Dave Gorman, a Flickr user whose photo was taken down by a bogus DMCA notice
, is fighting with Flickr to get it to, if nothing else, change the way it handles takedown requests. Gorman's photo, along with all of its comments and views, was deleted based on the "strength" of a scatter-shot DMCA issued by Degban, supposedly on behalf of porn producers Wasteland.
Obviously, his photo was not property of Wasteland. While Degban's CEO continues to claim this is a result of having its software hacked (despite the fact that the alleged hacking occured 12 days after
the takedown notice was issued), Flickr has basically responded with... nothing.
Flickr's system for handling DMCA requests is even more screwed up than the DMCA process itself, if that can be believed. Gorman, artist that he is, has crafted a handy flowchart illustrating just how screwed Flickr users are if they should find themselves on the receiving end of a DMCA takedown
On the upside, if you are a US resident and the takedown is issued by a US-based company, all that will happen is the image itself will be removed and replaced with a message stating "THIS IMAGE HAS BEEN REMOVED DUE TO A CLAIM OF COPYRIGHT INFRINGEMENT." Once everything is sorted out, it's simply a matter of restoring the photo if the DMCA notice is challenged successfully. (Taken from Flickr's Help Forum
What does this mean?
-- US members will still receive a warning that contains the name of the complainant and now will include a link to the image where the content has been removed.
-- The original image will be stored by Flickr. Should we receive notice from the US Copyright Team to replace the original, we will be able to do so. *** Please note will be able to do so as long as the original photo.gne page is left in place. If a member chooses to delete the photo.gne page we'll assume that they're not interested further activity like restitution of the image. ***
-- The existing title, description, comments, tags, notes, etc. will be available. The image can still be added to sets and groups.
-- Blog This, Edit in Picnic, "replace this image" and the EXIF info will be disabled.
-- The image will be flagged NIPSA and as such will not return in search results nor be available in the API.
For the rest of the world
-- The existing process of photo removal will continue. We're going to begin reaching out to the other regional copyright teams to see if they would like us to enact this feature where they are. Given that the counter-claim process is unique to the DMCA, we'll need to work out how image restoration will work elsewhere.
Unfortunately, should you be a resident of any other country in the world, Flickr will continue to simply delete your photo and everything attached to it. Even if, as in Gorman's case, the DMCA takedown notice is successfully challenged, it is left up to the user to repost the image on their own. All attached comments are permanently gone, along with the view count, and anyone linking to that particular photo is left with a useless dead link.
Now, according to the terms of the DMCA, the service provider is supposed to replace the content it removed. Flickr is obviously not interested in doing that. It's not as if Flickr doesn't have the technology. Gorman pointed out on Twitter
that Flickr has restored deleted accounts in the past
, which means that a permanent backup of Gorman's entire page probably still resides on its servers. It even repaired external links for the user. But for some reason, Flickr is simply unwilling to fix this for Gorman or change how it handles foreign accounts.
Flickr did not respond to Gorman's emails. Yahoo!, which owns Flickr, did, but its "answers" were completely useless.
I have to communicate with flickr and Yahoo! separately. Flickr have yet to reply to a single email about it. Yahoo do reply. Eventually. It takes them 5 days. And then it's the kind of reply that doesn't actually reply to anything. Imagine typing a reply to someone who's asked 4 questions, knowing that you've not attempted to address 3 of them, and still ending it with the words, "we trust this answers your concerns"? It doesn't. And they know it doesn't. That's Yahoo.
Gorman did receive a phone call from Flickr's senior community manager, but found that conversation to be nearly as useless as Yahoo!'s incomplete answers
When I asked Zack if he could tell me why the rules were different for non-US based customers he said that he couldn't tell me. I asked if he knew and couldn't tell me because he wasn't allowed to or if he couldn't tell me because he simply didn't know. He replied that he couldn't tell me that either. When I asked if he thought they could replace the photo he said he didn't know. I told him that I knew they had managed to replace a whole account that had been deleted recently, and he told me that replacing an account was not the same as replacing a page. I asked him why he thought they didn't have to comply with the terms of the DMCA and replace the photo and he told me he wasn't able to answer questions like that.
I don't believe Zack's employers are giving him the tools required to do his job.
"If it's possible to replace the photo, will you do so?"
"Ack... I ... um... that's tricky... I can't say yes to that."
"But the only reason you wouldn't say yes to that, is if you can imagine a situation in which you discover it is possible but still don't do it?"
"And can you imagine that happening? Can you imagine one of your engineers saying that he can replace the photo... and you deciding not to do it?"
"So promise me that if it's possible to replace it, you will replace it."
"I don't think I can do that."
Following this disheartening phone call came Flickr's official response to Gorman's situation, and it appears that the photo service is not going to deal with this at all.
"After reviewing your recent correspondence, we have no further comments to make regarding this case, and consider it closed."
That's no way to run a social service on the internet. Your users are from all over the world, and while it is extremely difficult to play by the hydra-esque rules of a multitude of rightsholders, there are a million better ways to service the needs of your customers—and Gorman is indeed a paying customer with a Pro account. If the comment thread on Gorman's picture is any indication, Flickr is going to start leaking users simply because it refuses to budge an inch on its so-called DMCA response policy.