The Fallout From a Flickr DMCA Takedown

Maddog Batty writes "Dave Gorman, UK comic and Flickr user, recently received a DMCA takedown notice for one of his own pictures which had become rather popular — 160,000 views + lots of comments. The takedown was in error (from a porn company) and Flickr allowed him to repost the image. However, the fallout is that all the original comments are now lost and the many links to the original picture are now broken. Sure, Flickr needed to remove the image, but shouldn't there be a way to reinstate it while keeping all the original comments and links?"

Comments

Of course there should

[nedlohs]

And he can sue flickr for the damages - likely limited by his agreement with them to at most what he paid them in the first place.

Re:Of course there should

[HBI]

I suspect the porn company is not liability limited and probably has lots of cash. Sue them, and let them sort it out with Flickr.

Re:Of course there should

[Anonymous Coward]

This precisely. The safe harbor provisions are for the ISP. If the takedown notice was in error, and there was no good faith basis for it, I am sure there are several avenues of damages available. The question is quantifying them. It would be better if Flickr had some sort of not shown due to DMCA status, that would just remove the same database entry.

Re:Of course there should

[Marillion]

Better yet, go after the company that issued the false takedown. While I'm all in favor of legitimate rights holders defending their property, we've seen too many erroneous takedown notices issued with cavalier disregard for the rights of owners who prefer to share their intellectual property with the world. This has to stop. As long as takedown notices have no risk to the issuers, don't expect the errors to stop.

Re:Of course there should

[dkf]

I suspect the porn company is not liability limited and probably has lots of cash. Sue them, and let them sort it out with Flickr.

Sue both of them. It should also be possible to work out some kind of libel claim in there ("They were alleging I was a copyright pirate, your honour, yet I have enormous respect for all forms of IP as it is a key part of how I earn my living!") Now, Gorman's a UK citizen and is resident in the UK, so using a UK court to pursue a libel claim is A-OK. Heh heh...

Re:Of course there should

[Fluffeh]

Better yet, go after the company that issued the false takedown.

I believe that this is the best approach. You won't make much money ffrom this sort of action, but I am pretty sure that there are some fairly strict rules about issuing false notices and the penalties for doing so. He wouldn't make too much from it, but the company that issued it would surely be in a world of hurt. Perhaps this is a great opportunity for the EFF or someone similar to take up the cause and do it on behalf of the photographer?

Re:Of course there should

[Anonymous Coward]

The only libel is against all comics in suggesting that Gorman is among them. The man's awful.

Re:Of course there should

[Moryath]

some sort of not shown due to DMCA status

Funny, that's what MegaUpload did. And look what happened to them...

Re:Of course there should

[Caesar Tjalbo]

What damages?

Re:Of course there should

[Anonymous Coward]

I think Megaupload did the multiple links to the same source, which is what flickr does now ultimately if TF summary is true. It would make sense for them to preserve the database entry for evidentiary purpose in the event that either party filed suit against them. So, if after investigation, the DMCA claim was false, restoring the original link would be easier. But what do I know I am a lawyer, who forgot to sign into his Slashdot account twice... sh*t

Re:Of course there should

[Anonymous Coward]

Hosting and Domain cost for every website affected.

Re:Of course there should

[Moryath]

If the takedown notice was in error, and there was no good faith basis for it, I am sure there are several avenues of damages available.

Actually, the only thing you can do under the DMCA is try to get a prosecutor to indict them for perjury.

*gigglesnort* yeah right, a prosecutor ever going after the MafiAA...

Re:Of course there should

[icebike]

but I am pretty sure that there are some fairly strict rules about issuing false notices and the penalties for doing so.

No. Not really. And that is the whole problem with this one-sided legislation. Zero penalties for false take downs.

Because virtually all of congress is in the pocket of big media, there is almost zero chance of getting this fixed any time soon.

Re:Of course there should

[erroneus]

While that's one approach, the real problem is the DMCA law which enables this. The courts system can rule a law "bad" and can limit or even revoke a law. What has to be done to prove it's a bad and highly abused law? Surely there's more than enough evidence that it is being abused on a global scale.

