Questionable DMCA Takedown Notice Filed Over Post Calling Lawyer Out For Copyright Infringement
from the carl-david-ceder-is-a-bad-lawyer dept
Now, there are lots of ways to deal with this kind of thing. One could admit it was a mistake, but that doesn't seem to be in Carl David Ceder's nature. And, of course, around here, we're certainly willing to consider fair use arguments for copying material, though Carl presents none, and, indeed, it appears there's little fair use claim he could make for what he did. There's a pretty strong argument that he engaged in both plagiarism (claiming someone else's work as your own) and copyright infringement, and from his response, didn't appear to understand either issue, or why some people were concerned about it.
But, today, about a year and a half after Greenfield's original post, it appears that Carl David Ceder has discovered copyright law, but for all the wrong reasons. He sent not one, not two, but three DMCA takedowns for Greenfield's original post. Here's the first one that gets some pretty basic stuff about copyright law wrong:
Now, there are lots of things wrong with this. First off, using an official headshot in reporting on someone is not copyright infringement. It's fair use. This is actually an issue that's come up in court multiple times, and it's always considered fair use. There was the case a few years back of a gripes site that used professional headshots and got sued for infringement. In that case, it was determined that the use of the headshots was fair use and that the lawsuit was clearly a SLAPP suit designed to silence the site. More recently, in a more political context, a judge ruled that using a political headshot on a blog post was also fair use. So, the claim of copyright infringement here is already pretty damn weak.
Perhaps more importantly, as Carl David Ceder seems to directly admit in one of the DMCA takedown notices, he doesn't even hold the copyright in question. Instead, he got the photo taken at his local JC Penney photo studio (classy!), and they retain the copyright, but have granted him a limited license to use the photo. From one of the DMCA notices:
A website that your company hosts (according to WHOIS information) is infringing on at least one copyright owned by my company. An photograph of myself, that has a valid copyright by Lifetouch Portrait Studios Inc (“Lifetouch”) – which I have expressed permission to use, as an authorized user, to reproduce, distribute, and display my photograph.This copyrighted material was copied onto your servers without permission. “Lifetouch” only gave authorized permission for me to use it – they were the photographers when I took this professional headshot. Please find the original document indicated this has a valid copyright, and it is being used in violation of copyright laws, and is infringing on valid copyright laws that apply to the contents of what is in this post. It is noted on the copyright authorization form, that ”Federal and State copyright laws provide that the author of a work is the owner of it. Copying a work WITHOUT the author’s permission is a violation of the law. The only permission given is to the owner of the CD given with the images on it.” The copyright authorization form expre ssly states, “Any other copying is a violation of the copyright law and may subject the violater to criminal and civil prosecution.”If you'd like, you can also see the full copyright authorization notice. It's a pretty typical authorization notice from these kinds of studios, but Cedar seems to miss out on the fact that while it is giving him a license to reproduce or display the image, that does not necessarily give him the authorization to issue a legal threat over it as he is not the copyright holder. Nor does it appear that he is officially representing the actual copyright holder. Instead, he just quotes some of the authorization, which he appears to totally misunderstand. In giving him a non-exclusive license, Lifetouch still retains the actual copyright, and thus is the only one who can issue such a takedown or take any legal action over the photograph (which it shouldn't do because it's clearly fair use anyway).
And while it's unlikely that Lifetouch gave anyone else a license to use Ceder's image, he doesn't actually know that. Greenfield certainly didn't need a license (it's fair use), but he simply assumes that because Lifetouch gave him a non-exclusive license, it didn't give one to anyone else. Yet he has no evidence of that at all.
Finally, while Ceder quotes the silly and misleading copyright language on the authorization form, that language was meant for him and not for others. That language has no actual impact on Greenfield's use, which again is clearly protected fair use. Besides, that copyright notice is pretty bogus. Even referencing state copyright laws makes no sense, because photographs are strictly covered by federal copyright law, not state copyright laws (which, other than the rare exception of pre-1972 sound recordings, basically doesn't even exist any more). And, again, using a headshot in a blog post with commentary about the person is well-established fair use, so the bogus claim that any copying is infringement is just wrong.
