Remember Roca Labs? The somewhat shady manufacturer of some goop that the company claimed was an "alternative to gastric bypass surgery." This was the company that initially sued the site PissedConsumer.com because it was hosting negative reviews of Roca's product -- and Roca claimed that because it pressured buyers into a gag clause saying they wouldn't say anything bad about the product, that PissedConsumer was engaged in tortious interference. There was a lot more as well, including threatening to sue us at Techdirt (more than once!) for reporting on the case, suing Pissed Consumer's lawyer Marc Randazza for defamation and a variety of other shenanigans (even including some bizarre side stories on Nevada politics, despite it being a Florida company). Anyway, late last year the FTC smacked down Roca for its misleading marketing and its non-disparagement clauses. Roca is still fighting that fight, but soon after it also lost the case against PissedConsumer.
However, there was (yet another) separate legal fight that didn't get much attention in all of this. In late 2014, we had reported that, in continuing with its efforts to hide any negative reviews, Roca Labs had sent a clearly bogus DMCA takedown to Google (see it here), claiming that the reviews on PissedConsumer's site violated its copyrights. What I had not realized was PissedConsumer actually had filed a separate lawsuit against Roca back in January of 2015, focused solely on these bogus DMCA takedowns, arguing that they had violated the infamous DMCA 512(f) clause on bogus takedowns.
As we've noted, 512(f) cases are rarely successful, as courts don't seem to care much about them, and the law is written in such a manner that it's usually pretty easy to dance around a claim of "misrepresentation" in a DMCA takedown. And, in this case, the court dismissed the case, by basically saying that it was really nothing more than a counterclaim in the other, original, case filed by Roca. However, in a somewhat surprising move (actually, very surprising), the court has now agreed that the decision to dismiss the case was a mistake, and that this is a separate issue from the original case, and not a counterclaim. The reasoning is somewhat technical and procedural, but at the very least, it appears that the case against Roca for abusing the DMCA is back on track.
What is it with political campaigns issuing totally bogus takedown notices? It happens all too frequently, especially with presidential campaigns. But the latest example may be the stupidest one we've seen to date. The folks at the Lumen Database (formerly Chilling Effects) alert us to the ridiculous news that Bernie Sanders' campain issued a bogus DMCA notice to the Wikimedia Foundation, because Wikimedia Commons has hosted some Sanders' logos.
You can read the full takedown letter here, sent by a redacted lawyer at Garvey Schubert Barer, a firm that claims to have expertise in intellectual property law. If that's true, they sure don't show it in this letter. First of all, they're sending a DMCA notice, which only applies to copyright, but posting campaign logos is hardly copyright infringement. When you're talking about logos, at best you're talking trademark, but that's not an issue here either. Whether it's trademark or copyright, Wikimedia hosting campaign logos is clearly fair use. If they're really arguing copyright, then it's an easy fair use call. If it's trademark, there's no "use in commerce" on the Wikimedia side, and no likelihood of confusion. Either one is simply stupid to argue.
Separately, these are campaign logos which are advertising for the campaign. What kind of clueless lawyer thinks the right move is to demand such things get taken down?
And, then of course, there's the inevitable backlash over this. Presidential campaigns trying to censor people -- or worse, a site like Wikipedia -- is always going to backfire. It makes the campaign look thin-skinned, foolish and short-sighted.
I'm guessing that if this makes enough news, the Sanders campaign will back down on this, and say it was an overzealous lawyer or some other such thing, but there's no reason such takedowns should ever be sent in the first place.
We see abuse in the way some companies and people use the DMCA takedown process all the time. Those stories typically range from anywhere between mildly frustrating to truly infuriating. But to really abuse the DMCA process in the most heartless, idiotic, disingenuous and fan-hating manner, we of course must bow before the masters over at Disney.
All of this started not that long ago, in a Walmart not particularly far away, when someone with a Facebook Star Wars fan group walked into a store and legally purchased a Star Wars figurine and then uploaded a photo of it to the Facebook group. Turns out the figurine contains a sort of spoiler within it or something. As such, plenty of other websites, such as Star Wars Unity, linked to it, embedded the photo of the figure, and discussed its implications. You know, like Star Wars fans do on all kinds of sites all the time. Well, that's when the DMCA notices began rolling in and the images started coming down.
