Abuse of the American online copyright takedown system (DMCA) is rife. People frequently submit fraudulent notifications to online service providers in order to censor views that they disagree with, curbing legitimate freedom of expression. Examples include those trying to stifle negative reviews about their businesses or products, preventing political satire, and even inappropriately targetting the normative use of a trademark.
All too often, OSPs simply shrug their shoulders when confronted with these scenarios, and process the notices anyway in order to avoid losing their safe harbor protections. Even when alerted to what’s going on in specific circumstances, many choose a policy of non-intervention, rather than to defend their users.
The result of one of two cases which were filed by Automattic in response to fraudulent takedown notifications submitted concerning material posted by WordPress.com was released a few days ago, Westlaw citation: 2014 WL 7894441. The judgement concerned a notice sent by a group called ‘Straight Pride UK’, who objected to the publication of an e-mail interview which a journalist Oliver Hotham had conducted. Under §512(f) of the DMCA, Automattic were awarded a total of just over $25,000 in damages – $960 of which was for Hotham’s time.
The outcome was a ‘default judgement’, as the defendant’s (unsurprisingly) didn’t turn up to the hearing, despite being served properly through the standard international processes. It’s unlikely that either Automattic or Hotham will ever see any of the money, so it is largely a symbolic victory. However, it should not be dismissed too quickly, as the case highlights a number of important issues:
The DMCA is frequently abused, with few consequences for those who misrepresent their copyrights
Taking action against this abuse is expensive, and happens extremely infrequently
Enforcing damages against those from outside the US is difficult, and so there is a hole in the remedies available where those who abuse the system fall into this category
Even where organisations or individuals are resident in the US, major online service providers do nothing about the fraudulent notices they receive that could be actionable
In order for damages to be awarded, material must be removed as the result of a misrepresentation. There are no consequences for fraudulent notifications that are caught by diligent service providers first – at their own risk
The DMCA is a blunt tool that has an incredible power to silence dissenting voices without recourse. The only way in which this is going to change is if service providers begin to stand up against the abuses, using the considerable resources as their disposal – both to further the conversations in this area, and also to take legal action where possible.
Transparency: I am a Community Guardian for WordPress.com.
Every day WordPress.com receive a sizeable number of DMCA takedown notifications, and every day I personally reject a fair number of them for being incomplete, invalid, or fraudulent.
Many of those who find their takedown notifications being rejected are displeased with the decision, used to service providers choosing to automatically process them, shifting the burden of proof onto the user, rather than take on the risk of liability for themselves. Unsurprisingly, this displeasure is often most aggressively expressed by dedicated third party agents whose sole business model is based on scouring the web for potentially infringing acts, and who get paid per removal. Some people may say that with a results-driven financial incentive to have material taken offline, that there is more of a chance for the DMCA process to be used inappropriately – but that’s something you’ll need to make your minds up on independently.
Yesterday a colleague let me know about one such organisation that had evidently found some of their notifications rejected in the past, who had then chosen to take to Twitter to voice their displeasure about me doing my job.
The image they linked to was of me, lying on the grass clutching a bottle of Buckfast – the weekend of the Queen’s Jubilee, if memory serves correctly.
The one they used wasn’t really very good quality though, so here’s a higher resolution one incase they want to try again:
I’m not entirely sure what they were trying to achieve to be honest. It’s not as if pictures of me intoxicated are really all that hard to find, after all. My occasional penchant for Buckfast isn’t exactly a secret at Automattic either, given that I did my first annual ‘flash talk’ at the all-company Grand Meetup in Utah on the ol’ tonic wine.
Somebody (who shall remain nameless) suggested we reply to say:
Even smashed on Bucky, Clicky Steve knows more about the DMCA than RemoveYourMedia
Which is so beautiful it almost brought a tear to my eye.
That wasn’t the only tweet they aimed at me though.
It’s pretty bizarre that they would choose to use that case about Napster to illustrate the potential liability for service providers guilty of contributory infringement, since there are far more recent, compelling, and relevant judgements they could have made their point with. Ah well, better luck next time, eh? As far as I’m aware they never actually sued after these bold statements on social media, but maybe they’re still preparing the paper work.