Re:Of course there should

[Richard_at_work]

There is certainly a case to be made that the issuing company should serve a penalty for making a false or mistaken claim, but its hardly their fault that Flickr have a completely brain dead way of reacting to takedown notices, so I doubt that any court would agree that they are responsible for the loss of comments or broken links - Flickr knows that the DMCA exists, they have an established process for dealing with violation notices and they know that there is a grace period during which a counter claim can be made.

The loss of data and links here is entirely Flickr's fault - their DMCA process should never result in the mess that it did, because there are always going to be situations where counter claims are successful.

The police don't summarily execute everyone they arrest when an allegation has been made, and thats basically what Flickr did here.

Re:Of course there should

[Anonymous Coward]

Go read 512: "remove or disable access to" - 403 is just fine. You don't actually have to rm.

What they appear to be accusing MU of is having deduplication and therefore knowing that there were multiple links to the same file, only taking down the links actually identified in a DMCA 512(c) takedown, and having actual knowledge that other links to the same file were also copyright-infringing and doing nothing about it.

Whether that is actually illegal under US law has never, to my knowledge, been tested, although clearly the Department of Justice think it is in that particular case.

Re:Of course there should

[Lumpy]

"The question is quantifying them. "

100 billion US dollars should work, the RIAA and MPAA can claim such absurd numbers, why cant this guy?

Re:Of course there should

[Jane Q. Public]

No, it isn't the whole problem. It is only part of the problem. Another part of the problem is that it allows takedowns BEFORE any "due process" has been undertaken. (A statement of "this is an infringing post" does not qualify as "due process".)

The whole takedown notice scheme needs to vanish from this country. Completely. Things need to go back to the way they were before, when someone actually had to demonstrate a violation in front of a court before expression could be suppressed.

Re:Of course there should

[Forty Two Tenfold]

And what an apt name, "Wasteland."

Re:Of course there should

[Fluffeh]

There have been a few nice cases where the folks that issued a false takedown notice ended up being given some interesting punishments. It's not a level playing field, but it's not totally utterly one sided.

Re:Of course there should

[icebike]

Well in principal I agree, but "Due Process" is a slippery term. Essentially passing a law stating what the requirements are becomes the definition of "due process" in that context. But further It only applies to actions of governments.

Clearly fairness is at issue here.

With virtually every web user able to upload photos, writing, music, and video, the rights of the actual IP holders of those items was swamped by the masses. There aren't enough courts in the land to handle these issues. It could never be handled in the court system.

If you had to individually sue every person who posted your copyrighted short story or picture, you could go broke trying to enforce your rights.

Under the prior law there was, in effect, zero protection for the rights holder. As a small artist or writer, there was really nothing you could do against people who posted your work without your permission. There was even less you could do against the individual downloader of your works.

The current situation flips that on its head, handing the big hammer to anyone who cares to make a claim of copyright violation. There is some recourse in the law for the poster to prove the takedown was invalid, but there is no penalty for filing a false claim.

The only solution that is workable without totally swamping the courts would be some sort of (rapidly escalating) penalty for a false take down notice. Both a fiscal penalty, and perhaps a "Rights" penalty. Abuse your right to bear arms and you lose the arms (and perhaps your liberty). Abuse the right to issue take down notices, and you pay a fine, continue to abuse it, and you lose the right to issue take down notices (and, effectively, your copyright).

You probably still need a way to prevent people from posting an entire 60 million dollar movie on the web somewhere. A quick take down should be available in this case without going to court in every jurisdiction in the world.

Re:Of course there should

[Samantha Wright]

Actually, the summary is slightly in error—it wasn't the porn company, it was on behalf of the porn company, an IP troll called Degban. Like Righthaven, only way, way more stupid and aimless. Degban claims to have been hacked, on top of that. Pretty sketchy, I gotta say.

Re:Of course there should

[icebraining]

What they appear to be accusing MU of is having deduplication and therefore knowing that there were multiple links to the same file, only taking down the links actually identified in a DMCA 512(c) takedown, and having actual knowledge that other links to the same file were also copyright-infringing and doing nothing about it.

