Back in February I talked about how "On Press Inc." was indulging in bumptious legal threats and jibber-jabber against people who quoted the "epic" "poetry" of "poet" "Sean Shane," including his "greatest" "work" "Tongues of Glass," which goes something like this:
all of my
would slide down
and i could use windex
to get rid of the
of wax fruit
when i forget again
and try to eat it
because it's motherfucking deceptive
it looks like REAL fruit
if there is a "real"
there's a class action in that
is this thing on?
MOM DO WE HAVE MORE FANTA
Or something like that.
Tim Cushing at Techdirt also did great work reporting on the hilarious-to-the-point-of-a-little-sad flailing of whoever was controlling "On Press Inc." Then the whole matter faded into obscurity, drowned out by the hordes of other unstable censors that gibber and howl on the internet.
TorrentFreak reports today that "On Press Inc." sent Google a demand under the Digital Millennium Copyright Act (or a DMCA Notice, as it is commonly called) seeking to . . . well, it's not entirely clear. On Press Inc. sent Google a list of 147 web pages it claims infringed the copyright in "Tongues of Glass." That list included Popehat, Techdirt, BoingBoing, SF Weekly, and even Huffington Post, where a blogger at HuffPost Science had quoted the poem because doing so blocks vaccinations from giving your kids cancer. Though some of the pages on the list might have violated copyright by copying the poem without criticism or comment, the quotations by those blogs was clearly protected as fair use, as part of a comment on On Press Inc.'s disturbed behavior.
But wait, Google doesn't even host most of those pages. Was On Press Inc. demanding that we few, we happy few, be REMOVED FROM THE GOOGLE IMMEDIATELY? That's TorrentFreak's interpretation — that On Press means to make a delisting demand — but it's not clear. (Edit: Mike Masnick of Techdirt thinks it's clear they are asking for de-listing under DMCA; I'm not sure they grasp the DMCA that well.) Google, of course, refused to take action with respect to the pages constituting fair use, addressing only a few that apparently were simple copies.
Whoever sent the DMCA made certain oaths:
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
The information in this notification is accurate, and I swear, under penalty of perjury, that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
No minimally rational person could make those oaths honestly — even, I would argue, under the very narrow way that state has been interpreted.
It may be time to take action. The DMCA provides a cause of action against people who abuse it:
(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.
Application of this section is complex and beyond the scope of this post. However, if anyone targeted by On Press Inc.'s frivolous and bad-faith DMCAs believes they have been damaged, they could file suit against On Press Inc. That suit may provide a vehicle for discovery into the identity of the actual person or persons responsible for the censorious DMCAs. If anyone targeted by the DMCAs is interested, I am happy to help you look for an attorney who might be interested in taking the suit to vindicate the free speech and fair use issues presented. We shouldn't tolerate such abuse to the DMCA.
Moreover, as before, if On Press Inc. ever takes the next step and sues anyone, please contact me. We will light the Popehat Signal and find you counsel to cockroach-stomp them.
Edited to add: BoingBoing picks up the story.
Edited again: Tim Cushing does some strong investigative work. Who is "Mike Miche"?
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016