At the end of the day, whilst this has given me a hearty chuckle before I turn in for the night, there’s no getting away from the fact that it’s not only petty, but ridiculously unprofessional. Making ad hominem attacks on employees of a company for rejecting your legal demands is pretty sad. If I was a copyright holder, I wouldn’t be too impressed to find the agency I had employed to protect my intellectual property deploying tactics like this. Then again, it might be a bigger deal if they had more than 1200 followers…
In the world of the DMCA, there’s only one thing dumber than submitting bogus takedown notifications, and that’s having a tantrum on Twitter when your bogus takedowns are rejected.
The eagle-eyed amongst you may have noticed that not only have I switched the blog’s theme in the past few days, but I’ve also shifted the hosting completely over from a self-hosted WordPress.org instance, to one on the servers of WordPress.com. (Confused? This article will explain the difference.)
For years I’ve always run sites using WordPress software that I’ve configured myself, rather than those on WordPress.com, based on the following reasons:
Hacker Mentality – Not wanting to let go of complete control of my site, and the ability to do with it what I please (like hosting weird web apps and playing about with plugins)
Cost – I was always under the impression it would be relatively expensive to keep all of my stuff on WordPress.com’s servers, as generous pals have hosted my sites previously
Transition Pain – Moving from an already established and customised site to a different platform seemed like a faff, with inevitable SEO problems/broken links
Features and Customisation – Not believing that I’d be able to get my blog to look/feel the way I wanted it to within the WordPress.com boundaries, and that I would miss features (like permalink restructuring)
The more I thought about it, the more I realised that I didn’t actually need to run a self-hosted site for http://iamsteve.in. The design of the site was pretty straightforward, there was no real complicated customisations involved, and the cost of shifting to WordPress.com wasn’t what I thought it might work out at; definitely not for a site that isn’t hosting large numbers of images anyway.
In fact, the benefits of being hosted on WordPress.com seemed more and more appealing:
A dedicated, and passionate support team that are on hand to help out with any issues (Working alongside them, this was an even bigger boon for me personally)
A streamlined interface that I use everyday (for both work and pleasure)
No more having to login to separate admin panels all the time
A site that is integrated into the highly active WordPress.com community – and so more engagement with other users on the posts
No more worrying about rogue plugins crashing or needing to be re-configured after an update breaks something
The ability to take massive spikes of bandwidth, as I’m hosted on WordPress.com’s massive network
and one of the most important things of all:
The knowledge that my host won’t be intimidated by any legal pressures that come from any of the critical posts I write. (See here for more)
I’m incredibly proud to be part of a team that fights back against those who attempt to censor bits of the Internet that they don’t like on a daily basis, and it makes sense to bring my own writing into that fold. I know I have good people on my side should anything hairy come up.
Really the only thing that I was left swithering over was the pain of moving across. I thought I would give it a bash, and two hours later, the entire site is completely migrated over (multiple domain names and all). The difficulties I thought I’d run into didn’t even crop up as issues at all. All of my custom permalinks are smartly resolved by the WordPress software to their new locations (which I am both almost in disbelief and awe at).
At WordPress.com part of my job is to push back against those who seek to abuse the law to censor blogs that they don’t like or agree with. Complainants commonly make claims using the process of trademark and copyright law to intimidate sites into doing what they want, even where they have no valid right to do so. Sadly, many people don’t have the knowledge or resources to fight against this sort of thing, and will remove content after being on the receiving end.
Recently we (the Terms of Service team) received correspondence from someone claiming to act on behalf of Janet Jackson. They had submitted a trademark complaint about the use of the phrase ‘Janet Jackson’ on a particular website. Effectively, they wanted the article removed for an alleged violation of their trademark, despite the fact that the page only mentioned Janet once. This is clearly not what trademark law is meant to be used for – something any law student would be able to tell, and so was clearly just a cynical ploy to have the content removed.