Uh, no, they didn't know (at least, not legally) that the other links were infringing.

If I take a picture and upload it to e.g. Flickr, and then someone else downloads it from my profile and uploads to his, that copy is infringing and mine isn't, even though it's the same file.

Whether a file is infringing depends on its colour, not just on its bits.

Re:Of course there should

[Idbar]

And if not legally, let them know that false claims will cause them at least 1 year of not able to claim. If another comes up.. 2 years, 4 years. And so on. There should be a mechanism to avoid those takedown bombs.

Re:Of course there should

[hemo_jr]

A bogus take-down notice can be much more damaging than actually putting up infringing files. Yet putting up an infringing file can result in the dismantling of the company that put it up, the company hosting it, and imprisonment or even death (if arrest is resisted) for any real person involved.

The lack of appropriate and equitable punishment for wrongful take-down encourages recklessness and fraud on the part of alleged rights-holders or their agents. There have been multiple examples of fraudulent claims by bogus rights-holders, as well as by those who would trample fair use and criticism. All this has been done without any real consequence to those who issued the false take-down notices.

Re:Of course there should

[dgatwood]

Sue all three. The porn company for employing a company that was grossly negligent (because by doing so, they implicitly assume liability for that other company's actions on their behalf), the IP troll company (which probably has no assets) for making the false claim, and Flickr for failing to correctly reinstate content after a fraudulent DMCA takedown.

Re:Of course there should

[ffflala]

I suspect the porn company is not liability limited and probably has lots of cash. Sue them, and let them sort it out with Flickr.

Under US copyright law, unless Gorman had already registered his copyright on the picture in question, he will be limited to suing only for real (IOW minimal) damages, not punitive damages. It doesn't look like there is much, if any, in the way of real damages here. He would have to have been actively selling the picture, or using it in some other way to directly generate revenue.

Under the US and other WIPO compliant countries (most of them), creative works are copyrighted at the moment of creation. But in the US, if you want the protection of being able to sue someone's pants off for a copyright violation of your pic/book/song/painting/sculpture/computer program, you need to pony up the $65 fee and register your work with the US Copyright Office.

Re:Of course there should

[mysidia]

Actually, the only thing you can do under the DMCA is try to get a prosecutor to indict them for perjury.

The DMCA doesn't contain a provision holding them harmless. They can still be liable for causing the takedown.

Also, "flickr informing the author they can repost" the material doesn't meet the requirements for the safe harbor to apply

512(g)(1) (1) No liability for taking down generally. - Subject to paragraph (2) ....
(2) Exception. - Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider - ... (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network.

Re:Of course there should

[owenferguson]

Mod parent up for referencing Matt Scala!

Re:Of course there should

[HBI]

I think you are referring to statutory damages. While that would be a nice avenue to have in this case, I don't think it is absolutely necessary in this case, even though there wasn't much money lost.

Re:Of course there should

[andydread]

The the damages are the cost to Flickr of restoring the post to exactly the way it was before any of this shenanigans started and to maintain all the posts that occurred after the takedown along with attorneys fees. Like the GP said sue them and let them sort it out with Flickr

Re:Of course there should

[Nursie]

Does this count for non-US folks though? Does the law apply that way for things published from another country on a service that's running in the US?

I had a feeling there were exemptions to registration for that sort of situation.

Re:Of course there should

[Smauler]

This seems to be their defence :

Hello Dave

I do apologize for the inconvenience, we have been victim of a phishing/hacking attack, which was aimed at reducing our credibility
among clients and the public as you can see how, I truly am sorry
that you were effected as such, but allow to humbly suggest that
you channel a part of your anger at those holier than thou hackers
who effect users like yourself by such irresponsible actions
we are working hard to fix the matter, but alas we can not do much
as the size of the attack was larger than we could have expected

I am hoping you can manage to get back your traffic and are never
affected by such issue ever again

Yours
Taban Panahi

Degban Ltd.

