Copyright

by Timothy Geigner


Filed Under:
copyright, dmca, notice and takedown

Companies:
soundcloud



SoundCloud Troll Getting DMCA Takedowns Shows The Weakness Of Notice And Takedown Systems

from the dmca-terrorism dept

Much has been written at this point about the problems with various "notice and takedown" policies, including in the DMCA. Much of the problems arise from the DMCA's requirement that service providers "expeditiously" remove infringing material upon notice, which naturally leads to platforms erring on the side of removal versus taking a hard -- and manual -- look at the material in question to see if it's really infringing. This results in all kinds of takedowns of speech that is not infringing, typically as a result of human error, a dispute over the actual ownership of rights, a lack of recognizing fair use, or, perhaps most often, an automated system for sending DMCAs simply screwing up.

But another weakness in the notice and takedown policy is in how much power it places in the hands of trolls and bad actors to simply fuck with people. This can be seen in action in the case of one SoundCloud troll getting all kinds of music taken down by pretending to be a rights holder.

Multiple bass music artists have alleged that their tracks have been removed from SoundCloud for wrongful copyright claims. Working under an account by the name "Dr Egg," an unknown user reportedly made copyright violation claims against multiple artists, which these artists are claiming resulting in the removals. In the SoundCloud platform, uploads can be taken down for copyright violations if SoundCloud receives an email making a claim against the track. A copyright violation occurs when someone uses a sample or part of a song that was already copyrighted by another artist or company. Currently, it only takes one claim to have a track removed and it may be reinstated if the claim is proven false.

According to reply emails from SoundCloud to the artists in question, "Dr Egg" used email addresses that pointed to Moonboy (moonboycreator@outlook.com) and Too Vain(toovain@outlook.com) to make these strikes. The user appears to have falsified Moonboy's (Jaime Madsen) signature and used his name on the copyright infringement claims. Moonboy made a video on Twitter to speak out against the fraud.

That the policy can be weaponized for nihilistic mayhem in this way at all is a clear signal that changes need to be made. That this doesn't happen constantly is not a defense of the policy. Good internet policy is not that which can be easily subverted by impersonating another person, because that happens all the time on the internet. And, when coupled with platforms being incentivized only in the direction of quick takedown of art and speech, that causes a massive speech issue that would make the founding fathers go into a rage.

In this case, SoundCloud did manage to get the uploads in question restored.

A spokesperson on behalf of SoundCloud has responded to EDM.com with the following statement:

"Our takedown notification process is designed to respect copyright, and it is our policy to review all infringement claims per the guidelines outlined in our Help Center. Upon review, we have determined these copyright claims are not valid, and are happy to report we’ve reinstated all affected content."

Which is all well and good, but we still have a problem. And I'm pretty sure the impetus for that problem can be found in the very first line of SoundCloud's statement: "Our takedown notification process is designed to respect copyright...". You may notice that there is no mention of speech and art in the statement at all. This is, again, because all of the incentives in the DMCA's notice and takedown provisions push platforms to favor copyright over art -- which is anathema to the principles of free speech.


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  • icon
    That One Guy (profile), 20 Nov 2018 @ 11:19am

    '... claims of it anyway.'

    "Our takedown notification process is designed to respect copyright...". You may notice that there is no mention of speech and art in the statement at all. This is, again, because all of the incentives in the DMCA's notice and takedown provisions push platforms to favor copyright over art -- which is anathema to the principles of free speech.

    It gets worse actually, because if infringing material must be taken down quickly because having it there harms the copyright owner, then much worse is taking down someone's non-infringing work, as that provides actual harm in that it's no longer available due to a fraudulent/bogus claim.

    One could argue that the DMCA process itself doesn't 'respect copyright', in that it can be trivially turned against someone's copyrighted works and have them removed on nothing more than an accusation, with the creator's so affected only being able to respond after the fact. A law/system that was intended to 'respect copyright'/protect creators would have in place mechanisms to not only get rid of violations but also protect non-violating works, yet the DMCA and systems put in place to comply with it very rarely have more than a nod to the latter, if that.