This morning I woke up to numerous DMCA takedown notices on the @starwarsunity Twitter account, the Facebook account, the Google+ Page, and my personal Twitter for posting the image of an action figure that was legally purchased at Walmart. My webhost also received a takedown email from them with a threat of a lawsuit of the image wasn’t removed. I of course removed the image because I can’t afford to be sued by a toy company who likes to bully Star Wars fans.
The exact wording of the “infringement” is:
“Description of infringement: A screen shot of an unreleased figurine for Star Wars: Force Awakens”
Except, of course, the figurine wasn't "unreleased," it was very much released at a Walmart where it was legally purchased. If the Walmart made a mistake in putting it out on the shelves too early, that doesn't suddenly make it copyright infringement for someone who bought it in good faith to take a picture of it. And, taking a step back, even if the figurine had not been released by the Walmart, how is taking a picture of it copyright infringement? It isn't, by any sane reading of copyright law. Because it was a picture of a Star Wars toy made by Hasbro, most people logically assumed the takedowns were coming from the toy company.
This wasn’t a figure that was stolen off the back of a truck or stolen out from behind closed doors at Hasbro. It was legally purchased in a store by a fan and they posted a picture of their purchase on the internet. But because Hasbro is terrified of pissing off Disney and losing the Star Wars license early, they’re threatening and bullying fans online with legal action for sharing pictures of their purchases. Due to this I urge all Star Wars fans to avoid Hasbro product and not purchase any of their Star Wars releases. Until Hasbro grows a brain and stops bullying fans online, they do not deserve any of our money.
Except it doesn't appear that this was Hasbro at all. Turns out the DMCA notices are coming from Irdeto, an anti-piracy outfit we've discussed before, and are being sent on behalf of Lucasfilm, which is, of course, Disney. And those DMCA notices are going out not only to the original uploader of the picture, but even to those using the picture in a discussion or news capacity, and even those retweeting the picture.
So, let's recap. Hasbro made a toy that was released by a Walmart and bought legally by a fan, who uploaded a photo of the toy. Disney/Lucasfilm, which does not have a copyright on that photo, is having a third party, Irdeto, send out DMCA notices for the uploading of a picture, or a retweeting/reposting of the picture, which is not copyright infringement. And this gross abuse of the DMCA process is being done simply to stifle the speech of Star Wars fans and save them from a spoiler that apparently is coming from the depiction of this toy.
If that isn't the kind of DMCA abuse that results in some kind of punishment, nothing is.
As you may have heard, yesterday there was another mass shooting in the US. I know the topic of mass shootings and gun control and all that raise all sorts of emotions and opinions on all sides of the issue, but this is not the place to discuss them. I'm posting this for a reason that actually does fit into Techdirt's discussion area, and I hope that the conversation stays more closely aligned to the topic of copyright. What's copyright got to do with all of this? Well, after reading some of the news about what happened, I went in search of comedian Jim Jeffries' routine about guns. I'm a big fan of Jeffries, who is damn funny, and I recalled seeing that he did a great routine about guns and gun control in the past. And it seemed timely. So I did a search... and discovered that the video had been taken down. At first, I figured that it must be because someone ripped it and therefore, okay, I can understand it being taken down. But, no, this is the "official" clip uploaded by Jeffries himself. And apparently Netflix did the takedown (probably via ContentID, rather than a DMCA notice):
Yes. It is entirely possible, perhaps even likely, that Jeffries has a deal with Netflix that grants Netflix the exclusive rights to this clip. And I'm sure that some of you feel that this is perfectly reasonable, because Jeffries entered into an agreement with Netflix and this is the tradeoff. But something feels wrong about an artist having his own work being taken off his own YouTube account -- never mind the fact that the content might be relevant and timely right now. And it's not like seeing one relatively short clip of a much longer performance somehow hurt Netflix in anyway. If anything, it would seem to encourage people to go to Netflix to watch the whole thing. So here's a chance for Netflix to get some possibly-viral attention, and yet, it's not happening, because copyright law.
Earlier today Techdirt writer Tim Geigner pointed me to a YouTube video that used Twitter user names to create a punnish version of the 80s hit "Tainted Love" retitled Tweeted Love. It's pretty amusing:
In checking out the YouTube account of the guy who created it, Jim Mortleman, a more recent video posted just a few days ago popped up, entitled Nerdpunna - Smells Like Tweet Spirit. This was the same style video, using Twitter usernames to create an absolutely hilarious version of the famous Nirvana song. It was so well done (perhaps because Kurt Cobain's lyrics are so unintelligible) that I couldn't believe it had only around 2,000 views. So I tweeted it, joking that people should check it out before it got taken down.
