Copyright

by Mike Masnick


Filed Under:
censorship, copyright, dmca, takedowns

Companies:
adobe, markmonitor



Adobe Asked Google To Censor Techdirt's Story On How Adobe's DRM Got Cracked

from the oh-really-now? dept

Another day, another example of copyright being a tool for censorship. MarkMonitor is one of the largest companies out there in the "IP protection" business -- and they also have a decently long history of filing bogus DMCA notices. And in one of its recent ones... they targeted a Techdirt news story. You see, three years ago, our own Tim Cushing wrote a little story about how Adobe launched its Creative Cloud subscription offering and had the DRM on it cracked within 24 hours. It was a fun (yet all too predictable) story.

And apparently Adobe/MarkMonitor would like it to disappear from the web. With copyright. Here's the actual DMCA notice filed by MarkMonitor on behalf of Adobe:
Google, thankfully, has a team who reviews these things and rejected the demand. Of course, Adobe/MarkMonitor isn't really trying to censor a story that makes fun of Adobe. That's just collateral damage for the shitty job they do in trying to "protect copyright" by running automated scans. Who knows what actually set this one off, but likely some sort of combination of "creative cloud" and "cracked" -- and then (unlike Google, who actually bothers to review this stuff), MarkMonitor just sent it off without any actual human review.

So, yes, any "censorship" that came out of this would likely have been accidental, but just because censorship is accidental, it doesn't mean that it's inconsequential. The fact that companies that hire MarkMonitor have been rushing around demanding more automated takedown systems, and ridiculous notions like "notice and staydown" that would have created even more harm should be a warning as to why those ideas are a dangerous path.

Oh, and coincidentally, just as this was happening, MarkMonitor had a PR person reach out to see if an exec could speak to me on an unrelated (and uninteresting) story. I've asked them for a comment on their use of copyright to try to censor one of our stories instead. If I hear back, I'll add an update here... Update: And... here's the response from MarkMonitor:
We would like to assure you that MarkMonitor in no way condones censorship, nor does it intentionally take any action that would result in same. Our actions focus on enforcing brand infringements on behalf of our clients and acting in their best interests. In this case, the site in question came into our result set erroneously but the process we have with the search engines ensured that it was not taken down and is still live now.
I like how they claim that it's MarkMonitor's process that stopped the site from being blocked, rather than Google staffers looking over MarkMonitor's bogus takedown notice and saying "nah."

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  • icon
    Mason Wheeler (profile), 4 Nov 2016 @ 8:51am

    So, yes, any "censorship" that came out of this would likely have been accidental, but just because censorship is accidental, it doesn't mean that it's inconsequential.

    The term sin querer, quierendo immediately comes to mind.

    It comes from a Mexican sitcom called El Chavo del Ocho, a really bizarre show about a bunch of young children getting into all sorts of mishaps, except they were all played by actors who are obviously mature adults. (It gets weirder from there.)

    Chavo is really clumsy, but the accidents he causes frequently tend to cause trouble for rivals. His standard semi-apologetic catch phrase was "fue sin querer, quierendo," which kind of loses something in translation. "Sin querer" means literally "without wanting to," and is used where an English speaker would say "it was an accident!" But he then follows it with "quiriendo" (wanting to,) making the phrase translate very roughly as "it was an accident that happened on purpose!"

    These "accidents" with automated takedown systems (and with DMCS brokenness in general) have always seemed like obvious examples of sin querer, quierendo to me. They're screwing up in exactly the way they were designed to screw up, to provide plausible deniability for the tightening of censorship and control at the expense of Promoting The Progress.

    If it happened once or twice, we could be justified in calling it a legitimate accident. But when it keeps on happening, the same way, over and over and over, and no one causing the "accidents" is doing anything to fix them, it keeps getting harder and harder to believe it's not intentional.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Howard II, 4 Nov 2016 @ 9:54am

    I... just... wow.

    Of all the websites they could have picked on. Automated it may be, but *someone* programmed it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2016 @ 10:06am

    MarkMonitor Response...

    "I've asked them for a comment on their use of copyright to try to censor one of our stories instead. If I hear back, I'll add an update here..."

    It'll be the standard... Ummm...Welll...it's the software's fault.

    Idiots.

    The real response is: "We get paid for each DMCA notice sent, why would we want to limit our paycheck -- The incentive is for us to send them since there's no penalty for sending bogus notices."

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 4 Nov 2016 @ 10:25am

      Re: MarkMonitor Response...

      One day this will happen with drone strikes.

      /s

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2016 @ 10:30am

      Re: MarkMonitor Response...

