More Evidence That Tons Of DMCA Takedowns Are Bad News… And That People Are Afraid To Counternotice
from the it's-a-real-problem dept
Earlier this week, we wrote about a major new study that revealed that a ton of DMCA takedown notices are clearly faulty, and how that shows just how messed up the DMCA’s notice-and-takedown provisions are in giving tremendous incentives to send notices with absolutely no punishment for filing bogus takedowns. The legacy music industry and its supporters keep claiming that the fact that there are so few counternotices is evidence that there’s almost no abuse. In fact, in the legacy music industry filing we wrote about earlier today, they even had the gall to claim that the real abuse is in the counternotices themselves.
As more and more comment filings to the Copyright Office about the DMCA process are being released, there’s increasing evidence that the legacy entertainment industry’s claims are, simply, full of shit. The latest is the excellent comment filed by Automattic (the folks who make WordPress), whose WordPress.com offering hosts over 80 million websites. The company notes that even while hosting so much content, the majority of the time the company spends dealing with DMCA notices is… dealing with the bogus ones:
We put a great deal of resources toward processing takedown notices because we take our responsibilities under the DMCA seriously. We aim to respond to all inbound takedown notices within 48 hours, exceeding the law?s requirements. But a significant portion of the resources we put towards our DMCA program are aimed at combating the shortcomings of the notice and takedown system. For example, we spend significant effort reviewing and trying to weed out overbroad and abusive DMCA takedown notices, so that our users? speech isn?t needlessly censored. This is a real cost to us, and diverts resources from more productive uses, like improving the products and services we offer our customers.
As with the study we highlighted earlier this week, Automattic notes that a huge number of notices it receives are invalid. First, it notes that approximately 29% of notices simply aren’t valid notices in that they fail to meet the criteria laid out by the DMCA for what constitutes a valid notice. Then, another 10% of notices do meet the criteria to be an official notice, but are “clearly false or mistaken.” And that’s based on their own review of the notices. So, approximately 40% of all DMCA takedown notices the company receives are bogus. But, contrary to what the legacy industry folks and their shills are saying, Automattic notes that very few people file counternotices, out of a fear of being sued, and they’re concerned about how this leads to censorship of perfectly legal speech.
Our statistics bear this out. As discussed below with respect to Subject No. 30, our statistics show that about 10% of the notices of claimed infringement we receive are otherwise valid but are clearly false or mistaken. But we receive many fewer counter notifications than that?only about one-half of one percent of the total number of notices we receive. We think this ratio shows that the low number of counter notifications is not the result of a correspondingly low number of false and mistaken assertions of infringement, but instead results from the concern that sending a counter notification is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred. The company notes that out of a batch of approximately 1,700 “valid” but bogus notices, only 113 counter notices were sent. Most people just don’t bother out of fear of getting sued.
The company also highlights just how broken Section 512(f) is — which is the section that is supposed to be used against bogus takedowns. But as we’ve written about in the past, it’s basically a dead letter. There are almost no examples of 512(f) being used successfully against someone for sending a takedown… with the one exception being Automattic! As we wrote about, a few years ago, Automattic actually sued over egregiously bad DMCA notices and even won a case, but… it was by default, because the notice sender just ignored the lawsuit. In the other lawsuit, it could never actually find the plaintiff who sent the bogus censorious takedowns.
The company also provides a number of actual examples of bogus DMCA takedown notices to get beyond just the statistical aspect and to prove the problem is real:
- A medical transcription training service that used forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
- A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
- A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
- An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
- A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.
As the company notes, each of these were clearly bogus, but since 512(f) is basically useless, it would be a complete waste of time to sue over them.
It’s good to see companies sharing this kind of information, and it tracks closely with what the study from earlier this week said, which was based on a different corpus of data. So, yeah, when the legacy guys claim there’s no abuse, they’re simply full of shit.
Filed Under: abuse, censorship, copyright, counternotices, dmca, dmca 512, notice and takedown, safe harbors, wordpress
Companies: automattic
Comments on “More Evidence That Tons Of DMCA Takedowns Are Bad News… And That People Are Afraid To Counternotice”
The following are some of the problems with the system. Reposting here from somewhere else I posted it.