I don't even know where to start with this.... so many targets. I was going to put (sic)'s in, but I gave up after the second line. It looks like it has gone through a spellchecker, I'll say that much.

Re:Of course there should

[Jane Q. Public]

"But further It only applies to actions of governments."

It doesn't actually say that anywhere, but even if it did, that is irrelevant because a takedown amounts to a de facto seizure of property, without due process, as a requirement of the federal law. So even if "due process" only applies to government action, it still applies in this case, because Congress authorized the seizure of valuable property (whether text, images, or other works) without any "due process" whatever. This is antithetical to some of the most basic principles of American law.

"The only solution that is workable without totally swamping the courts would be some sort of (rapidly escalating) penalty for a false take down notice."

Nonsense. It is by no means the "only" solution. Repealing the takedown clauses of the DMCA would solve the problem as well. The problem did not exist before the DMCA. Remove the relevant clauses from the DMCA, and the problem goes away, and we are left with the much more sane system we had before, which actually worked.

"You probably still need a way to prevent people from posting an entire 60 million dollar movie on the web somewhere. A quick take down should be available in this case without going to court in every jurisdiction in the world."

I disagree 100%. The advantages are still with the rights holders, even without the DMCA. A person should have to be accused and convincingly shown to have broken the law before action is taken against him. That is the way American law has worked in almost every situation prior to the DMCA. That system did work and created a situation in which the rights of all parties were pretty fairly balanced. The same cannot be said of today, post-DMCA.

Keep in mind that infringement (in the vast majority of cases) is no crime. Nobody is "stealing" a 60-million-dollar movie. Further, the actual statistics say that downloading has not harmed actual music or movie revenue. On the contrary: after a short-lived slump that was almost certainly due to a slow economy, total music and movie sales set yet another record last year. Even in the "slow" years, their total revenue still increased from year to year; far better than many other industries fared.

Re:Of course there should

[Anonymous Coward]

This precisely. The safe harbor provisions are for the ISP. If the takedown notice was in error, and there was no good faith basis for it, I am sure there are several avenues of damages available. The question is quantifying them. It would be better if Flickr had some sort of not shown due to DMCA status, that would just remove the same database entry.

But not damages arising from incompetence on the part of Flickr. There is no good reason why they reposted the content instead of reinstating the original content on the original link.

Re:Of course there should

[Smauler]

From Degban Ltd's website terms of use :

This website uses cookies to monitor browsing preferences. If you do allow cookies to be used, the following personal information may be stored by us for use by third parties: [insert list of information].

They've found me!

Unauthorised use of this website may give rise to a claim for damages and/or be a criminal offence.

The sun may not rise this morning, too.

Throughout the website they write their emails as "Lumiere at Degban.com", "Chopin at Degban.com" and "Gutenberg at Degban.com". I wonder why they don't just use lumiere@degban.com, chopin@degban.com, or gutenberg@degban.com?

I consider all my information very confident what do I do?

I'm not sure, is your information aggressive and/or overbearing, too?

Re:Of course there should

[michelcolman]

Yeah, when I read the title of the post, "The Fallout From a Flickr DMCA Takedown", I was really, really hoping that the fallout was for the company that issued the takedown. Finally! But no, sadly, the fallout is still for the victims and not for the big companies claiming false copyright on other people's intellectual property. Will someone please sue those people? Claiming copyright on someone else's work, to me, is far, far worse than just copying someone's work. Imagine what would happen if I went to a record store and said "this song by Beyonce is actually mine, I made it, so you must remove it from your store at once".

Remove it, why?

[Anonymous Coward]

Why did Flickr need to remove it? Just because someone said that it violated their copyright? Did they prove it before the removal? No? Then there was no need to remove the it!

Re:Remove it, why?

[Anonymous Coward]

Because if Flickr doesn't remove it, they lose their safe harbor protection under the DMCA. If the photograph turns out to be posted without authorization, then the rights holder can sue Flickr for damages.

Blame the DMCA and the corrupt congressmen + President who signed it into law.

