Slashdot Mirror
DMCA Takedown Notice For a Fake ID
TrippTDF writes "Rachel Hyman, an artist and bartender in New York City, maintains a blog where she regularly posts images of fake IDs she confiscates from would-be underage drinkers, along with a description of the confiscation. Recently, one of her posts (Google cache) was taken down when the owner of the fake ID invoked the DMCA against Blogspot. Can one claim a forged document as a copyrighted work of art?"
Wouldn't the picture at least be copyrighted?
In much the same way that I can claim to have invented computers, someone can claim that an illegal document is covered under the DMCA. It is an invalid claim, as no illegal document can be protected in such a manner, but it is a claim none the less.
...or land of litigation and bullshit? you decide.
"Luke, you've switched off your targeting computer, what's wrong?"
and a good writer and apparently an artist as well. She just doesn't just take the id and post it - she writes some hilarious commentary to go with it. I wish her the best and hope that this young gal isn't as rich as she says, or I fear that it may not go well. While Rachel is completely in the right, justice is expensive.
Here is a great gem from her site, "Oh Kathleen O'Brien.. what terribly unjust irony that your fake Id would be confiscated on St. Patrick's Day."
It's hard to believe that's how Micronians are made. Why don't we see it right now by having you both kiss one another?
"Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture." says the U.S. Copyright office.
A fake ID, besides being illegal to create in the United States, is a derivative work of the United States Government, and is not an original creative work of authorship.
At least the article answers the questions of the summary directly. I like not having to think. Either way, trying to claim it was an original work seems really dangerous as its basically an admission of forgery. To any lawyers out there, is a DMCA Takedown notice considered a legal document for which charges could be filed if they implicate themselves within it?
Good question concerning the image of the individual itself from the FPer, does the fact that its included on an unauthorized document void the persons right to control over their own image? If not will video stores be forced to ban "BAD RENTER" walls and such other devices for shaming/controlling problem customers?
Ice Cream has no bones.
... isn't claiming to be the "creator"/"artist"/"author" of a fake ID admitting to counterfeiting? Perhaps not the smartest move ever. And since a DMCA 'takedown notice' is a legal document denying authorship of the fake ID later would probably be perjury.
I sure hope this ends badly for the underaged drunk wannabe.
Even if it is art, would it matter?
Say you've got a website discussing a certain aspect of book cover design. You post example images for the purpose of demonstrating and discussing it. You're in the clear in this case, yes?
Sounds like the same thing.
In fact it is a piece of "original" art. Though I doubt they'd want to go through court with it, over here they could.
... pffft, let a lawyer get creative, they get money for that. And see if the other side is REALLY interested in seeing this in court. But then, that would be here. I dunno if in the US, copyright violations are already superior offenses to crimes against the state.
Though in reply they'd immediately get charged with forgery of an official document. In other words, you go to a civil court, they hit the criminal one. You stand against their lawyer, they stand against the general attorney.
It's a bit like disassembling a trojan. In theory, it is a piece of software, protected by copyright. But I doubt any writer would ever drag you to court for it.
In fact, if I was in her place, I would not comply and instead challenge it on grounds of
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Do you really believe the DMCA is about copyright? Its about having a stick to poke when anybody says anything you don't like on the Internet. The people that created and passed it don't care if others use it as well, as long as *they* get to use it
People who think they know everything are a great annoyance to those of us who do.
...yes, you, Ashley Heyer! You could have left it alone, but you went the bratty way and got your gang of Facebook friends and sorority sisters to start a fight with a woman who just might be the coolest bartender ever and now your story is on Slashdot. Congratulations, Ashley! Thanks to the power of Slashdot, your political career will never be able to get this story off the top link in a Google search for your name. Here's to you, Ashley Heyer, you're a real American Hero!
(hum the theme song as you click the link, folks...)
http://www.google.com/search?q=ashley+heyer
If the plaintiff can prove that the fake ID is his/hers, then he/she has the legal right to post the takedown. Then again, this will confirm to the legal authorities that he/she is a forger of fake ID's and can be arrested and charged. It's a double-edged sword, and in this case, the sharper edge of the blade is poised over the accuser's neck. He/she needs to reconsider the ramifications of the legal action that they took. The feds might just take notice since they take a dim view of folks that make fake IDs.
First rule of holes; When in one, stop digging.
The author should most definitely file a counter-notice against Blogger, and have the page restored.