“This may result from the inherent imbalance in prerequisites for the original complaint and the counter-notice. To get content removed, copyright holder Bob need only claim a good-faith belief that neither he nor the law has authorized the use. Bob is not subject to penalties for perjury. In contrast, to get access to content re-enabled, Alice must claim a good faith belief under penalty of perjury that the material was mistakenly taken down.”
https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act [wikipedia.org]
https://www.techdirt.com/articles/20151231/16544133215/us-copyright-office-asks-public-comments-dmcas-notice-takedown.shtml#c858 [techdirt.com]
“As we’ve noted many times in the past, there is almost no real punishment for filing false takedowns. The “penalty of perjury” language appears to only apply to the question of whether or not the person filing the takedown actually represents the party they claim to represent — and not whether the file is infringing at all, or even whether or not the file’s copyright is held by the party being represented. “
https://www.techdirt.com/articles/20131118/02152325272/warner-bros-admits-to-issuing-bogus-takedowns-gloats-to-court-how-theres-nothing-anyone-can-do-about-that.shtml [techdirt.com]
The penalty of perjury only applies either if you claim to be someone you aren’t (not if you claim to own content you don’t own). For example if I pretend to be Disney and I’m not. Or if I get content falsely taken down by someone that’s not the copy protection holder and I claim to own the content in my attempts to restore it. Then I will be under penalty of perjury but the person filing the bogus takedown isn’t as long as he doesn’t pretend to be someone he isn’t. He can pretend to own a work that Disney owns and not be under penalty of perjury but he just can’t pretend to be Disney or else he will be under penalty of perjury.
and that’s one problem with copy protection laws. They’re one sided written by distributors to limit content distribution and place a burden on independents that wish to distribute their content through alternative means.
Thread 608
“Automattic notes that a huge number of notices it receives are invalid. First, it notes that approximately 29% of notices simply aren’t valid notices in that they fail to meet the criteria laid out by the DMCA for what constitutes a valid notice.”
If you want to apply the absolute letter of the law (without exception) then yes, many DMCA notices will fail for purely technical reasons. One only has to read the whole text to understand how arrogant nit picky lawyers could easily disqualify a third of all notices:
(3) Elements of notification. —
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.
(ii) In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
So as an example, if you fail to provide a clear “electronic signature”, they can say it’s not complete and toss it out. If you mention a URL with more than one image on it, and you do not specify which image, then they can toss it out (even if you provide a link to your original copyright image).
If you apply the rules to the nth degree (and Automattic apparently does) it’s very easy to find fault in almost every DMCA Notice in some form or another. Those made by individual rights holders who are not familiar with the exact wording required could fail every time.
“The company also provides a number of actual examples of bogus DMCA takedown notices to get beyond just the statistical aspect and to prove the problem is real:”
Actually, what they provide is a list of people who don’t understand copyright or it’s application. The model example is a perfect one, because Automattic cannot easily determine if the model is a rights holder, partial rights holder, or may in fact have a reversion clause in a modeling contract that reverts the rights back to the model. Declaring the DMCA notice invalid in a case like this is something only a brave lawyer would do – one with plenty of money to fall back on when they are wrong.
” So, approximately 40% of all DMCA takedown notices the company receives are bogus.”
A bad conclusion. A valid DMCA notice with a missing element isn’t “bogus”. The 29% relates mostly to notices that don’t follow a narrow legal format that some sites require, but is not clearly documented. While the law lists the requirements, some companies (such as Twitter, example) require very specific words and phrases to be used, but which may not have any actual requirement under the law. In some cases, Google’s counter notice system is similar, requiring certain boilerplate to be used which does not appear to be clearly the only way to file such a notice.
So drawing a 40% bogus rating is just not right. The number is likely much closer to the 10% figure that they talk about, and even then, that would appear to be as much about misunderstanding one’s legal rights, and not as much about a huge or intentional fraud.
Re: Thread 608
The problem here is that it would require a lawyer to challenge a takedown and win on any of these technicalities. Which brings up the issue that some folks cannot afford a lawyer to do this.
Re: Thread 608
You refrence boiler plate required by google and twitter, but I fail to see how that applies to the 40% of bogus claims reported by Attomatic. They claim that 29% don’t meet the requirements of the law, not that 29% dont meet the requirements of either the law or our own seperate requirements.
Re: Re: Thread 608
“I fail to see how that applies to the 40% of bogus claims reported by Attomatic.”
The failure to meet the requirements could be any minor issue related to ALL of that text. As an example, many businesses use mailing addresses or answering service phone numbers. These could be considered technically invalid for a DMCA claim. So anyone sending one to Automattic could have their DMCA notice dinged as “bogus” as a result. They aren’t bogus, rather that they have technical errors that could be corrected and resubmitted.
Boilerplate (which varies company to company) isn’t a requirement of the law. It’s often used to make the DMCA process more difficult by declining (marking as “bogus”) any notice that doesn’t have all of their required wording and information. It creates a situation where it’s easier for the company to decline a DMCA notice for purely technical reasons rather than judging the notice on it’s merit.