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

    • icon
      Mason Wheeler (profile), 20 Nov 2018 @ 2:27pm

      Re: '... claims of it anyway.'

      Exactly! One of the most important aspects of copyright law (it's right there in the name, afterall,) is that it's law. Law has important principles attached to it, such as Due Process and the Presumption of Innocence. And the DMCA tramples all over these principles.

      We need to fix this. Instead of the DMCA, we need to establish a framework rooted in the rule of law, in which piracy is the copyright holder's problem, and they have no right to make it my problem until such time as they manage to prove in a court of law that I am part of the problem. Just like any other law.

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

  • icon
    hij (profile), 20 Nov 2018 @ 2:38pm

    The Burden Is On The Wrong Person

    There is no way an artist can "prove" that another work has not been sampled or used in a given piece. This is not a real standard that can be applied in a consistent way, and it can only be applied in arbitrarily. The burden of proof is on the wrong party.

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

  • identicon
    Anonymous Cowherd, 20 Nov 2018 @ 4:14pm

    Poor choice of words

    I wouldn't be so quick to use the word "happy" when admitting that your takedown notification process is designed to allow random internet trolls to censor anything they want with a single email.

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

    • identicon
      Anonymous Coward, 21 Nov 2018 @ 8:39am

      Re: Poor choice of words

      Unfortunately any DMCA pleasing takedown process, not just Soundclouds, shoots first and asks questions later. So, they are not admitting any previously unknown shameful things. If anything they are just laying bare the ugliness of the system.

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

  • identicon
    Anonymous Coward, 20 Nov 2018 @ 4:41pm

    What took so long for obvious abuse to happen?

    Or maybe it has and copyright enforcers are covering it up...

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

  • icon
    Mononymous Tim (profile), 20 Nov 2018 @ 4:46pm

    ...@outlook.com

    Red flag!

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

  • identicon
    Timothy Geigner, 20 Nov 2018 @ 5:18pm

    Impersonation on the internet is not a problem.

    It's easy to verify identities online and falsification is unheard of.

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

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 6:34pm

      Re: Impersonation on the internet is not a problem.

      Huh? Take a look at my inbox. It's loaded with spam impersonating itself as paypal, etc. Also, a URL is not a verified id of the email sender. A DMCA take down should be ignored if the real id of the sender cannot be verified.

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

  • icon
    Gary (profile), 20 Nov 2018 @ 5:37pm

    Copyright?

    All copyrighted material must be taken down immediately.
    All affixed content is copyrighted.
    Therefore: All content must be taken down preemptively.

    CBS Online? Copyrighted - take it down!
    Block it at the ISP Level!

    Netflix? Obviously block it at the trunk - it's tripped all the filters!

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Jess Passin, 20 Nov 2018 @ 6:12pm

    OKAY, what "changes need to be made"?

    Rule out doing away with DMCA and copyright altogether, not going to happen.

    Now what?

    It's YOU and Masnick who believe that teh internets is a place where children and unicorns can frolic without care. -- AND that's basically all you have until you at least propose a fix.

    Rest of us struggle along among thieves and liars, thinking that most people are honest, that they're not pirates who steal content and then make up every excuse possible for it.

    What you need do, Timmy, is quit supporting those you know are thieves -- some several of those are handy to address right here -- and quit excusing their thefts of copyrighted content. The cultural milieu starts with your powerful voice admonishing the obvious, NOT excusing them.

    We can only hope that civilization holds up instead of collapses with large numbers of thieves and dopers doing their tiny bit to chip away at it. Do your part. At least QUIT helping the vandals.

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

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 6:27pm

      Re: OKAY, what "changes need to be made"?

      What a surprise, you're here screaming on behalf of corporations again.

      You like the DMCA so much? Have a DMCA vote.

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

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 7:22pm

      Re: OKAY, what "changes need to be made"?

      Wow, it's so complicated. There is simply no alternative besides instantly taking down content on unconfirmed accusations.

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

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 7:59pm

      Re: OKAY, Liars gonna lie

      Thank you for giving Techdirt your copyrighted works for free everyday.

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

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 8:07pm

      Re: Productive member of society

      How many hours have you spent on Techdirt today?

