In The Long History Of Specious DMCA Claims, This Is Definitely One Of Them

from the I'm-only-Twitter-and-what-is-this dept

Another batch of DMCA notices has just cleared the, um, Clearinghouse over at Chilling Effects, at least according to my RSS feed.

[Yes. I’m subscribed to the Chilling Effects Clearinghouse feed. This is the sort of thing one does when writing for a site like this. Informing people that you write for an IP-focused tech blog tends to conjure up images of empty pizza boxes and MTN Dew cans interspersed between overclocked hardware and various i- and e-devices. This feisty mess is overseen by a rowdy group of youngish journo-school dropouts who, when not tossing darts at a glowering portrait of Chris Dodd, are firing off heated Tweets at a variety of IP maximalists and making donations to the EFF in the US Chamber of Commerce’s name.

In reality, it’s more like a rather tired man of indeterminate age scrolling through a list of DMCA notices that are distinguished solely by the name of filing entity. The MTN Dew part is still accurate. Although it is the slightly less EXTREME! diet version.]

Sandwiched between several takedowns by Warner Music and undistinguished porn producers was one that said simply: [NONE]. I thought that was a bit strange, so I opened it up… and read one of the most tenuous ownership claims I’d ever read.

Description of original work: I am sure that I drew the picture.
The following link is the oldest post of my work.

https://twitter.com/ma31xte/status/266913131790475264

Here’s the image in question:

ジュダルちゃん描いたよー♥トレスだよー♥ twitter.com/ma31xte/status… — 杏仁はｽｹﾞｰｯﾏｼﾞでつい減 (@ma31xte) November 9, 2012

This might be a language barrier issue (the DMCA notice lists Tokyo as the originating location). If it isn’t, @ma31xte hasn’t done a great job proving ownership. Not that it matters. This is the original tweet, sporting the puportedly original artwork. The infringing tweet listed in the DMCA notice has already been removed, although it’s unclear if this happened before or after the DMCA notice arrived. (Twitter has no record of the tweet, suggesting the user deleted it. When Twitter handles it, the tweet is simply marked as “withheld.”)

Trying to figure out whether any infringement did take place is rather entertaining, if ultimately fruitless. By Tweeter or Twitter, the (allegedly) infringing tweet has been scrubbed. This aggregation/social networking site seems to have archived the disputed tweet (although the picture itself has vanished) but the combination of Japanese, Russian and unfamiliar memes makes it nearly impossible to pick up any usable information. Even if Japanese were my native language, I doubt anything would be any cleared up, what with all the talk of clam juice and the ritual abuse of Unicode.

Now, this certainly isn’t a case of blatant DMCA abuse. What it is though, is a byproduct of the system we have in place. Various platforms have incorporated DMCA reporting into their service, turning it into something anyone can use. And, as we see here, anyone does.

So, this is kind of funny and kind of sad and isn’t anywhere in the vicinity of a legitimate takedown. The system has been streamlined for maximum accessibility. Why? Because every heavily-used service can’t afford to not turn the DMCA process into a “New Infringement Found” Wizard that offers content removal with a few clicks. The people who pushed for the DMCA system to be implemented are the same people who think that everyone from the ISP to the web hosting company to the search engine should be preventing infringement by proactively determining whether uploaded content is legit. Because this task is impossible, the reporting system has been streamlined into a relatively painless process. (Although many complain [endlessly] that it’s still not painless enough.)

As entertaining as this takedown notice is, it’s still a minor indictment of the DMCA system. It’s pretty clear that anyone can grab a random URL and stake a claim on a piece of content and start taking down duplicates located anywhere else. These notices are rarely challenged and the content is usually taken down by the hosting service before any response can be offered. The lines about perjury and its consequences give it the heft of a legal document but in reality, the repercussions of issuing a bogus takedown remain as ethereal as the bits and bytes that the DMCA notice is composed of. We can enjoy a hearty LOL at the “I MADE THIS” claim presented here, but it’s obvious there’s really only one party that takes these sorts of notices seriously. It’s not the sender. It’s not the recipient. It’s the intermediary. Because they have the most at stake.

Filed Under: chilling effects, copyright, dmca