Re: Re: Re: Thread 608
urine idjit and abject authoritarian…
there is virtuallyNOTHING you will not apply your moronic brand of handwavium to in order to make your puppetmasters look marginally less evil…
you are not a seeker of truth, but a mouthpiece for status quo propaganda…
Re: Re: Re: Thread 608
So essentially, you think it’s too much to ask that rightsholders dot their i’s and cross their t’s when making use of a powerful legal censorship tool.
I wonder if you’d say the same thing about someone who didn’t quite properly file their mechanical royalty payments, or didn’t get the right type of performance license for their venue. Somehow I doubt it.
Re: Re: Re: Thread 608
Yep, exactly the same as when the government denies your application, either for exams or for whatever stuff, because you’re missing a document, you filled the form wrong or whatever other technical issues.
Go and dare to fill your taxes reports with a little mistake…
Fair is fair. If the government can do that to me, or a company (not the first time to get something dismissed because “wrong procedure”); I expect that it should happen to everyone.
Organizations set procedures for a lot of reasons, not just deterrence. At some point, you might be required to show that the papers are properly filled, that the documentation is properly written and that every step is properly taken.
Particularly when there might be legal issues claiming that you were too “trigger happy” accepting that notice that was filled wrong, that didn’t identify themselves properly or any other technical issues that might arise.
In the end, companies are covering their asses too in that. You wouldn’t want to get into a lawsuit because you accepted a notice that wasn’t properly filled.
And sometimes, forms have to have specific language and texts to make sure that the proper steps are being followed; proper laws are being taken into account and things are kept clean and tidy.
Complicated too much? Lawyers (in essence, that’s what the AA’s are) complaining when others come to them with legalese? Call it karma.
Or call a proper lawyer to fill your forms. The rest of us mortals have to do that when forms are too hard to fill by ourselves (even with basic stuff like taxes, sometimes).
What makes AA’s so special that they shouldn’t require to fill a form properly when everyone and their mother is forced to do so or their petitions get dismissed?
Re: Re: Re:2 Thread 608
“Fair is fair. If the government can do that to me, or a company (not the first time to get something dismissed because “wrong procedure”); I expect that it should happen to everyone.”
My point is only that the 29% are not bogus, any more than your taxes are bogus because you forgot to carry the 1 in a given column. Mike is trying to lump together technical errors (typos, incorrect URLs, failure to provide a specific fixed address rather than a PO box) as bogus or fraudulent claims. it would be on par with saying that 2-3% of all Techdirt posts are bogus because they have typos in them.
Not everyone is capable of filling out all the correct information on the first try. Go look for DMCA boilerplate examples, there are bunches of them and I am sure some of them are NOT up to the standard Automattic applies.
Re: Re: Re:3 Thread 608
And?
Not being able to fill out forms on the first try isn’t a excuse to do it wrong (the government will fine me for filling my taxes wrong, small fines for small failures, up to big ones or even jail, depending on where I screw up and how much). Hire a proper expert, same as with taxes.
The issue is, whether right or wrong, the OSP that got the notice had to act and to use their resources to process your notice.
A 29% failure rate means that the OSPs are spending roughly a 30% more resources than they should processing your mistakes; just because you’re unable to fill out the form properly.
In fact, I’d say it’s more, as rejecting a notice looks like it takes more job than accepting it. Accepting a bogus or mistaken claim has no consequences for an OSP (the DMCA takes the liability out of them for that), while rejecting one has the risk of making you liable for doing so; so you have to be extra sure that each notice you rejected was done on right grounds.
Re: Re: Re:4 Thread 608
I agree with you. My only point is that those DMCA notices are not “bogus”, they are just perhaps missing information, not complete, or perhaps don’t have the full URL (as an example). Lumping them together with the 10% that is perhaps false or misleading claims is a pretty big logical jump.
I just think that Mike is playing games with numbers to try to come up with outrage. He doesn’t need to do it, but it’s his way of trying to puff up results in his favor.
Re: Re: Re:5 Thread 608
Yeah, dude, we get it – you have an issue with a single word choice. Did that require the hundreds of words you’ve spent on it without ONCE addressing the actual issue that everyone else is talking about?
No, no it did not. But I suppose your flimsy trolling-based self-esteem did.
Re: Re: Re: Thread 608
So, ignorance of the law is only an acceptable excuse when it’s “in good faith”.
Tell that to Edward Snowden. Or Hillary Clinton. Or Ted Cruz. Or to the IRS.
Re: Thread 608
Whatever, who worships at the altar of the letter of copyright law, is now arguing that we should all chill out about the letter of the law when the shoe’s on the other foot. Fun!