Directions for such can be found on ChillingEffects
The girl is stupid. Stupid in the same way that every person we interview here gets a MySpace and Google search done on them, informally, just to see what kind of things the Intarwebs have to say about them. It's nothing official, but if we're borderline about bringing on someone, that search might tip our decision one way or the other. If we're "eh" on hiring someone, and find out they prefer to spend their nights playing games until 4 AM, then coming in late to their last 4 jobs, we're probably gonna go with "poor work ethic" and not hire them. In the same way, if she's, say, at NYU Law as an undergrad, when it comes time for internships, all those law firms are probably going to be very interested in the fact that she got caught with a fake ID when she was an undergrad.
As the author states in her writings, "actions have consequences" . In this case, for a young woman who is "going places", her actions are that those places she's going are going to know she, when she was underage, she was willing to break the law just to go out drinking.
I hope Rachel gets the post back online...and maybe even gets the chance to file suit for abuse of DMCA Takedown notices. We'll see what kind of places this girl goes when it's not just a post about her fake ID, but her disregard for the valid use of the law.
This space for rent. Call 1-800-STEAK4U
I can't say I have much sympathy for either of them. In the short span of reading some of Rachel Hyman's blog, she seems quite vindictive and equally purile in tone as the ID holders she confiscates. Plus, what guarantee does Rachel have that any of those IDs are truly fake, and then she goes posting those pictures and names on her blog without permission.
It's one thing to deny entrance into your business based on suspicion (as thousands of bar owners do silently each day) - yet another to make a public spectacle of the whole ordeal. Rachel must like dipping her hand into a can of worms.
I hope, when they die, cartoon characters have to answer for their sins.
Can't they both lose?
In fact, she mentions it in her blog, as well (emphasis mine):
Considering that Vint Cerf, the real inventor of the Internet, says that Al Gore's claims in the (admittedly not very good) way he worded them were correct, I have only one thing to say: "What's a groovy ex-vice-president?" "An algorithm!"
Please, for the good of Humanity, vote Obama.
Two points.
The DMCA takedown notice couldn't have been filed in good faith without the admission of creating a fake ID to which the individual is claiming the rights due her by creation of this document. Also attempting to use a fake document to gain entrance to the establishment would be a crime in itself. Seperate from making the ID. To issue a DMCA takedown requires at least the admission of attempting to use a forged document and even if someone else created it, she would have to name that person or accept the responsibility of creating it herself. Which would be admission to committing a second crime.
If the ID was real and illegally confiscated, the notice would have been delivered by law enforcement officials and would not have been a DMCA takedown notice, it would have been a search warrant based on the account given by the victim and the supporting admission on the theifs website. Stealing someones ID is a crime and someone on the right side of the law can use the police to get justice especially if the theif freely admits it in their blog.
) Human Kind Vs Human Creation
) It'd be interesting to see how many humans would survive to serve us.
Either way, trying to claim it was an original work seems really dangerous as its basically an admission of forgery.
Yep, it was not very smart. Until the DCMA request was filed, the only thing the underage girl could be reasonably convicted of when she hands a fake ID to someone is uttering, ie, presenting forged papers as legitimate. Well, and any additional laws she broke that may be specific to presenting false ID for the purpose of buying alcohol and being underage.
If she filed a DCMA request which implies she's the creator of the work, it's not terribly hard to prove that she's guilty of both forgery and saying.
Sidenote: I've seen half a dozen slashdotters declare "OF COURSE you can't copyright a forged document!", and yet have not offered any citations, explanations (that make any kind of sense) or case history. A cookie to the first poster that does.
Sidenote number two: I'm not really cheering for this waitress. She's got a severe "big fish, little pond" complex going.
Please help metamoderate.
You can die for your country at 18, but you can't have a beer. If you're old enough to die for your country, you're also old enough to have a beer.
If you're in the military, you can buy and consume alcohol, but only at a military base. Try again.
A liquor store clerk is not authorized in most states to confiscate anyone's ID under any circumstances. However, they are allowed to retain possession of the ID until law enforcement can be reached to ensure that the ID is indeed valid. As a former liquor store clerk (booze paid for college!), I've been asked this by many a patron. After I inform them of the law, I ask them if they would like to wait for law enforcement to verify the ID, or they can just leave it with me. In 5 years of work on a college campus, not a single patron ever volunteered to stay.
Let's analyze this problem step by step.
Copyright protection subsists in original works of authorship fixed in any tangible medium of expression. 17 U.S.C. 102.
1. What is original in the driver's license?
The graphics? No. The layout? No. The selection of the fields of data? No. The photograph? Arguably. The data? Arguably.
