WordPress Goes On The Offensive Against DMCA-Abusers

As I mentioned in my post earlier today about the demon-haunted world of Gordon Klingenshmitt, people who want to write about controversial subjects online face a persistent problem: dishonest, thin-skinned, censorious people who are willing to abuse the Digital Millennium Copyright Act – or DMCA — to force hosts and writing platforms to take down content they don't like. We've seen it happen with a glassy-tongued poet and an over-sensitive lighting company that doesn't like negative reviews and even Ecuador, and we've even been the subject of a bogus DMCA demand ourselves filed by a wire-fraudster extortionist.

The DMCA does have a provision allowing a cause of action for bogus takedown demands, under Section 512(f):

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Unfortunately, courts have been interpreting Section 512(f) narrowly to apply only to false statements of ownership of the copyright, as opposed to false statements that the targeted material is infringing. In other words, courts have often refused to use this section to impose consequences on censorious liars or fools who claim copyright infringement when faced with parody, satire, criticism, and other stuff clearly protected by fair use and the First Amendment. The Ninth Circuit, for instance, requires plaintiff citing this section to show that the DMCA takedown was subjectively, knowingly false — even if the person sending the takedown was objectively unreasonable and even if they didn't conduct a reasonable investigation. The music and movie industries would like to go further — they want to argue that the only thing you need to be truthful about in a DMCA takedown demand is your ownership of the copyrighted work, not the infringing nature of the target. The music and movie industry like that rule because (1) they don't want to spend money to hire competent or honest people to write DMCA demands for them, and (2) they are perfectly happy to deter satire, criticism, parody, reviews, and discussions if it makes it easier for them to fight the Great War on Piracy. That's why when the MPAA or RIAA complains their industries are dying, I'm tempted to ask how soon I can piss on the grave.

But even under the entertainment-industry-castrated version of Section 512(f), there are still opportunities to stomp censors. Today WordPress announced that it has filed federal lawsuits against two abusers of the DMCA. One defendant is none other than Nick Steiner, the head twerp of StraightPride, which resorted to a bogus DMCA complaint to make a false claim of copyright as to an interview to which it consented. The other defendant filed false DMCA demands against our friends at Retraction Watch, which has been subjected to numerous threats before. The Retraction Watch DMCA abuse was on behalf of the fake-Rhodes-scholar Anil Potti, previous subject of Patrick's wrath.

These suits fit into even the narrowed interpretation of Section 512(f) because both involve not just false statements about whether the targeted items are infringing, but false statements about the existence or ownership of the copyright in the first instance.

These will be lawsuits to watch. Mike Masnick, who has done good work on 512(f) issues, is on the case and his coverage will be worth watching. The Technology & Marketing Law Blog is another great source for Section 512(f) analysis.

Last 5 posts by Ken White

Comments

  1. Dion starfire says

    Regulatory capture at it's finest. Got to love a court that can say "that law doesn't actually mean what it says".

    Oh yeah, and first.

  2. says

    Oh, please, oh, please. I should know better than to expect anything, but I really hope Automattic can do something to create a disincentive for bullshit DMCA takedowns.

    It's just so blatant now.

  3. MentalEngineer says

    "they are perfectly happy to deter satire, criticism, parody, reviews, and discussions if it makes it easier for them to fight the Great War on Piracy."

    More to the point, at least the first three of these uses, and often all five, are explicitly critical of the content industry's subpar products, attitudes, behavior, et cetera. Censorship doesn't deter piracy, but it can sure help your marketing if you can make it look like everyone loves the recycled pap you're peddling.

  4. says

    Help me out here. In the case of Nick Steiner, I don't understand how one can claim that he misrepresented his ownership of the copyright. Yes, he is a slimy person who espouses values that I despise. And yes, reporting on statements that have been made to a reporter must fall under SOME legal sense of fair use (although that part's not actually clear to me). But if I understood you correctly, you are stating that this involved false statements about the existence or ownership of the copyright. If Mr. Steiner or some member of his group created the press release then wasn't it immediately protected by copyright (even without the need to indicate that)? And wouldn't Mr. Steiner (or whoever wrote it) be the owner of the copyright?

  5. Matthew Cline says

    Unfortunately, courts have been interpreting Section 512(f) narrowly to apply only to false statements of ownership of the copyright, as opposed to false statements that the targeted material is infringing.

    How did judges come to that conclusion? Is there some non-intuitive pre-DMCA precedent that leads to that? The judges in question were friendly with the entertainment industry? Something else?

  6. Mike B says

    Help me out here. In the case of Nick Steiner, I don't understand how one can claim that he misrepresented his ownership of the copyright. Yes, he is a slimy person who espouses values that I despise. And yes, reporting on statements that have been made to a reporter must fall under SOME legal sense of fair use (although that part's not actually clear to me). But if I understood you correctly, you are stating that this involved false statements about the existence or ownership of the copyright. If Mr. Steiner or some member of his group created the press release then wasn't it immediately protected by copyright (even without the need to indicate that)? And wouldn't Mr. Steiner (or whoever wrote it) be the owner of the copyright?

    If I read it correctly isn't Mr Steiner's case over an interview he gave? I'm curious what the legal precedent on that is. I would hope and imagine (perhaps optimistically) that an interviewee does not own the copyright on an interview they gave. My layman's understanding has always been that if say, a newspaper interviews private citizen John Q Public, the copyright is not owned by Mr Public, but by the newspaper that conducted and published the interview.