Re: Re: Thread 608
Whatever, who worships at the altar of the letter of copyright law, is now arguing that we should all chill out about the letter of the law when the shoe’s on the other foot.
That is pretty rich. I really don’t know if he’s just so focused on defending copyright at all costs that it doesn’t even occur to him that his position is totally inconsistent with what he generally supports, or if he knows it full well and thinks nobody will notice.
Re: Re: Re: Thread 608
I believe it’s the third option:
While he has some genuine interest in this topic, deep down he’s actually a committed troll above all else, deeply mired in a decade-long obsessive crusade against Techdirt. He knows his positions are nonsense and self-contradictory, and knows people WILL notice it, and gets a cheap thrill out of the thought that it must infuriate some of them.
Re: Re: Re:2 Thread 608
(In other words, if Techdirt rebranded tomorrow as a blog about puppies, he’d be gone for at longest a day while he fine-tuned the fallacies in his anti-puppy rhetoric)
Re: Re: Re:3 Thread 608
It’s a shame Techdirt has yet to put out an article extolling the virtues of breathing.
Re: Thread 608
“The number is likely much closer to the 10% figure that they talk about, and even then, that would appear to be as much about misunderstanding one’s legal rights, and not as much about a huge or intentional fraud.”
Ignorance is no excuse to law. Not understanding the law would never be an excuse for those that infringe on copy protection laws neither would they be an excuse for anyone that breaks any other law. Those that want to exercise such a privilege should at least make some effort to understand the legal privileges granted to them before attempting to exercise them. Just like you would argue that anyone that submits or hosts content or even consumes content should make the required effort to avoid infringement and if they do infringe ignorance of the law would not protect them from being penalized.
If the percentage of unauthorized takedowns is so small then you should be in favor of providing those that receive bogus takedowns the same protections as those that get works infringed upon. They should be subject to similar possible penalties. If someone files a takedown over a work that they do not hold privileges on and they don’t legally represent those that do hold the privileges they should be under penalty of perjury and be subject to huge penalties relative to infringement penalties. It is not enough that they are merely under penalty of perjury if they misrepresent who they are, they should be under penalty of perjury that they actually have copy protections of the work they claim to want removed. Just like the person that wants a work restored is under penalty of perjury that the restoration request is legitimate.
You may argue that this may deter people from filing legitimate takedowns and that such penalties would be unreasonable. In which case the penalties for infringement are likewise unreasonable and may likewise deter service providers from hosting legitimate content and may deter people from submitting legitimate content. If you really care for the artists you should care to provide artists that have their works falsely taken down with the same protections that those that get works infringed upon receive. If unauthorized takedown requests really are the exception then you should not care if those that file them are penalized comparable to those that infringe.
Re: Re: Thread 608
“They should be subject to similar possible penalties.” refers to those that submit unauthorized takedown requests.
Re: Re: Re: Thread 608
Yup, and next time you visit a government office and forget to fill out one field on the form you should be denied all services for the rest of your life and fined $150,000 for being ignorant and clearly wasting the government’s time.
Re: Re: Re:2 Thread 608
Which is not what I said. Don’t take things out of context.
Re: Re: Re:2 Thread 608
Hark, there on the horizon! It’s a straw man standing on a slippery slope, singing “if I only had a brain!”
Re: Re: Thread 608
If you really care for the artists…
Yeah… he doesn’t.
Re: Thread 608
“The number is likely much closer to the 10% figure that they talk about, and even then, that would appear to be as much about misunderstanding one’s legal rights, and not as much about a huge or intentional fraud.”
So, either intentionally or by mistake, they screw up 10% of the times?
I’d like to see a job where you don’t get fired for screwing that much. Most of the jobs don’t let you do so, and some won’t even let you screw once without having harsh consequences.
That’s, of course, if you haven’t been sent to the jail because you just killed someone…
And yet, they are supposed to be let to screw 1 in 10 times for the sake of expediency?
Next time, we’ll let a restaurant to screw 10% of the orders they get. Or 1 in 10 products in a factory with defects. Even 1 in 100 would be unacceptable.
As I’ve said in other thread, you are allowed to do a lot of things right, but you don’t have the right to do things wrong. And if you do, you’re expected to pay, as everyone else.
And being fair here, if the burden for you is low to fill a notice, the burden to fill a counter-notice and get you facing the consequences (fines, and suspension or revocation to send notices depending on the case) should be the same for the other part.
Re: Thread 608
So “the law is the law is the law”… up until your copyright holders fuck up their standard procedures and you somehow think that merits closing one eye to let it pass.
Wasn’t it you who claimed that if you don’t like the law, change it or shut up?