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

    • icon
      Stephen T. Stone (profile), 20 Nov 2018 @ 9:57pm

      Re: OKAY, what "changes need to be made"?

      Now what?

      Create a notice-and-counternotice system and introduce stiffer penalties for filing a false DMCA claim (which could include legally preventing someone from filing DMCA claims).

      Rest of us struggle along among thieves and liars, thinking that most people are honest, that they're not pirates who steal content and then make up every excuse possible for it.

      Prove otherwise.

      quit supporting those you know are thieves … and quit excusing their thefts of copyrighted content

      Copyright infringement is not theft. If it were theft, you could tell me what was stolen from the possession of the original artist—and no, “potential” income does not count.

      The cultural milieu starts with your powerful voice admonishing the obvious, NOT excusing them.

      And what, then, would you suggest he suggest we do to stomp out piracy? What solutions can you offer that do not change the Internet from a global communications network to a one-way media delivery system controlled by major media conglomerates? What grand idea do you have that can somehow “protect copyright”, in the obviously strictest terms possible, without destroying the principles of Fair Use and blocking the publication otherwise-legal speech? You want to decry the lack of suggestions for cracking down on piracy, but you fail to offer any of your own—and if I had to guess, you avoid doing so because you know that any solution you can think of would run afoul of the First Amendment.

      We can only hope that civilization holds up instead of collapses with large numbers of thieves and dopers doing their tiny bit to chip away at it.

      I can only hope that you stop thinking of Internet piracy as a extinction-level event on par with global climate change.

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

      • identicon
        Anonymous Coward, 21 Nov 2018 @ 12:26pm

        Re: Re: OKAY, what "changes need to be made"?

        What grand idea do you have that can somehow “protect copyright”,

        Protect some copyright. Just the instances of copyright they think should be protected. And i don't know why, but some people always think the complainant is the one in the right. Not the copyright holder who is harmed by malicious or pathetically erroneous takedown notices. They somehow cannot wrap their heads around the fact that this is a harm to copyright and creators, just as infringement and other issues are.

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

      • icon
        The Wanderer (profile), 24 Nov 2018 @ 5:31am

        Re: Re: OKAY, what "changes need to be made"?

        Copyright infringement is not theft. If it were theft, you could tell me what was stolen from the possession of the original artist—and no, “potential” income does not count.

        Control.

        Copyright says "I have exclusive control over the creation of copies of this". If you create a copy without permission from me, I no longer (can think that I) possess that control. Thus, copyright infringement constitutes theft of control.

        Some of the copyright maximalists may even admit that that's the real focus of their objections to (what they call) piracy.

        Some of them might even extend it further, to "if I don't have the control, then I don't have the copyright, and therefore by (taking away/flouting/ignoring/rejecting) the control you have taken away the copyright, and therefore by creating the copy outside of my control you have stolen the copyright, and therefore it really is theft of copyright after all!".

        That's a twisted line of logic, but I think it may represent the internal "reasoning" (probably largely subconscious or retroactive-justification) behind the examples of "copyright is stealing" which don't just represent having not considered the ways in which physical theft isn't the same as copyright infringement.

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

        • icon
          That One Guy (profile), 24 Nov 2018 @ 11:42am

          Re: Re: Re: OKAY, what "changes need to be made"?

          Copyright says "I have exclusive control over the creation of copies of this". If you create a copy without permission from me, I no longer (can think that I) possess that control. Thus, copyright infringement constitutes theft of control.

          Which is a stretch of the term 'theft' that would put industrial rubber bands and/or bungee cords to shame.

          As someone else has pointed out recently, there is actually a valid use of 'theft' with regards to copyright, yet infringement isn't it. Instead, it's when people claim to own copyright that isn't their's, such that there's an actual loss of control/profits, and where the ownership over the copyright has actually been 'lost'/attributed to the wrong person, albeit temporarily.

          Some of them might even extend it further, to "if I don't have the control, then I don't have the copyright, and therefore by (taking away/flouting/ignoring/rejecting) the control you have taken away the copyright, and therefore by creating the copy outside of my control you have stolen the copyright, and therefore it really is theft of copyright after all!".