We refused to take action against the site, and notified the owner about what was going on. She has posted up a great response over on her blog. Here are some excerpts:
Allow me to convey my gratitude as both a fan and a corresponding legal target. I recently received the most flattering letter from your IP lawyers in which they allege that I committed a federal crime of TM infringement by mentioning your name in a blog post. That they would devote time and energy to catching my blog in their social media dragnet and do me the honor of writing a cease and desist letter is thrilling.
You see, humble as it may be, I take my writing very seriously (as, apparently do your lawyers). I have a Ph.D. in English, teach college writing and literature courses in Boston, and am working on my first novel manuscript. For anyone to allege lightly and insubstantially that my writing infringes on any kind of TM, IP, Copyright, is personally insulting and slanderous. WordPress’s lawyers have proven their worth by establishing promptly that your lawyer’s charges against me are entirely unfounded. I will not burden this article any further regarding the ins and outs of IP law and this case. WordPress understands the importance of protecting independent writers and free speech from corporate legal bullies.
It’s been a few weeks since I started working from home for Automattic, engineering happiness for users of WordPress.com.
Having moved from an (almost) standard 8.30-5pm, office-based working day, the switch has proven to be an interesting experience.
Even with my youth squandered in online tech communities that operate in very similar ways to Automattic, it’s definitely a mindset shift to go from that sort of world being just something that you do, to something that actually pays the bills. Work is meant to force you into set patterns begrudgingly… right? I didn’t expect there to be too much of an overhaul, but a job with complete flexibility has definitely brought with it some interesting quirks.
Here are some of my observations:
You don’t get distracted
One of the usual reasons that people give for ‘not being able’ to work from home is that they get distracted and can’t concentrate on what they’re meant to be doing. As far as I’m concerned, that’s nonsense. Sure, it may well depend on the person, but if you are independent and self-motivated, you shouldn’t find it a problem to set out an area and dedicate the time you need. If a Gen Y-er can do it – with our alleged ridiculously short attention spans – then so can you.
Going to the bank isn’t the headache it used to be
Ahh… the dreaded trip to the bank/post office/travel agent/loanshark. It was always such a torture to have to undertake any sort of task that fell during the working day. This equally applies to the receiving of parcels. Sure, you can get small things delivered to work, but what happens when you order something big? Carting it back from the office is never a fun task… even if you are lucky enough to have access to a car. Working from home sweeps all of these troubles away in one fell swoop.
Your Neighbours Will Love You!
If you play your cards right, that is. So long as they’ve met you (and you’ve not been weird about it), you can easily become a local everyday hero. Just make it clear that you’re usually around during the day if they have parcels getting delivered, or need an eye kept out for something. Even if they never actually ask you to do anything, you’ve won major brownie points – especially handy when you throw that 7am-finish party with all of your dubious mates.
Lunch is better
The first week I worked from home, I ate nothing but bacon sandwiches – purely because I can. That can’t continue for long though, or I’ll balloon to some ridiculous size. In general though, it means you have access to your own kitchen, rather than an awful, over-priced canteen (or a microwave, if you’re lucky). I was never any good at avoiding squashing my sandwiches anyway, so this is a winner. The only real dilemma is… what to have? So much choice!
You get to mock those who have to commute
I’ve luckily managed to avoid travelling every day during the onset of the Scottish winter this year, which is undoubtedly one of the greatest perks about being based from wherever you choose.
It’s pretty soul-destroying to wake up early, in the dark, to make your way into work, only to return home at night, in the dark. What has never made any sense to me though, is the preposterous notion that people should fight their way for hours through gridlocked motorways in the rain, sleet, and snow, to get to an office to do a job that they could arguably do just as well from home. I’d even go so far as to argue that it’s negligent for employers to expect people to physically come in to work on days where the police are ‘advising motorists not to travel’.
That said, I think there are those who genuinely love this sort of daily battle, as if there is some sort of valour to be had in succeeding in such a pointless trip. Those, my friends, are those whom we should mock relentlessly.
Uhhhm, Leave this one with me.
You can go hours without saying a single word to anybody
Insert your own joke about how it’s better if I keep my mouth shut here. There’s a lot of commentary about how it can be unproductive to be constantly interrupted in an open plan type office, and it’s definitely true. The flip-side is the total opposite though. Unless you live with other people, you can go entire days without uttering a single word. I’m not entirely sure whether it’s a completely zen-like experience just yet.