Re: Thread 608
I guess you didn’t bother to read Automattic’s filing:
You also didn’t bother to actually read the DMCA:
So, no, you’re wrong. The 25% are bogus notices.
Re: Re: Thread 608
Oh, also, there’s this:
If you go to that page, everything is laid out in plain, non-lawyerly language.
So, another reason you’re wrong.
Re: Re: Thread 608
You get A+ for selective reading.
Notice Automattic says ” more than 25% of notices fail to meet those requirements” and then doesn’t use an actual number or percentage when it comes to ” in many cases people simply don’t have a colorable claim that infringement is taking place”. It’s a clear indication that this isn’t the case for all of the 25%, and not even a number big enough for them to specifically mention.
Moreover, you have to consider what Automattic considers a “colorable claim”. If they have chosen to be judge and jury on things like fair use, then their numbers may be higher than average. Notice again that they don’t seem to provide much detail as to why they don’t consider these claims valid.
They do specifically talk about 10% bogus claims – and that’s why the 25% doesn’t fall as bogus – just not valid for various reasons.
Re: Re: Re: Thread 608
Again, dude, we get it. You object to the word “bogus” being applied to the full 25% figure. You may even have something of a point.
Now, again, do you have any thoughts on the actual issue of DMCA abuse, which does exist and is widespread regardless of your quibbling over the numbers?
No, of course you don’t. Keep trollin’
Re: Re: Re:2 Thread 608
The truth is that Whatever doesn’t even have an argument whatsoever. He tries to compare IP laws to real property laws but ignores the fact that one of the ways to fix IP laws would be to in fact make them a lot more like real property laws. You can’t deny someone use of something by simply proclaiming it to be yours and then forcing them to prove it’s really theirs placing all of the burden on them. Real property laws do not have this ridiculous one sided penalty and burden structure based mostly on the hearsay of any random lunatic that may arbitrarily proclaim that something in your possession belongs to them. Only in IP la la land do these types of ‘property’ laws exist. IP laws are the ridiculous result you get when corporations and business interests undemocratically write laws and making them more like real property laws would in fact go a long ways towards fixing them.
Re: Re: Re: Thread 608
“Moreover, you have to consider what Automattic considers a “colorable claim”. If they have chosen to be judge and jury on things like fair use, then their numbers may be higher than average. Notice again that they don’t seem to provide much detail as to why they don’t consider these claims valid.”
Which, again, is one of the problems with copy protection laws. As you said
“The assumption is that the rights holder knows who has the rights to use their content and who does not.”
This is very different from real property laws. Why should the person submitting a takedown request get to be the judge and jury over what constitutes a valid claim before content is taken down only to require a lengthy process to restore the content if it’s later found to be not infringing. Like with real property laws due process should be applied before any content is removed. I can’t just arbitrarily claim that your refrigerator belongs to me and then make you prove it doesn’t. That’s not how property laws work at all.
Re: Re: Re: Thread 608
You get A+ for selective reading.
Oh. And you get what? SSS+ Super Mega Blaster Master Advanced phD?
Even if a good portion of the 40% fail on technicalities it’s just more evidence the process is broken. And yet the MAFIAA wants to put that burden they can’t bother to carry (and, you know, follow the law) on the intermediates or even on ordinary people who probably don’t even know about these fine, non intuitive details.
If they have chosen to be judge and jury on things like fair use, then their numbers may be higher than average.
That’s rich considering even the copyright morons from the MAFIAA seem unable to know what’s an infringement and what’s not. So it’s ok to go with the MAFIAA interpretation of what’s infringing even though it’s clear they don’t know what they are doing. Rich.
They do specifically talk about 10% bogus claims – and that’s why the 25% doesn’t fall as bogus – just not valid for various reasons.
Not valid is bogus. Simple as that. Besides, as much as you claim Automattic judgment is arbitrary so is yours. But as they said, the counter notice process is a mess otherwise a judge could be the arbeiter, which would make more sense. Even then the system is broken so if everybody took things to the courts they’d be overwhelmed. The whole system needs to change and more objectivity must be added. In the end, even your lousy attempt of defending the system only gives more evidence that it’s broken.
Re: Re: Re: Thread 608
You get A+ for selective reading.
I’ll take that over an F- for not reading anything, which is your grade at this point in the semester.
Notice Automattic says ” more than 25% of notices fail to meet those requirements” and then doesn’t use an actual number or percentage when it comes to ” in many cases people simply don’t have a colorable claim that infringement is taking place”. It’s a clear indication that this isn’t the case for all of the 25%, and not even a number big enough for them to specifically mention.
You are totally full of shit, and here’s why.