Re:Remove it, why?

[HarrySquatter]

Because those are the terms of the DMCA.

Re:Remove it, why?

[Frank T. Lofaro Jr.]

They didn't need to DELETE it, just BLOCK access to it.

Only delete it if there was no DMCA re-instatement in a reasonable time.

By DELETING it they are unable to RE-INSTATE access, and are LIABLE for THAT under the DMCA.

Allowing a reposting is not the same thing, even after one gets the right to repost one has to re-upload the content and the comments, original file name, etc are lost.

Also, not following the DMCA takedown procedure just denies you an automatic safe harbor, you aren't automatically guilty, just not automatically innocent. Of couse, most judges and juries are idiots so being in front of either is usually bad unless you are a plaintiff. Judges and juries only feel they are doing "justice" when they award damages.

Re:Remove it, why?

[NormalVisual]

All they'd need to do would be to replace the image with a placeholder "Temporarily removed due to DMCA action" image at the same URL, and maybe hide the comments. When the DMCA request turns out to be faulty, they either restore the image, or have the owner re-upload it and point the page at the new image, with all the comments and links remaining intact.

Re:Remove it, why?

[pixelpusher220]

'How' they implement the DMCA is up to them. 'How' they repost the content is also up to them. I don't believe there's anything in the DMCA about where that content needs to be located beyond posted by the people who previously took it down so Flickr has covered their requirements.

The important question, is why isn't Flickr doing the grand gesture of simply restoring the content from BACKUPS. They have to have backups of the damn content, they didn't have 160K comments residing in memory...

Re:Remove it, why?

[Anonymous Coward]

Blame the DMCA and the corrupt congressmen + President who signed it into law.

No, I blame the assholes who vote for and reelect them

Re:Remove it, why?

[SuricouRaven]

Because if they don't remove it immediatly, they become liable. Their role under the DMCA isn't to decide if the claim of infringement has merit - their role is to get it down as fast as possible, and then let the poster and complaintant sort it out in court between each other. This actually makes more sense than might at first be apparent - do you really want companies with no experts and no interest in law to make decisions as to what is infringing?

On the other hand, you can be confident that if the upload were by someone with a lot of money and influence, flickr would have found some way to stall - if not, the official Disney channel on youtube would have been pulled a hundred times over by activists fileing fraudulent takedowns just to prove how easily the system can be abused. It's the same old legal situation as it has always been: The law is written to protect all equally, but in reality it protects you a lot more if you've deep pockets and friends in high places.

Re:Remove it, why?

[sjames]

Unfortunately, just appearing before a judge and jury is fantastically expensive. Even if you win, you lose.

Re:Remove it, why?

[Anonymous Coward]

>No, I blame the assholes who vote for and reelect them

I suggest you look further, at what it is that gets them to vote the way they do. I bet capitalism and it's distributed propaganda machine might be a good candidate.

On the other hand: Who are you gonna vote for instead? Maybe many feel they vote for the lesser of two evils.

I feel we're infuriatingly stuck, but the powerful are perhaps being too greedy and many people are starting to feel less comfort and convenience. Change is brewing,.

Re:Remove it, why?

[MattW]

The takedown process of the DMCA is one of the better things to happen to the Internet. It provides genuine safe harbor. Without the DMCA, for example, YouTube would have been stillborn.

The problem is Flickr's handling is just not graceful. They are required to take down the item when a notice is received. The user files a counter claim, Flickr can then restore the image and send the user's info to the complainant, who must then sue the user directly, and Flickr remains protected until it is adjudicated by a court, even if they image stays up.

Re:Remove it, why?

[fyngyrz]

Unfortunately, just appearing before a judge and jury is fantastically expensive.

To elaborate: Money; Time; Stress; Interference with your life; potential for losing even when you are in the right.

Avoid the US court system by any means practical -- it is corrupt, biased, unfair, and in the final analysis, unjust.

Re:Remove it, why?

[fyngyrz]

Who are you gonna vote for instead?

Ron Paul. Best choice by far.

Re:Remove it, why?