          An argument you can shoot down simply by pointing out that if they really did have their copyright stolen, such that they no longer have it, then they no longer have any legal rights to the work in question, such that they cannot issue takedowns for it, nor demand compensation for infringing use. Since they can still do that, no matter how much a copyright has been infringed on, it's pretty clear that they still have it.

          'If I don't have total control/ownership then I don't have any control/ownership at all' is a blatant false dichotomy. Just because a copyright has been infringed does not mean they magically lose everything related to it.

          That's a twisted line of logic, but I think it may represent the internal "reasoning" (probably largely subconscious or retroactive-justification) behind the examples of "copyright is stealing" which don't just represent having not considered the ways in which physical theft isn't the same as copyright infringement.

          Pretty sure you're vastly overthinking it, and that for almost all cases the 'copyright is theft!' argument is used either because they've heard it before and are just parroting it, or purely for the emotional impact of using 'theft' instead of 'infringement'.

          In the end though if they really want to push the idea that copyright infringement = theft you could easily call their 'bluff' by asking them if they want infringement to be treated the same legally as theft, with a much higher standard of evidence demanded('you claim they cost you X? Prove it.') and much, much lower fines(well under $100 for an album's worth of infringing music rather than tens/hundreds of thousands, with the numbers of money 'lost' due to infringement on a country/global scale absolutely tanking as a result).

          I strongly suspect that the overwhelming majority of those pushing the conflation between the two terms wouldn't be willing to accept the two actually being treated as the same.

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

          • icon
            The Wanderer (profile), 25 Nov 2018 @ 5:44am

            Re: Re: Re: Re: OKAY, what "changes need to be made"?

            As someone else has pointed out recently, there is actually a valid use of 'theft' with regards to copyright, yet infringement isn't it. Instead, it's when people claim to own copyright that isn't their's, such that there's an actual loss of control/profits, and where the ownership over the copyright has actually been 'lost'/attributed to the wrong person, albeit temporarily.

            Well, yes; I'm well aware of that valid sense of the term, but it clearly doesn't apply to the usage that was being addressed, and I thought it was well enough understood to go without being pointed out in this instance.

            An argument you can shoot down simply by pointing out that if they really did have their copyright stolen, such that they no longer have it, then they no longer have any legal rights to the work in question, such that they cannot issue takedowns for it, nor demand compensation for infringing use. Since they can still do that, no matter how much a copyright has been infringed on, it's pretty clear that they still have it.

            While this is true, I think there's still some ground to stand on about the "taking away exclusivity" part of it, though just at the moment I find holes in the argument every time I try to phrase it.

            There's also the angle that "if all tools for effectively enforcing the copyright (takedowns, et cetera) are being denied/opposed (as violative of other rights), then the copyright effectively does not actually exist no matter what the law may say" - which, you may note, is basically a rephrasing of some of the arguments used by the copyright-maximalist trolls hereabouts.

            As is frequently pointed out in other aspects of the copyright discussions on Techdirt: it's all about control. This is just another way in which that manifests.

            I strongly suspect that the overwhelming majority of those pushing the conflation between the two terms wouldn't be willing to accept the two actually being treated as the same.

            Oh, I wholeheartedly agree. At the very minimum, the penalties for "commercial infringement" need to be radically adjusted; as I understand matters, they were originally set when commercial infringement was conceived of as having such a high bar to entry that any operation infringing on a scale which could qualify as "commercial" would have to be carried out by what is basically a medium- to large-scale business organization, in the business of creating/moving/selling counterfeit products, and were calibrated both to appropriately penalize that type of operation and to effectively counter all the profits from the transactions in the operation that didn't get caught. Neither of those principles applies to the types of copying that is being classified as "commercial infringement" nowadays, and so the statutory penalties are grossly out of proportion.

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

  • identicon
    Anonymous Coward, 21 Nov 2018 @ 5:07am

    How "Moronic" ("of the genus Morone")

    "Bass music" takedowns sounded fishy to me even before I heard that Dr Egg was abusing Moonboy's reputation.

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


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