Obviously, Automattic can’t know who actually has “a colorable claim” to infringement, and neither can you or I. But “a colorable claim” is legal-speak for “not utterly full of shit,” so when Automattic says that these DMCA notices do not represent even “a colorable claim” to infringement, you can be reasonably certain that they’re utterly bogus.
Notice again that they don’t seem to provide much detail as to why they don’t consider these claims valid.
That’s detailed in the DMCA. Remember that service providers have to work with DMCA notice senders, by law, if:
ii. they provide “identification of the copyrighted work claimed to have been infringed;”
iii. they provide “identification of the material that is claimed to be infringing,” and “information reasonably sufficient to permit the service provider to locate the material;”
iv. they provide “information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.”
The “reasonably sufficient” language makes it clear that you don’t have to dot your i’s and cross your t’s; you just have to provide something sane and rational. It’s easier and more straightforward than signing up for Facebook, with even less sanity checks.
And 25% of DMCA notice senders couldn’t even do that. Despite the fact that Automattic provides a page where everything is laid out, in plain English, in addition to their DMCA contact email.
It is pretty much impossible to send an invalid DMCA notice in this case. Yet 25% of senders do it.
That’s because they’re bogus.
Reasons
I wonder how many of these are because people believe that DMCA notices are for getting things you don’t like taken down. Maybe they don’t even realize there’s supposed to be a copyright infringement aspect to it.
“So, either intentionally or by mistake, they screw up 10% of the times?”
Just like anything else, some people are going to claim things that are just not true, or is beyond the scope of copyright law. Automattic cited a few examples, mostly related to not understanding what is and what is not copyright material. Not everyone understands copyright appropriately.
Now, importantly under the law, before they can be liable for anything, the 10% would need to be shown to have operated in bad faith. Claiming copyright on something that cannot by copyright (such as data) is a good example of a bad claim, but not bad faith – just a bad understanding of copyright law. Automattic doesn’t break down the 10% to show how many would actually rise to the level of bad faith, I suspect in no small part because it’s very hard to judge bad faith.
“And yet, they are supposed to be let to screw 1 in 10 times for the sake of expediency?”
I don’t think they are screwing up for expediency. I think most of the 10% are not understanding copyright claims, and not speed. Remember, Automattic only dealt with 16,000 claims in 2 years, so automated takedowns are likely not their big issue.
Re: Re:
Then it’s straight and even worse: if they don’t or can’t understand copyright properly, they shouldn’t be filling notices to take down content and they should be punished for every failure.
And machines are worse than humans when dealing with law related issues…
Professionals are liable for their mistakes, whether they are in good or bad faith; and they are supposed to be that.
Someone messes their job, they get fired. They do it in bad faith, and they can even be sued or even criminal charges brought against them.
Good or bad faith doesn’t excuse you from liability. It just makes things worse if bad faith is proven.
And also, expediency or not, good faith or not, they ARE screwing up 1 in 10 times.
A 10% rate of failure in unacceptable in most jobs; even if reparations are done, either you fix that rate or you’re going to get fired, your license revoked, your shop closed or whatever other consequences you may face nowadays.
Imagine a restaurant where 1 in 10 customers get their orders wrong and nothing is done to fix it (and actually, it would more like the equivalent to “food poisoning”, nice Russian Roulette)? You don’t, do you? Then, this is the same. It’s a job and it has to be properly done.
And that should be the case here. Small failure rates are acceptable, if and only if, reparations are done in such cases. But this estimated rate, no. Sorry.
And btw, quality is always expensive. There are a lot of jobs where they are spending tons to make sure you get the proper quality, more than making the product itself.
So if doing things right is too expensive, then stop doing such activity; obviously.
That’s the answer any professional gets when they complain that something is too hard or too expensive: if you can’t do it, then go change your job.
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“Now, importantly under the law, before they can be liable for anything, the 10% would need to be shown to have operated in bad faith. Claiming copyright on something that cannot by copyright (such as data) is a good example of a bad claim, but not bad faith – just a bad understanding of copyright law. Automattic doesn’t break down the 10% to show how many would actually rise to the level of bad faith, I suspect in no small part because it’s very hard to judge bad faith.”
I think you miss the point.
A: Ignorance is no excuse to law. Apples to those that infringe, this should also apply those that make bad claims.