[fyngyrz]

Without the DMCA, for example, YouTube would have been stillborn.

Ok, now you're just teasing us with a dangling, forlorn hope. No more blurry videos of idiots, nowhere for the dumbest comment writers on the planet to spew their endless misspellings and mangling of grammar and pop-culture bewilderment? Un-possible!

No. Just, NO. Youtube will always be with us. "Shall not infringe" will always mean "infringe all you want"; and we have always been at war with Eastasia. Uh, drugs. No wait, with the children. For, I mean. Well, you know. Stuff.

Re:Remove it, why?

[fyngyrz]

(Removal) != (deletion + loss + additional unnecessary harm)

Re:Remove it, why?

[Larryish]

Well put, my friend.

If I had mod points, I would spend them all modding you up.

Re:Remove it, why?

[Anonymous Coward]

Well, if that's true, it only shows how bad off we are. May as well just burn the house down.

Re:Remove it, why?

[Anonymous Coward]

I would blame them, but at this point, that President is is much revered after the screw ups Bush & Obama that came afterwards.

Re:Remove it, why?

[nosferatu1001]

Theyre NOT required to remove it - they can disable access to it, instead.

Re:Remove it, why?

[PhilHibbs]

I agree, the porn company is not responsible for Flickr's stupid implementation of the takedown.

Easy but it was not done.

[WillRobinson]

Most cases in games, for example they put a place holder picture, saying waiting for review or something. They could have done that. Then put the picture back when it was straightened out. No loss of comments etc.

Re:Easy but it was not done.

[pixelpusher220]

Agreed, of course what is preventing them from loading this picture + comments from backups is beyond me...

"Sure, Flickr needed to remove the image,"

[Anonymous Coward]

Sorry, what? It didn't take the author of the photo much legwork to find out this was frivolous, and even if we assume the people processing these DMCA takedown requests for Flickr can't be bothered to look into every DMCA takedown request they get it, surely they should be able to quarantine these files in the event the Flickr-publisher wants to dispute the takedown.

Re:"Sure, Flickr needed to remove the image,"

[91degrees]

What can Flickr do to investigate? They have no way of knowing who the copyright holder is. It may well be that someone else took that photo, and that he was reposting it without permission.

Hiding vs. Removal

[ShaunC]

Sure, Flickr needed to remove the image

Is that actually true? From various YouTube DMCA stories, it seems like YouTube just hides the video content and renders an error message when you try to view it. If the takedown is reversed, they re-instate the video at its original URL; the uploader doesn't have to upload it again. Surely Flickr could implement a "hidden" flag as opposed to deleting an image outright?

Re:Hiding vs. Removal

[AK Marc]

There's also no legal requirement to take down something upon receipt of a properly formatted DMCA takedown notice.

Re:Hiding vs. Removal

[Narcocide]

Correct, they're blaming the law for a corner they cut in their own software development that now would cost more to correct than potential legal fallout from the loss of user data.

Re:Hiding vs. Removal

[Anonymous Coward]

Correct, they're blaming the law for a corner they cut in their own software development that now would cost more to correct than potential legal fallout from the loss of user data.

Assuming by "they", you mean Flickr/Yahoo!. The article doesn't mention Flickr giving any kind of reason why they couldn't or wouldn't just reinstate the image as was.

You sound very sure of yourself, where did you get your information from?

Re:Hiding vs. Removal

[lennier]

From various YouTube DMCA stories, it seems like YouTube just hides the video content and renders an error message when you try to view it. If the takedown is reversed, they re-instate the video at its original URL

Hmm. Isn't that behaviour (hiding rather than deleting DMCA-challenged content) exactly what Kim Dotcom did and is now facing criminal charges for? How can it be legal when Youtube does it, but not when Kim did?

Course the trial hasn't happened yet so the Dotcom case could still backfire.

Re:Hiding vs. Removal

[Seraphim1982]

Hmm. Isn't that behaviour (hiding rather than deleting DMCA-challenged content) exactly what Kim Dotcom did and is now facing criminal charges for?