A bunch of people started retweeting and linking to it, with many of them commenting on how great the video was or how funny it was. Even people who aren't Nirvana fans were talking about it. A few examples:
And there were many more like that. In short: the damn thing is really funny and super well done. After realizing that his video was suddenly getting an influx of traffic, the creator of it, Jim Mortleman (who says that the videos are actually a group project in finding the profiles, which he then puts together in the video) tweeted me that he was pretty sure he was safe because he'd been alerted that UMG was "monetizing" his video -- which is one of the options in YouTube for copyright holders if they want to make money on someone using their work, rather than taking it down.
From his YouTube screen, it actually showed that Universal Music had blocked the video in one country while monetizing it elsewhere:
However, just a few hours later, as the video started getting more and more attention, views and tweets... apparently Universal changed its mind -- and if you now visit the page, this is what you see:
Mortleman says that within YouTube it's now officially blocked in all countries. This is a ContentID match, rather than a direct takedown, though the company clearly made the decision to switch it from monetizing it to taking it down -- so someone made a decision.
And it's a hellishly stupid decision. The video was fantastic and didn't take anything away from the song. It certainly wasn't a replacement for the song and, if anything, was likely to draw a lot more interest to the song and remind people of its existence. I'm not a huge fan of the song, but have been humming it to myself all afternoon because of that video (which I ended up watching a few times).
Also, this seems like a pretty clear case of fair use -- though I imagine some will disagree. The hilarious use of twitter user names to create alternative lyrics to the song is quite transformative. No one was watching this video as a replacement for the original song, but because the video itself sort of celebrated the song with alternative lyrics made up entirely of Twitter profile names where "Here we are now, entertain us" because "Huey Long Gnarl Emma Talus" (if you haven't seen the actual video... it's much funnier in the way it was presented). And now it's all gone and you can't see it.
All because of copyright law and UMG's total lack of a sense of humor.
Even if you think the fair use case is bunk and that the video is infringing and UMG is totally, 100% in the right to do what it did, I'm curious how this helps UMG in any way, shape or form. It doesn't help them get any more money, and it just makes people pissed off. How is that a smart business decision?
Update: Jim has now posted a silent version of the video so you can see what it looks like, though it's really not the same effect (though you can try to line up the audio with it to try to replicate the effect):
On July 31st, Techdirt published a list of abusive/ignorant DMCA requests. Included was one from Sean Gjerde, who is apparently acting as his own reputation management firm. His attempts to rid the internet of mentions of his fraud conviction involve him cutting-and-pasting articles about it (including an FBI press release) into a "novel" he's "writing" about the the incident, and then claiming the articles he copied/pasted are part of his "original" work -- somehow retroactively making all of these pre-existing articles now infringing.
DESCRIPTION: Excerpt from my book Grace Under Pressure which I have already paid to register with the Trademark Office 1-2601933851. I put it up on my website, with the notice clear it is copyrighted and is a work of fiction for a book I plan on releasing.
The registration number is bogus. Copyright registration numbers look like this: SRu001135625
Gjerde has nothing registered (or pending registration) at the US Copyright Office, either under his name or "Grace Under Pressure."
Perhaps this is because Gjerde insisted on registering his copyright with the US Patent & Trademark Office.
The US Patent & Trademark Office has nothing for Sean Gjerde or "Grace Under Pressure."
It appears Gjerde was moved to write a small post at a site linked to his business venture, Federal Assurance Services, warning probably no one at all that people like me (well, exactly me) are infringing on his nonexistent rights.
I recently was the victim of a copyright infringer. As many of you already know I am currently writing a book entitled Grace Under Pressure. In my book in which excerpts have been copyrighted (1-2601933851) I was actually copied by a malcontent who proceeded to post my book and its excerpts on his blog and went on a big rant against me. This malcontent who I do not know nor care to know violated my copyright. Luckily for me I know my rights and do intend to enforce them. But I hope everyone who reads my blog understands the danger out there on the web and protects themselves accordingly.
This quote will be added to my bio.
TIM CUSHING Techdirt contributor 2010-present
Here's what other writers are saying about Tim Cushing!
Now, the link to Gjerde's business site throws up warnings about security certificates, so proceed at your own risk.