But, really, it's especially silly and ridiculous that this is coming from a guy who pretty clearly did infringe someone else's copyright in copying their entire article, and he's now using his total misunderstanding of copyright to claim that any copying is infringement.
So, hopefully either Greenfield will file a counternotice or the legal team at CloudFlare will reject such a bogus takedown notice (fwiw, CloudFlare probably doesn't host the site anyway, and could only pass on the notice to the actual host). And Carl David Ceder remains on display as a lawyer who doesn't seem to get copyright law at all, and also has a habit of reacting badly to people calling him out for his own bad behavior. Trying to censor Greenfield's post calling him out is pretty ridiculous. Abusing the law by filing a bogus DMCA takedown, falsely representing himself as the copyright holder (or representing the copyright holder), is even more problematic.
Oh, and finally, I emailed Ceder using the email address he included in the DMCA takedown notice which he said was there to email him if CloudFlare wanted "further information." I asked him a few questions about the notice, but the email immediately bounced back, saying that it was an "alias" that was not found on Office365. But... then Carl emailed me back anyway (suggesting that the email does work, but he also tried to set up some sort of alias that failed), claiming he had no idea what I was talking about and didn't even know what the DMCA was. This seems... difficult to believe. The DMCA notice appears to come from his email, and has his signature file as well. It links to a version of that JC Penney copyright authorization that was uploaded to a Scribd account today on an account named "CarlDavid Ceder."
Update: In a series of emails since this post went live, Carl has insisted that he has not read the post, but insisted that he put this matter all behind him, and wanted me to make sure I mentioned that he's now Facebook friends with Dan Hull -- the individual whose work he initially copied -- and also a fan of Brian Tannebaum, another legal blogger we've mentioned here in the past (I'm not even sure what his complaint with Tannebaum is about). He has not yet explained how this DMCA notice was sent (though he insists he doesn't even know what it is). So now I've mentioned both points. It still doesn't explain the DMCA notice at all. Anyway, here's what Carl David Ceder wants me to make sure I put in my post:
In your post, did you mention any of the nice things I mentioned about Dan Hull and Brian Tannebaum? Or did you leave that out. I would like to talk to you in person - because you are being very unclear with your e-mail messages. If you are going to write something about this, I would appreciate you mentioning how, without any time to reflect on how to respond, my first reaction was how me and Dan Hull and have not only reconciled, but have put this matter way behind us. Brian Tannebaum was related to the matter that happened years ago - and I hope you mentioned how I spoke only positively about his new book, and also the e-book he wrote long ago about clients. As a reporter, I hope you did cover the whole truth and all the facts, including the ones mentioned above. I'm not exactly sure what you are accusing me of honestly, but what I do know is I was trying to communicate this matter was put behind me literally years ago. And based on what I said about Hull and Tannebaum, what motive would I have to do something that would bring to the forefront something that happened literally years ago. I still haven't read your article, but I do hope if you did mention things from our correspondence, you reported the whole truth - and did not choose to selectively decide only to include things that would create better fodder for a story where there probably isn't one. Also, I'm not sure if you are an attorney and just blog, but if you are in the legal field, you no doubt realize how time consuming a trial that I am about to begin in two days can consume almost all of your time. As I type this, I am going to interview a potential witness to fully prepare. You seemed to indicate that whatever was done was recent. Look up the Collin County court records and the name of the person I have a trial set for Wednesday. It's a 2nd degree Felony charge with huge ramifications that hinge on the outcome. In your analysis, I hope you considered how unlikely it would be for an attorney to have time to do whatever it is you think was done. I spent almost all of Sunday (yesterday) at the Collin County jail prepping my client for testifying. This is also public record - check the Collin County jail list. You will see where I've spent my time the last 72 hours or so.So there's that. Don't let it be said that I didn't give him a chance to present his side.