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.