be charts generated using publicly-available Nielsen ratings of NASCAR races. These charts are made by Andrew Maness, who runs the NASCARnomics blog, which “provides relevant insights on the business, economics and statistics of NASCAR.”

Nielsen, for whatever reason, believes it “owns” these facts simply because it generates the numbers using its viewer tracking system. But literally anyone can use Nielsen’s published ratings. There’s nothing proprietary about the number “3.6” (where each full number represents 1.6 million viewers). Nielsen devices may have generated the number but the rating itself is, once published by the entity that “owns” it, a publicly-available fact.

Nielsen may also want to take a long, hard look at the Feist v. Rural case, which centered on the “copyrightability” of a collection of facts, i.e. a phone book. The Supreme Court ruled that the facts (phone numbers) were not protected by copyright, even if the collection as a whole (phone book) was. In Nielsen’s case, its original reports on demographics, viewing habits, etc. are protected by copyright, but the individual ratings, even as generated by Nielsen’s own devices, are not. Maness/NASCARnomics significantly alters the raw data of Nielsen ratings by focusing specifically on a very small part of Nielsen’s output — NASCAR racing. Furthermore, he creates his charts using his own collection of Nielsen data, further separating the facts (ratings) from Nielsen’s claimed copyright. (The legal team may also want to take a look at the more recent takedown attempt by the American Banking Association targeting a website’s publication of supposedly copyright-protected bank routing numbers — a failure of pretty much the same magnitude.)

At no point does the DMCA notice accuse Maness of accessing proprietary information (such as numbers Nielsen hasn’t disclosed). Instead, it simply claims that because Maness uses Nielsen ratings to compose his graphs, he is infringing on Nielsen’s copyright. Ridiculous.

Sadly, the abuse worked. The tweets mentioned directly in Nielsen’s DMCA notice have had the pictures “withheld.” On the bright side, the @nascarnomics Twitter feed routinely reposts content, so there are plenty more posts containing the DMCA’ed pictures. And Maness’ blog is still intact, so those graphs (as well as Maness’ analysis) can be found there as well. This takedown is even more ridiculous considering pretty much any internet entity covering anything TV-related routinely uses Nielsen’s publicly available ratings and all without getting hassled by Nielsen’s corporate attorneys. Maness could have mined this data from literally hundreds of places and yet it was these tweets that drew Nielsen’s interest.

Unless Nielsen’s lawyer is withholding information (the notice mentions that Nielsen has flagged this account previously) that the person behind NASCARnomics has access to actual proprietary or private information, there’s nothing legitimate about this takedown notice.

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Companies: nielsen

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Comments on “Nielsen Joins The DMCA Abuse Party, Issues Takedown Of Publicly Available Ratings”

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That One Guy (profile) says:

Re: Re: Re: Choose one:

1) The numbers are accurate representations of the data, meaning they are facts, and therefor not protected by copyright.

2) The numbers are not accurate representations of the data, in which case they are worse than useless(since faulty data is worse than no data at all most of the time), and not something anyone should be paying Nielson for, or basing their decisions on.

BernardoVerda says:

Re: Re: Re:2 Choose one:

Am I the only one recalling that ludicrous legal cat fight between the authors of The Holy Blood and the Holy Grail and the author of The Da Vinci Code?

Neither side of that copyright dispute wanted to admit that the “facts” in question were fiction.

So on one the authors of HB&HG were dancing around trying to deny that it was fiction, but still somehow assert copyright on supposed “historical facts”.

And on the other side, the author of DVC (Dan Brown, who may or may not have known better) needed to argue it was actual, meticulously researched history (and he additionally insisted he’d never read HB&HG) but couldn’t point to any credible historical research to back it up, so basically had to dance around admitting his vaunted “deep research” was a crock (the Judge picked up on it anyway, quite explicitly).

Next to that circus, this isn’t even an amuzing trifle.

That One Guy (profile) says:

Re: Re: Re:3 Choose one:

Oh the judge could have had so much fun with that one, were he so inclined…

‘As facts and historical data are not eligible for copyright protection, either your books are factual non-fiction, in which case while the books themselves may be protected by copyright, the facts in them are not, or they are not factual, and are instead fiction, in which case the ‘facts’ can indeed be protected by copyright. Pick your argument gentlemen, and keep in mind that whichever you go with will be made publicly known as soon as anyone is curious enough to check.’

Gwiz (profile) says:

Re: Re: Re: Red flag

….they are proprietary statistics owned by Nielsen.

Ummm…care to provide a definition of “proprietary statistics”?

I’ve Googled it and it appears to be a mostly a made-up term used by a few companies who are trying to protect their facts with fancy terms that aren’t based in any sort of law.

You guys need to bone-up on your copyright law.

Perhaps you should. As suggested in the article, Feist v. Rural is a really good place to start when it comes to copyright and facts.

Anonymous Coward says:

Advertisers should push back on this

Advertisers should push back on Nielson for this.

Advertisers: It seems that you don’t want us to know how people are watching shows and seeing our ads.

Nielson: Nonsense, we just don’t want it to be posted online!

Advertisers: Now why would that be?

Nielson: Protecting our copyrighted property!

Advertisers: Sounds like you have something to hide to us, we don’t trust you if your data isn’t allowed to be publicly discussed.

Nielson: But we’re the only group that supplies the numbers who watch shows, you have to trust us!

Advertisers: Yeah, about that, we think you’re a dying business with the decreasing numbers of TV viewers, and increasing number of cord cutters. We’re going to stop paying you for this information and just advertise elsewhere because you’re acting like you have something to hide in your data.

Mike Masnick (profile) says:

Re: Re:

Neilsen’s charts are their original work, created using their own unique polling data., and available via subscription.

The guy in question is not using their charts. It appears he’s using their numbers and creating his own charts. They have no copyright interest in the numbers.

If he was using their charts you’d have a point.

You’re a fucking idiot douchebag.

You might want to holster some of that anger, especially since you appear to be wrong.

Anonymous Coward says:

Re: Re:

Neilsen’s charts are their original work, created using their own unique polling data., and available via subscription.

Except these charts were not made by Neilsen. The guy made the charts himself Only the raw data was from Neilsen, and you cannot copyright data. Even if it WAS confidential data – and nobody is claiming this – it would not be covered under copyright.

Anonymous Coward says:

Re: Re:

how do the clauses, “under penalty of perjury,” and “I have a good faith belief,” when taken together not constitute a basis for action?

Because he only applied the “under penalty of perjury” to this line:

certify under penalty of perjury, that I am an agent authorized to act on behalf of the owner of certain intellectual property rights.

Obviously that much is true – he IS authorized to act on their behalf for certain IP rights, even if none of them apply to THIS case – so he technically did not commit perjury.

And a DMCA is not a court filing, either, so it would be hard for a judge to do anything about this. The guy whose stuff got taken down can sue over a false DMCA, but he’s limited to actual damages caused by the false notice and has to prove bad faith. Although I wonder if the lawyer who sent this could get in trouble with the bar?

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