Watch this space.
This is related to the above. Sure, there are a lot of downsides about working in close proximity with over folk – like having people hang over your shoulder, or force you to look at links on the Daily Mail website (shudders – Linda, you know who you are!), but you can’t really beat the days in work when you’re surrounded by people who are working on the same thing, having a laugh together.
You need to make more of an effort to stay in the loop
This could well be partly because I am refusing to pay for a TV licence, and so am missing out on the news at night, (disclaimer: I don’t own a TV, or watch it as it’s broadcast online) but more often than we think (yes, even in the age of so-called ‘new media’), news is spread by word of mouth, through the people we come in contact with every day.
If your community is online rather than round about you, very quickly you might find that you aren’t as up to speed on local happenings as you might have been previously. It takes a real effort to keep up to date; a battle that I am currently losing, it has to be said.
You can find your natural schedule
I’ve never been a fan of mornings. Not that I don’t like the crisp, fresh air; the tweeting of the birds; and all that. I simply don’t function well at that time.
Part of the problem is that due to whatever screwy Circadian rhythm I have, I don’t naturally get tired until around 2-3am. Irrespective of how early I was up at in the morning, the time I went to bed remained the same. Working from home, I’ve shifted to a 10am-6pm day (roughly), which already means if I go to sleep at 3, I’m getting 7 hours sleep, compared to 4. That’s almost double the amount, and has meant I feel 100% better during the day, with no irresistible urge to disco-nap early evening.
Working from bed is the best thing ever
…for a few hours anyway.
Days seem shorter
Even though I am working the same number of hours, and finishing up the same time I would be getting in from work if I was commuting, the days still seem to fly by. Those extra 3 hours spent getting up, getting ready, and travelling to work in the morning have been converted into sleeping hours, which is probably what they should always have been in the first place.
Concepts of time become more fluid
Weekend? What’s that? With total flexibility, there comes a blurring of the lines between the ‘working week’. When you are able to choose a schedule that fits around your life, that may not be in traditional daily blocks. Many people will shudder at the thought of the lines between work and personal life ‘blurring’, but that isn’t really what’s happening. Just because work becomes spread more diffusely, doesn’t mean that it takes over; it just allows you to integrate it more closely to what fits best for you. Working two hours in the evening or at the weekend instead of on a Monday morning doesn’t mean you are a slave to the job, it means that you are more in control of how and when you choose to give it your full attention.
When you spend all of your time in the one place, with work spread out more than beforehand, It does mean that weekends never feel quite like they used to.
I don’t actually think that that’s a bad thing, for what it’s worth.
Automattic – the company behind WordPress.com, have taken a decisive step in the fight against bogus DMCA claims.
Under the Digital Millennium Copyright Act, people can submit a takedown notice to web service providers where their intellectual property is being used without permission. This is the legislative attempt to protect hosts like Google, WordPress, Tumblr, etc from being held responsible for the content that their users post – provided that they swiftly restrict access.
However, whilst this system is designed to give a balance between protection and enforcement, the reality is that many times it is abused by those who wish to silence critics, or to censor views with which they disagree. The Church of Scientology infamously issued thousands of DMCA takedown notices to stop the spread of anti-Scientology views on Youtube, for example. This tactic is highly effective, as the content is almost always restricted (at its peak moment of attention), and the process to challenge the notices (a ‘counter notice’) isn’t something that creators are, or arguably should be, familiar with. In effect, it becomes a virtual game of ping-pong, with the burden of proof shifting to the ‘author’ of the content to prove that they actually have the rights to publish. Sites themselves can take action, but with the sheer volume of notices that they receive, it is often impractical, and rarely a route that businesses want to go down.
I’m both pleased and proud to see that WordPress are fighting back against two such bogus DMCA claims, as announced in this latest blog post, where you can find all the details of the two cases in question.
For the full text of the original post from Oliver Hotham – one of those that fell victim to the misrepresentative DMCA, continue reading below, where it is republished with permission.