2. What is original and protectable in the driver's license?
Are photographs protectable? Yes. Is data protectable? No. FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340 (1991).
3. Is the reproduction likely to infringe the protectable content?
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. 107.
The purpose and character appears to be criticism, or at least not commercial. The nature of the copyrighted work is at least allegedly a government ID, which does not favor copyrightability by someone other than the government. The amount and substantiality of the portion used is essentially all, which does favor copyrightability. However, the effect of the use upon the potential market or value of the photograph is, at least to the best of our knowledge, none, since Google is bereft of interesting content regarding Ms. Ashley Heyer.
The fair use factors balance out somewhere along the lines of 3 against, 1 in favor. There could be a more involved analysis, and there could be ancillary factors for consideration, but if I were the one being faced with this DMCA notice, I would file the counternotice and take my chances.
This might differ state to state, but I doubt. Through the miralce of the interweb:
This comes from Virginia, and a quick search showed similar laws in NC and CA. It is illegal to own a fake ID, regardless of your intentions.
Actually... as she says, the law (apparently) in NY is that if she doesn't confiscate them, she's liable. I know here in Ohio, barstaff are required to confiscate them as well.
If you actually like the bar, why the hell do you want the staff to pay several thousand dollars so you can have a drink, and why do you want the bar to risk being shut down?
Nephilium
Hi I'm Mark. I've been a slash dot reader since slash dot radio on the sync in the 90s. I am friends with the ID owner. I told her since she owned the copyright to the picture and signature on the card that she could invoke the DMCA. Rachel seems to be under the impression that the card holder is claiming ownership to the card which she is not,just the image and the signature. I think the DMCA is a awful law, but it is the law. I see this as activism to illustrate how bad the DMCA is. But I must say it feels good to use a law purchased by large corporate interests for personal use.
I used to be manager in the World Famous Barnton Bar & Bistro - as featured on Irvine Welsh's cups - http://www.thebistro.co.uk/index.htm (Pure rubbish website now). From Thursday through to Saturday staff general carded people who they suspected were under 18 years old - that's the legal drinking age in Scotland and the UK. We didn't systematically card everyone because with over 400 people throught the doors in the space of a few hours it just isn't practical. It is illegal in Scotland for a member of staff to serve alcohol to anyone under-age and they can be fined.
It is easy to spot the under age drinkers, here are just six red flags:
1 They don't look around - regular punters always check out the pub because surprising as it is, most people come to the pub for the social aspect and like to see who is in. It is not unusual for a group of woman to come in look around and then immediately leave because there is a lack of male totty.
2. They try to find a seat immediately, preferably down the back or as far away from the bar as people. This is so the youngest of them can attempt to hide in the dark and they can have a committee meeting to decide who looks the oldest and is going for the round (for non-UK residents this is the special social custom of buying all the drinks in rotation). Most regular punters usually try to get served first (well, that's the third reason they came in!) and prefer to worry about a seat afterwards and anyway - you can always just stand near the bar, that's how you meet people!
3. Before smoking was made illegal they always either smoked at the bar or lit a cigarette as they were about to be served. Regular punters simply never did this, even the lowest drunken old bum never did this, they waited until they had secured their drink and then they lit cigarette. Regular punters who actually had a cigarette in their hand when they went to buy their round (to fulfill the complex anthropological necessities of doing this sometimes you have to quickly buy an extra drink for a new arrival just as you are settling down.) would make a great effort to hide the cigarette - not blow it in your face.
4. Behave as if you had roundly insulted them when you ask for their id. Real people who are the legal age are always very amused and smug whenever they are asked for their id and give it willingly and with great enthusiasm. One particulary short and baby-faced student who was actually 25 was always amused when asked for his ID - and boy did he have ID!
5. Avoid eye contact or use inappropriate eye contact. Under agers are always tempted to address their inner child during this stressful trial and find it difficult not to look down or in attempt to overcome this desire, stare straight at you like a mad wookie.
6. Pick the wrong gender of staff for the wrong reasons on the wrong night. Friday night is the end of the week and the traditional night for most customers to be engaged in the search for a sexual partner (...eh your all still with me...? Okay.) This means that women want to be served by the most attractive man behind the bar and men want to be served by the most attractive woman, at the very least you understand, it's practice. Gay men and women do the same thing but obviously with the same sex and if you are wondering how to tell the difference, perhaps you need to get out more. Saturday is for getting drunk, since you may as well console yourself at not having sex the previous evening, so you are not interested in which member of staff serves you.