Some of the very problems with copy protection laws being discussed are exactly the points you make. Copy protection laws are very one sided. Those on the receiving end of potential infringement could be on the hook for damages even if they acted in good faith and especially if they acted in bad faith. DMCA requests require a prompt response and those on the receiving end are required to bear the burden under penalty of perjury with potentially huge penalties if they are wrong of ensuring that they can distribute the content if they want it restored but those on the sending end are not faced with the same burden of ensuring they may remove the content before having content removed. Not only that but, as you say, bad faith must be shown before any damages can be recovered against someone that sends a bogus takedown which, as you admit, is hard to judge or prove. And even in bad faith the penalties for a bogus takedown request, not even being under penalty of perjury, are still nowhere near the penalties for infringement.
Your post is a good summary of what’s wrong with the law and why it needs to be changed. Which is the point the article is making that you seem to miss. We don’t need you to summarize the law, we know what the law is, the point is that the law needs to be changed. The problem is that these bogus takedowns are hard to combat under the law, as you admit, which is why the law needs to be changed.
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“Now, importantly under the law, before they can be liable for anything, the 10% would need to be shown to have operated in bad faith.”
and you don’t see this as a problem? This is a problem and it’s a problem that needs to be addressed. That’s part of the point of the article. The law needs to place burden on those making requests to ensure that those requests are legitimate and to do that the law should not allow anyone to make a bogus request without facing penalties. Not all the burden should be placed on those receiving the requests, those sending them should bear equal burden to be fair to artists that distribute their content. If those sending bad takedown requests are allowed to get away without paying damages by simply claiming they acted on good faith when they made the request that’s a problem because, essentially, they can use such a claim to escape any burden whatsoever.
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Whatever doesn’t believe bad faith exists, because making sure you get the right infringer is haaaaaaaaard.
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He claims that bad DMCA requests are fine because the law generally doesn’t care while ignoring the fact that it is the law itself and its general apathy toward bad requests that’s being criticized here. Like I said, the part of his brain responsible for basic comprehension is missing.
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Now, importantly under the law, before they can be liable for anything, the 10% would need to be shown to have operated in bad faith.
“Importantly under the law” there are a bunch of boxes that need to be ticked for a DMCA notice to be valid — and you’ve spent this whole thread arguing that we should chill out about that, not be so worried about the law. You’ve even been complaining that the requirements of the law make it far too easy for infringers to keep infringing with no consequences.
Now that the law’s on your side again, making it incredibly easy for rightsholders to abuse the DMCA with no consequences, you’re back to noting how “important” that is and demanding we assent to it.
The fact that it’s virtually impossible to punish even the most egregious false DMCA takedowns because of the extremely difficult-to-prove requirement of “bad faith” is precisely one of the problems with the current notice-and-takedown system.
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DMCA isn’t anywhere near as simple as you paint it to be. Filing a valid claim is about has hard as making a valid counter claim.
The lack of consequences comes in no small part from a basic issue: Anonymous posters, and people unwilling to stand up for their rights. Automattic is a deep pocket defendant who could easily file a significant number of cases if their numbers are to be believed. Reality is that they don’t want to put themselves on the line for some anonymous blogger. They don’t want to lose.
It’s incredibly easy to prove bad faith, if you believe Automattic’s list of “fails”. You should ask Automattic why they don’t file more lawsuits…
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people unwilling to stand up for their rights
*people discouraged from standing up for their rights due to the completely imbalanced risk and expense.
FTFY.
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imbalanced, unlike the case with real property laws where the risks and expenses are more reasonably balanced.
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“DMCA isn’t anywhere near as simple as you paint it to be. Filing a valid claim is about has hard as making a valid counter claim. “
I read the requirements you posted and they don’t seem to be that unreasonable. They mostly require the party filing a claim to basically identify the allegedly infringing work, provide contact information, and if they are claiming to represent someone else to provide a signature of some sort that they are authorized to represent that someone else. If they can’t even get that right then really they shouldn’t even bother.
“The lack of consequences comes in no small part from a basic issue: Anonymous posters, and people unwilling to stand up for their rights.”
The one sided penalty structure doesn’t come from the fact that some posters are anonymous. That comes from the law itself. The law places huge burdens on the party receiving a takedown request while placing a relatively small burden on the party sending one. Very unlike real property laws.
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” If they can’t even get that right then really they shouldn’t even bother.”
A perfect example of misunderstanding that the claim may be made as a business owner, but that personal information must be provided (and not that of the company) such as address. That failure can render a notice invalid.
“The one sided penalty structure doesn’t come from the fact that some posters are anonymous. That comes from the law itself. The law places huge burdens on the party receiving a takedown request while placing a relatively small burden on the party sending one. Very unlike real property laws.”
I think you need to re-read the law. There are few burdens on those receiving notices beyond “take it down”. There are only penalties for false claims in the law, everything else mitigates or does not mitigate normal copyright law. If a site operator removes content as per DMCA complaints, they have no real burden, legal or otherwise.