If this were Gjerde's personal blog, it would be a problem but not a dealbreaker. But considering it ostensibly leads to his business website, it's a big issue. Especially when his business claims to do all of this:
With over 15 years of real-life experience and over 1,000 clients, we are a leading and respected service company. We are the fiercest advocates for our clients. We can protect your hard-earned assets better than anyone else. Every year we set up hundreds of structures to protect residences, rental real estate, investments and retirement plans. Our clients include officers and directors of Fortune 500 companies; celebrities; Internet entrepreneurs; high-profile real estate developers, builders and investors; physicians; wealthy foreigners; small business owners; attorneys, accountants and financial advisors; and many other individuals facing financial adversity or seeking privacy for their holdings. You will find us to be not only knowledgeable and confident, but also friendly and personable. We take a no-nonsense approach to our work. With our guidance you will find this subject easy to understand and implement. We are not a law firm, but we are experts with degrees in taxation, international business planning and law.
So, the company claims to value security and privacy and yet runs an unsecured site that claims to be secured.
The business has basically no web presence beyond its own site, which is strange for an entity claiming "15 years of real-life experience." The company's website and Facebook page will show up first in search results, but there's nothing else out there that gives its existence any weight, like business registration records, articles/press releases about the company or anything else that might indicate human beings outside of its confines have ever heard of it. Its "office" is apparently a "Mail & More" in an Elk Grove, CA strip mall.
The domain was registered in April… of this year, which doesn't really shore up the longevity claims. Even if the "15 years" is the combined experience of Gjerde's partners, you'd think a "leading and respected" company with a finger on several privacy/security issues would raise a bit more than the company's own website in search results.
Gjerde's "reputation repair" master plan that isn't worthy of either half of that portmanteau. Why deal with the repercussions of your actions when you can simply paste news stories and press releases about your conviction into a mess of words on your personal website and then claim to "own" them by virtue of their inclusion into a novel that's likely to never be published?
To Sean Gjerde, this plan of action makes sense. To the rest of us, it looks like the desperate flailings of someone who doesn't understand the internet or any of the intellectual property he insists on invoking and discussing.
If the pattern holds, another bogus DMCA takedown request will be forthcoming.
As you may have heard, there was a Republican Presidential debate last night -- and it was so much fun they actually did two of them. I happen to be in a hotel which had Fox News on the TV (at home I haven't had any TV service for many years), so I was watching some of it, just for the fun of it. A few people also pointed out that you could watch the stream live via Sky News' YouTube livestream. The debate was officially the "Facebook/Fox News" debate, so it seems odd enough that it wasn't streaming anywhere on Facebook, but we'll leave that aside for now. Yet, with about 15 minutes left in the debate, the livestream on YouTube suddenly disappeared and you got this:
In short, Fox News issued a copyright takedown to YouTube over Sky News' streaming the debate. While that might sound perfectly reasonable, it seems worth pointing out that both Fox News and Sky News are owned by the same company: News Corp.. Yes, News Corp. effectively DMCA'd itself. Because that's how copyright works.
We recently wrote about a German film distributor that went on a DMCA takedown blitz and managed to send notices for sites that had nothing to do with infringing files (such as IMDB and, er, Techdirt). In a somewhat related story, we learn that representatives of Universal Pictures have likewise gone DMCA happy over infringing versions of movies like Furious 7 and Jurassic World -- even to the point of issuing takedowns not only for the film's IMDB page (for Furious 7), but for "127.0.0.1" for Jurassic World.
And while we’re on the topic of self censorship, it’s worth noting that Universal Pictures also asked Google, in a separate notice, to remove http://127.0.0.1 from the search results. The mistakes were made by the French branch of the movie studio, which only recently began sending takedown notices to Google. The company has reported less than 200 URLs thus far including the mistakes above.
127.0.0.1 is, of course, the IP address a machine uses to refer to itself. It's also known as "localhost." In other words, it basically means "home."
...Should we delist this house from the address books?
This is obviously a case of these companies setting up some kind of automated system, working off of an obviously flawed algorithm, that is causing these errors, rather than having real people going through to see if the targets for these takedown notices are actually infringing. Why do we allow this kind of collateral damage in the DMCA system?
Even more ridiculous? The organization representing Universal who sent this notice is TMG, or Trident Media Guard, which is the company that is officially working with the French government on its Hadopi copyright enforcement program. You'd think that a company so closely involved in such issues, working with a major movie studio, might try to be a little more careful about these things. But, of course, when have copyright defenders ever cared about collateral damage like this?