      No, the real response is

      "If you accidentally infringe and you accidentally forget to respond you can be fined huge amounts of money. If you keep the content up and respond incorrectly thinking that you are right you can also be fined huge amounts of money.

      If we accidentally make a takedown request that uses up your time and resources to respond to we don't get punished at all. No risk for us, all the risk is on you.

      Therefore, we can get away with it and you can't so we don't make much of an effort not to get away with it. Why should we, we wrote the laws after all."

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2016 @ 10:29pm

      Re: MarkMonitor Response...

      There should be, since all DMCA notices are submitted under penalty of perjury.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 5 Nov 2016 @ 3:31am

        Re: Re: MarkMonitor Response...

        Theoretically anyway, but since it's legal to use DMCA bots, which can't swear squat it's not hard to see how empty that particular 'requirement' is.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Nov 2016 @ 9:08pm

          Re: Re: Re: MarkMonitor Response...

          "I didn't know that file was unauthorized; the computer should have known better!"

          Funny how that argument isn't permitted...

          reply to this | link to this | view in chronology ]

  • icon
    Mike Masnick (profile), 4 Nov 2016 @ 10:30am

    Updated

    I've updated the post with MarkMonitor's response.

    reply to this | link to this | view in chronology ]

    • identicon
      Tim A, 4 Nov 2016 @ 10:48am

      Re: Updated

      So they're trying to make it sound like they were being proactive. But if they actually were proactive, the false claim wouldn't have been made in the first place, and they wouldn't have to be so obviously lying about it.

      Too bad they don't put that much thought into what they do.

      reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 4 Nov 2016 @ 10:49am

    > In this case, the site in question came into our result set
    > erroneously but the process we have with the search engines
    > ensured that it was not taken down and is still live now.

    No, the fact that a search engine DOES NOT TAKE DOWN content it indexes is the reason that's it's still live now.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2016 @ 11:33am

    I wised up about Adobe years ago and refuse to use any of their offerings.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2016 @ 2:16pm

    Adobe Offers Techdirt A FOSS Version Of Flash Player

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 4 Nov 2016 @ 2:42pm

    Maybe someone should "accidentally" file a copyright claim against MarkMonitor's site.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 4 Nov 2016 @ 3:13pm

    From the same parent corporation that sends out 6 strikes notices... (IIRC)

    "We would like to assure you that MarkMonitor in no way condones censorship, nor does it intentionally take any action that would result in same. Our actions focus on enforcing brand infringements on behalf of our clients and acting in their best interests. In this case, the site in question came into our result set erroneously but the process we have with the search engines ensured that it was not taken down and is still live now."

    It is only intentional if a human looks at it, so we hide behind the shittiness of our system.

    'Brand Infringement' - where is that in copyright law? Perhaps you are trying to misuse copyright laws to try to enforce trademarks? Given the 'quality' of your notices...

    'site in question came into our result set erroneously but the process we have with the search engines'
    You mean the process that the search engine had to create because they are buried until billions of shitty takedown requests because you get paid by volume not quality?

    Let me cash in on past fame once again....
    Mark Monitor... when you absolutely positively want to look like idiots.
    https://www.techdirt.com/articles/20150504/07402630883/1000-year-old-village-told-to-stop-usi ng-name-because-trademark-claim-hotel-chain-founded-there.shtml#c48

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2016 @ 4:22pm

    "We would like to assure you that MarkMonitor in no way condones censorship, nor does it intentionally take any action that would result in same. Our actions focus on enforcing brand infringements on behalf of our clients and acting in their best interests. In this case, the site in question came into our result set erroneously but the process we have with the search engines ensured that it was not taken down and is still live now."

    I call BS.

    The hosting company that I work for uses MarkMonitor for our own brand management (much to my chagrin). When we first started using them, they told us that anything their system detects is sent to someone at our company who would review them and then indicate which hits would get a takedown notice. If that's really how it works, then MM never looks at the hits and easily just refer back to the rightsholder and say "well they told us to proceed."

    We also receive takedown notices from MarkMonitor all the time. I can recall a case where they submitted a complaint against two words on a particular customer's site that happened to also be a trademark. There was no way that any sane person looking at the sites would ever conclude that infringement was taking place, even if the customer's site was a competing business (Imagine if the trademark was "Public Blog" and the site said "we are a public blog site hosted in the USA" - That's about how silly it was). So we emailed MarkMonitor back and asked them to clarify exactly what was infringing because we didn't see anything. They emailed back with a screenshot highlighting those two words. So, a person at MM had to actually look at that site and then double down on the "infringement" claim.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2016 @ 5:28pm

    They should have tried using the Right to be Forgotten procedure instead. That would make for an even better story.

    reply to this | link to this | view in chronology ]


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