So Ashley Heyer failed on number 4. And now she's the talk of slashdot. Paris Hilton, eat your heart out... at least until 5th June!
Posts, MyBio or Sig, may contain satire, sarcasm, bolded nouns be sardonic or even witty & be Church of SD
I think you need to go read the articles again, I never got the impression that she actually said all that to the girl, but that she was posting about her own mental thought processes as to why the girl's answer as to where she was from just set off yet more alarm bells about the ID being fake. In that context it's perfectly reasonable, she already had reason to suspect the ID was fake, and the other information the girl provided was at best suspect. Seeing as her job is on the line if she accepts a fake ID she's going to err on the side of caution (for herself) and find that the possible, but not very likely, situation of her being a non-Jewish person from the area is most likely not the case here.
And now you've failed today's reading comprehension test completely. In the article from the first link she says "I've been informed that I'm required to do this." about confiscating the licenses. She doesn't say who has informed her but in context it's pretty clear her boss(es) were the ones who told her. Others in the comments have pointed out that it is indeed the law in New York that fake licenses are to be confiscated. And she didn't taunt her at the bar, she questioned her briefly, found her answers to be unlikely to be true and confiscated the ID and told her "You can't drink here, darling, and I'm keeping your ID." (That's from the cached copy in the second link.)
She apparently does this regularly and hasn't had a rock through her windshield or tires slashed yet. She's had a bunch of people commit mild identity theft over this one post, just ONE out of who knows how many mind you. And why is that occurring? Because the girl who used the fake ID is stirring up attention. Now, tell me, who exactly is "attention-whoring on the 'net" here? The bartender, or the girl who tried to use a fake ID and got busted? Looks to me like it's the latter, and she's even upping her crime level from presenting a fake ID to admitting she MADE the ID to filing a false DMCA report, etc.
If you'd bothered to research any at all and find out that it is indeed the law for fake IDs to be confiscated in New York you'd know that there isn't any question that the ID was fake at this point. If it had been all it would have taken is a quick visit to the police and they would have come to the club and got the girl's license back that night. Before the bartender went home with it. Before it got posted online. But that did
Well, then the clerks at the liquor store are working under different laws than those of us who have 'just' worked at bars. In Ohio, bartenders and bouncers are obligated to retain any and all fraudulent identification. I took a course offered by the Ohio Division of Liquor Control, and was informed that, indeed, we had to retain fake IDs. As well as learning neat tidbits, like that it is okay for underage people to drink with their parents or over age spouses. Of course, the person who was trying to use the fake ID could request that a police officer verify it but, for some reason, that never came up with me.p>
Also:
MANUFACTURING FALSE ID:It is illegal for any person other than the state to manufacture, sell, or distribute in any manner any identifaction card issued for the purpose of establishing a person's age that displays the great seal of Ohio, the words "Ohio", "State", "Official", "Chauffer", Commercial Driver", "Driver", "Operator", or any other designation that represents the card as the official driver's license or identification card of Ohio
Source (PDF warning)
That's just Ohio, though, but I can imagine that about every state has laws very similar.
Skeptical Limericks
So tell me... where does pure "art" come into play? Let alone photography or photographers? Don't give me the "they couldn't forsee photographers" bit, cause they surely could foresee painters, and they didn't mention them while explicitly mentioning the other professions.
The use of "authors" seems to imply creative writing, but I wonder if they didn't simply mean the writers of instructional books like "a guide to the production of lead bullets" or "how to pack a cartridge." My educated guess would be that the intent of "useful arts" would be things like metalsmithing, carpenty, etc. The kinds of things that had economic use, not just aesthetic.
Regardless, how would photographs fit into either a strict-text or intent-based reading of the Constitution? The best I can figure would be a really, really loose reasonable-construction test. But hell, I think the process for forging licenses would be more of a "useful art" than any individual mug shot, so how would the photo be more copyright-able than the license itself?
With all the discussion about whether or not you can copyright a forgery, I'm more concerned for the information contained on the legit ID/forged ID itself. We can see they contain a name, address, birth date, driver's license #, physical description, photo, and signature.
Leaving aside the possibility that it is a valid ID, let's look at a hypothetical-- say only the picture has been forged. Say a legit ID was stolen/copied and someone slapped their face (or the face of someone else) on it. Or maybe it's an innocent "borrowed" big brother's ID or a picture with a similar enough face for the scammer to get by. The rest of the info is valid, and now the innocent cardholder has not only had their ID taken, but now their personal info has been posted on the Internet too!