The biggest burden is similar to other property rights, which is proving that you have rights to the property – either content is licensed or you are using it under fair use (no different from providing a lease to a rental property). It is very much like regular property laws, which tend to bias towards property owners.
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There are few burdens on those receiving notices beyond “take it down”.
The entire point of these discussions is that this is a massive burden, overstepping first amendment and restrictions on prior restraint. There can be no useful discussion with you until you’re willing to address the burden that DMCA takedowns results in for content creators – as opposed to copyright holders or (large) service providers, who I agree seem to have a generally cruisy time under the DMCA.
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and with ignorant statements like
“It is very much like regular property laws, which tend to bias towards property owners.”
Who can possibly take his stupid nonsense seriously? In the case of real property laws before any action can be taken against the property the person claiming to own said property must first prove they own it.
The only reason IP laws differ is because they were corporate written and IP laws are what you get when selfish sociopathic corporations undemocratically write laws.
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“A perfect example of misunderstanding that the claim may be made as a business owner, but that personal information must be provided (and not that of the company) such as address. That failure can render a notice invalid.”
Which is still not that complicated. Maybe to you but to any normal person here it’s not.
“There are few burdens on those receiving notices beyond “take it down”. “
Which is a burden. It’s a burden on artists that submit their own content and now must have it removed. Imagine if I burdened you with the burden of unplugging your own refrigerator until you first prove to everyone it belongs to you and there was a lengthy and expensive process to do all this. That’s not how real property law works. What if it’s your own content that you spent many hours making and, suddenly, some random person claims it’s their. Your content gets removed and it later turns out it’s not theirs but they made a ‘good faith’ belief claim that it was so no punishment to them. That’s not how real property laws work. You can’t deny someone use of their own property before due process.
“There are only penalties for false claims in the law, everything else mitigates or does not mitigate normal copyright law.”
Normal copy protection laws are also what are being criticized. They posses a one sided penalty structure as well.
“If a site operator removes content as per DMCA complaints, they have no real burden, legal or otherwise. “
You are obviously not following. The problem is that way way more burden is placed on the person on the receiving end of a claim than on the sending in, unlike real property laws.
“The biggest burden is similar to other property rights, which is proving that you have rights to the property – either content is licensed or you are using it under fair use (no different from providing a lease to a rental property).”
Or you own the property and the other party is trying to pretend that they own it when they don’t. In the case of registered property, like a house or car, the government will first check their records before denying you access to said property. In the case of unregistered property, like a refrigerator, the assumption would be that the person in possession of the property owns it and won’t be denied use of that property until proven otherwise by someone claiming to otherwise own the property. The penalty structure is not one sided against the person that actually owns the property having someone else arbitrarily claim they own it.
“It is very much like regular property laws, which tend to bias towards property owners.”
You obviously don’t understand real property laws and how they differ from IP laws and you can’t even be bothered to read anything past your own stubborn ignorance. Then you wonder why no one takes you seriously. You keep making the same repeated claims over and over even after you have been shown to be wrong. At this point you are just lying because you know better. Stop repeating the same lies, it doesn’t serve to prove your case and only shows how morally lacking you really are.
First of all real property laws are not one sided in terms of anyone just arbitrarily claiming to own property they don’t, unlike IP laws. Either the property is registered or the burden falls on the person making the claim to first prove they actually own the property before they can deny someone else the use of said property.
Secondly the penalty structure of real property laws are not anywhere near that of real property laws. In the case of IP laws the person claiming to own something they don’t is not under penalty of perjury. Under IP laws that would be equivalent to me claiming to own your refrigerator as my own and denying you use of your own refrigerator until you prove, under penalty of perjury, that it really belongs to you. and then I can claim I was simply mistaken. Real property laws don’t work like that.
Under real property laws even if I did intentionally vandalize or rob your house that’s likely not enough to “cripple them financially for the rest of their lives” which is very different from IP laws.
Please, go back and read past your comments because I already explained all this here
https://www.techdirt.com/articles/20160401/11332234082/our-comment-dmca-takedowns-lets-return-to-first-principles-first-amendment.shtml#c391
and so far you have addressed absolutely nothing.
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errr … the penalty structure or real property laws are not anywhere near that of IP laws *
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(and then I can claim I was simply mistaken with no punishment to me *)
In an effort to reduce the percentage of threads that are grandfathered by Whatever (and so get some real discussion going)…
Personally, I find that this situation provides an excellent example of why copyright should require mandatory registration (amongst the other reasons). If owning a copyright required registration, then I seriously doubt that the DMCA would ever be available in this kind of situation, and prosecution would (correctly) have to be pursued as a trade secrets violation.