And here's the really crazy part: it's not like this is even particularly rare. Chilling Effects has long lists of DMCA complaints that point to 127.0.0.1. We're talking about a whole lot of armed militias running around utilizing a targeting system that wouldn't be trusted in a snowball fight, never mind in the realm of something as important as speech and communication via the internet. Here are just some of the most recent (many filed by NBC Universal):
If we have to live with the DMCA, filers ought at least be forced to take responsibility for their own notices. Pointing back to their own flawed algorithms shouldn't be an excuse -- especially when the requests are so obviously wrong.
To start with, it listed our article on the Hacking Team hack under its list of supposedly infringing URLs for the movie "Hacker."
Now, Hacking Team itself announced shortly after the data dump that "law enforcement was involved" and that orders were being sent out to have their leaked documents and emails removed from the web. Without a doubt, Hacking Team does have law enforcement involved somewhere, but takedown notices from the company itself have yet to arrive. (Third parties seem to be a bit more active on that front.) And with the documents stashed multiple places around the web, any takedown requests will be little more than symbolic.
I doubt it's using distant third parties to achieve its takedown goals, but clumsy, automated, Googling, "content protection" companies and rights holders are perfectly capable of inadvertently achieving the same aim.
It appears TMG's search for infringing URLs includes little more than the title, as this same request also targets a Reddit post that has nothing to do with its "Hacker" movie.
Instead, this links to a twitch.tv account of a gamer allegedly using hacks to get an edge in DotA 2 (Defense of the Ancients 2). Obviously, this has nothing to do with copyright infringement.
And, for good measure, TMG's efforts on behalf of Furious 7 in the same takedown request targets the movie's IMDb page. Because why not take down a wholly legitimate page on a wholly legitimate site that not only offers a wealth of information on the movie itself, but also acts as an unpaid promotional platform, what with its ample supply of trailers and links to retailers.
And, yes, some people will point out that most of what is targeted appears to be infringing content (or links to it). But here's the thing. It doesn't take long to vet small requests like these for false positives. At the very least, TMG owes it to the rights holders that pay for these services to issue legitimate takedown requests. Something like this making its way to Google makes TMG look, at best, clumsy, and at worst, incompetent and censorious. And while it's rarely a concern for rights holders and content protection companies, they also owe it to the rest of the internet to do their best to avoid targeting legitimate URLs -- especially those that have absolutely nothing to do with the content being "protected" and are, as in the case of IMDb, sites that can actually increase sales.
As you my have heard by now, on Sunday, online security super reporter Brian Krebs revealed that the infamous "dating site for married people who want to cheat on their spouse," AshleyMadison had its systems hacked, with whoever is responsible claiming to have basically everything. Apparently the site (and a few other similar sites run by the company) had 37 million registered users, many of which are probably a bit more worried about their information leaking publicly than they were a couple days ago.
But, no worry, claims the company to a reporter at Wired: it's issued takedowns to everyone who posted the info, so problem solved:
In a followup statement to WIRED from Avid Life Media Monday morning, the company writes that it has used copyright infringement takedown requests to have “all personally identifiable information about our users” deleted from the unnamed websites where it was published.
First off, what? Anyone who actually believes that DMCA takedown notices actually stopped this information from being available is probably also busy shipping the contents of his or her bank accounts to friendly princes-in-need across the Atlantic. Second, what? The company has no "copyright" claim in the information in question in the first place, and issuing a copyright/DMCA takedown doesn't make any sense at all, other than in a sort of desperate "please save us!" attempt to not have the company be completely destroyed by this incredible data breach. While perhaps some sites actually took the information down, there is simply no legitimate reason to use a copyright takedown claim to do so.
Meanwhile, others are pointing out that the site already leaked information about who had accounts if you knew what to look for -- and, somewhat ridiculously had bragged about its security in the past. Back in November of last year, after a bunch of celebrity nude photos leaked on the internet, AshleyMadison had a PR person reach out to me (and others) talking up AshleyMadison's privacy and security features:
Note: "the company takes every measure possible to ensure the safety of their members' information...." Or, maybe not. It also seems worth noting that the hackers are claiming to release this information because the company charged an extra fee to supposedly delete all of your info from its servers... but, according to the hacker, did not do so. And, of course, that might mean that the company is facing fraud charges beyond just having its basic business destroyed. But, no worries, I'm sure the company will look to use copyright law to fix that too...