How many of you have been asked for your birthdate, street name, or driver's license in lieu of a password as a kind of phone verification? I've had credit card companies and others do this all the time.
Even assuming the IDs ARE faked, forget shaming- is it not vigilante justice to violate the suspected faker's information online and subject them (or their victims) to an increased likelihood of identity theft? Does this violate state or federal privacy laws?
Just a consideration that occurred to me..
W
-------------------
This is my SIG. There are many like it, but this one is mine.
I checked the NY laws, creation, possession and/or use of a fake ID that looks like a government-issued ID is punishable by up to 7 yrs prison time.
wings.buffalo.edu/law/bclc/web/NewYork/ny3(a)(2)
NY Penal Code Section 170.10 Forgery in the second degree
A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality;
Forgery in the second degree is a class D felony.
NY Penal Code Section 170.25 Criminal possession of a forged instrument in the second degree
A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10.
Criminal possession of a forged instrument in the second degree is a class D felony.
As noted by the parent post, a lot of comments below assume she is claiming authorship of the fake ID. She's not. She's only claiming authorship of the photo and signature. I suppose her defense will be that someone stole her photo and created a fake ID without her permission. I'm not sure that story will be sufficient to create a reasonable doubt in the minds of the jury if she gets charged with forgery.
I have a CDL drivers license and the backgrounds on those used to be/are in my area, a different color then the regular licenses were there was a color for the over 21 crowd and under21 crowd when the license was issued.
I was at the store and some broad asked for ID for the beer I was buying, she looked at it and declared it fake then refused to give it back. I was furious and demanded the return of the license and eventually called the police after locking the front entrance to the store to get it back(she called the law after I locked us in too). Fake Id or not, I don't understand what gives people the gull to keep something that doesn't belong to them when they obtain it though the course of a normal transaction. I was about to just beat her over the head to get it back but decided calling the police and reporting it stolen by her was better.
Now, I'm not sure what the laws for a fake ID are but I would think that anything that belongs to me, no matter how legal it is or not, still belongs to me no matter who has it in their possession. And without some court action declaring it illegal or fake to the respect of it not meeting the requirements of the legal system, I'm not sure how someone can make this claim with impunity. Just because someone refused to give something back doesn't mean it is now theirs, it just means it is now in their possession. I think whoever took the ID in order to profit from a website should be sued or fined by a competent court without consideration of the validity of the document. I have no sympathy for them. And yes, Anything on the license could still be that persons property and should warrant a DMCA take down notice. In possession doesn't equal ownership. Especially when the name and picture on the ID shows it belongs to someone else.
1. Police are free to confiscate illegal items so there is no "but its mine". I encourage you to tell the cops they can't take your drugs because they are yours
2. You apparently don't understand what happens to booze slinging places if they DO sell to underage kids fake ID or not. Typically they get shut down, completely. Well at least they lose their license to sling booze and get hit with a hefty fine, and when a bar doesn't sling booze, the bar doesn't exactly do business, but they still have to pay the rent, electric, etc...so in effect their business gets completely shut down. So because some dumb shit kid wandered in and you didn't catch the Fake ID you lose your entire business and all your employees lose their jobs?
3. Just in case you aren't aware. While it may vary from state to state, your drivers license or other such IDs rarely belong to you, they frequently belong to the state. Any sane court would toss out any claims of theft of a false ID in a heartbeat and not waste a dime of taxpayer money pursuing such nonsnese, and would then proceed to punish the fool with the fake ID.
4. I bet you one of those people that thought it was smart when the drug dealer called the cops because someone stole his drugs too huh?
5. Kudos on your rational behavior locking yourself in while demanding your ID back. I am certain that there was very little attempt to explain or work this out rationally. As you said you were furious and eventually locked yourself in. Next time try to be a little more sane and rational, and if needed call the cops to handle the dispute, but acting a fool and locking yourself in is just childish.
The only change I can believe in is what I find in my couch cushions.
In all states that I am familiar with, the alcohol vendor is actually required by law to confiscate fake IDs. Since the store owner believed (incorrectly, of course) that your ID was fake, she was required to confiscate it. Had she not confiscated it, she could be fined.
Your recourse, of course, is to call the cops and let them sort the mess out, which you did. Locking yourself in the store was a cute, yet freakish gesture.
They don't grade fathers, but if your daughter's a stripper, you fucked up. --Chris Rock