    How did judges come to that conclusion? Is there some non-intuitive pre-DMCA precedent that leads to that? The judges in question were friendly with the entertainment industry? Something else?

    My not-a-lawyer, eternal cynic response would be that it's easier for them than doing their jobs correctly. I'd roll it into the same category as rubberstamping search warrants that in no way display adequate cause, or perhaps even worse, that this is simply the mindset of the judges being nominated because the politicians doing the nominating and confirming are being heavily lobbied into the MPAA and RIAA's collective pockets.

  7. Mike B says

    Censorship doesn't deter piracy, but it can sure help your marketing if you can make it look like everyone loves the recycled pap you're peddling.

    Honestly I don't think they're that smart. I think it's the same tactic most big industry copyright warmongers take. It's easier to mow down a whole village than presume innocence and risk missing your man.

    It's extremely common in the software industry, particularly in games but now in professional software as well. The companies dont want to spend time, money, or effort developing precise tools to combat piracy so they pretty much shoot into the crowd with hyper-restrictive rights management, treating all of their legitimate customers like thief int he hope of catching the one percent that are probably honestly the ones clever enough to get around it anyway. Hell, sony did the same thing with music 10 years ago, essentially installing malware on people's computers to 'prevent' piracy of their DVDs and Albums.

  8. Matthew Cline says

    Hell, sony did the same thing with music 10 years ago, essentially installing malware on people's computers to 'prevent' piracy of their DVDs and Albums.

    Ah, yes, the infamous Sony rootkit fiasco, where in an effort to prevent copyright infringement, Sony itself infringed on the copyright of some GPL'd software. Good times.

    EDIT: Technically, Sony bought the rootkit from the folks who infringed the GPL'd software.

  9. says

    There was also the part where Sony would install a device driver even after the user selected "I Do Not Agree" when the license agreement was presented.

    Whoops. CFAA much?

  10. says

    Is it really plausible that we'll see Narendra Chatwal of Uttar Pradesh (the plaintiff in the Retraction Watch suit) in a US court?

  11. I was Anonymous says

    Doesn't matter. Sony *DISTRIBUTED* binaries of GPL'ed software, without an offer to provide source. And, I'm assuming, refusing to honor any requests for said source. Thereby putting them in violation of the GPL.

  12. I was Anonymous says

    That last was for @Matthew.

    This one is for @Michael.

    CFAA? Don't you know that's only to be used against the Little People(tm)?

  13. Nat Gertler says

    Folks who have not checked out the details of the Potti-related suit should. The actions it alleges would seem to cover not just DMCA infringment, but also copyright infringment and trademark violation… Although some of this would be under India law, about which I know even leds than my not-a-lawyer self knows about US law. It paints a picture of rather aggressive tactics.

    (As an editor of the Anil Potti Wikipedia page, I can tell you that it has been subject repeatedly to whitewashing attempts.)

  14. says

    Being the little people sucks.

    As a slight aside to that, there is a kind of funny symmetry between that rootkit and the guy getting raped by the police in Denning, NM. In both cases, the victims very clearly indicated that they did not consent. In both cases, they got something extremely unpleasant shoved into them (or their PC's). And, in both cases, there will not be a whole lot of consequences for the makers of those bad decisions.

  15. Vex says

    So, got a question.

    If they win the lawsuits what happens? I've heard they can't really collect damages because the two offenders are in a different country and have also heard this won't impact law much.

    So, what will a win do here?

  16. Xoshe says

    Unfortunately, courts have been interpreting Section 512(f) narrowly to apply only to false statements of ownership of the copyright, as opposed to false statements that the targeted material is infringing.

    The worst part is that they don't even do that consistently. I've seen articles about notices that come from companies claiming copyright over someone else's material entirely, with clearly no way to try and weasel out by saying they were acting on behalf of.

    At least one of the cases that Automattic is suing on behalf of here is an example of that. But the whole counter-notice system needs real teeth.

  17. says

    My layman's understanding has always been that if say, a newspaper interviews private citizen John Q Public, the copyright is not owned by Mr Public, but by the newspaper that conducted and published the interview.

    It's a bit complicated, and involves the provision that nothing can be copyrighted until it is placed in a fixed form. Here is a rough analogy.

    Say a lion shows up walking down the street in New York, and a bunch of people take videos of it on their phones. Every one of those people owns the copyright to the individual video they took; none of them own the copyright to the lion itself, or any awesome lion sounds that it makes. If it turns out the lion was part of a movie shoot, the movie producers of course hold the copyright to their filming, but they still cannot claim rights over the videos of the lion taken by other people.

    On the other hand, if you record a band performing at a concert, and put it on YouTube, the band can legally have it removed; the reason is that, long before they performed the song at the concert, they wrote down the music and lyrics to the song somewhere. The performance itself is a derivative work of those copyrighted documents, and (indirectly) so is your video. For the same reason, if you publish a video of a CEO giving a speech that they wrote beforehand, they can ask to have it removed.

    So whether an interviewee holds rights to any part of the interview really depends on how much of what they said they planned out beforehand and wrote down before the interview began. Some people go in with no material prepared, while others prepare for every question they can think of. In an infringement lawsuit, they would need to prove they really wrote it down or recorded it beforehand, ideally with a copyright registration or a notarized timestamped document.

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