No. In that case the content was still available, you just had to take a different path to get to it.

Re:Hiding vs. Removal

[FrangoAssado]

I don't think that's right. If I understand things correctly, if the service provider (Flickr, in this case) wants to stay protected by the "safe harbor" provisions of the DMCA, it must "expeditiously" take down the (allegedly) infringing material:

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed. [my emphasis]

From http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=130.

Of course, if the user then says that he can legally use the material, the provider must (if the matter doesn't go to court) put the content back up:

[...] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)] [again, my emphasis]

From http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=713.

Re:Hiding vs. Removal

[Jane Q. Public]

I am not positive, but I think the issue with Megaupload was that they DID take down the particular file that was being complained about, but did nothing about the (possibly several or even a hundred) other copies of the same file that other people had uploaded.

Of course, if you want to do that, you run into other issues: how do you know two uploaded files are the same? You could do a CRC check, which is non-intrusive, but also not a very good method. I could add a short text file to the .zip I upload, which changes the CRC beyond recognition. Basically, what they would have to do would be intrusively scan and catalog everything that was uploaded, which arguably throws away any "safe harbor" they might claim.

That's one of the big problems with all these schemes calling for repositories and ISPs to monitor the content passing through them: it is fundamentally intrusive, and might endanger any "safe harbor" provision they could otherwise use as a defense.

Re:Hiding vs. Removal

[Narcocide]

Just a lucky guess from seeing it happen 1000 times first-hand I suppose. How about you?

Re:Hiding vs. Removal

[icebraining]

Actually, they did deduplication of files, so there was really only one copy, with multiple links to it. They just took down a particular link when they got a DMCA missive.

Personally, my issue with it is that a file is never infringing by itself - it depends on whether the person who uploaded it has a license to do so or not. So even if a particular link is infringing, MU had no way to know if the others were too.

Re:Hiding vs. Removal

[AK Marc]

Everyone is so afraid of violating "safe harbor" that they knowingly take actions that hurt their customers. I used the word "requirement" and no such "requirement" exists, though there are differing levels of liability based on actions, but no "requirements."

Re:Hiding vs. Removal

[Phanatic1a]

I don't think that's right.

It is right. A DCMA takedown notice is a legal document that has to comply with the specific requirements of the act. You can't just write "Yo, doodz, take this off your webs" on a post-it and expect it to have legal weight. From the actual law:

Probably most crucially, one of the things the takedown notice must have is:

(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.

Basically, whichever person at Wastelands or its legal counsel who put his signature on this takedown notice either didn't include this statement, in which case Flickr is entirely free to ignore it, or committed perjury. What would be nice is if a few DAs hungry for media attention started nailing some of these fraudulent claimants to the wall pour encourager les autres.

Re:Hiding vs. Removal

[FrangoAssado]

The "safe harbor" provisions are the only thing that keeps Flicks from being completely taken down when someone claims it's hosting material that violates copyright (yes, the DMCA sucks).

So, saying that there's no "requirement" in this case is like saying that there's no "requirement" that you comply when someone points a gun at you and asks for your wallet. It's technically true, but irrelevant.

Re:Hiding vs. Removal

[AK Marc]

The "safe harbor" provisions are the only thing that keeps Flicks from being completely taken down when someone claims it's hosting material that violates copyright (yes, the DMCA sucks).

You don't lose safe harbor in the future if you fail to follow it for any previous actions. They can do some verification on their own for individual claims and "violate" the DMCA on a case by case basis and not lose safe harbor for any future claims.

So, saying that there's no "requirement" in this case is like saying that there's no "requirement" that you comply when someone points a gun at you and asks for your wallet. It's technically true, but irrelevant.

More like you have a gun in your hand pointed at them. You can shoot or not, and shooting may "win" you that conflict, but land you in trouble. Failing to follow the DMCA for any one specific claim does not have the effect where anyone else with a claim can skip the DMCA and simply get the site completelytaken down. And even if that were to happen, it would take a court order. If everyone who received a DMCA takedown threw it away, then copyright (And the sites involved) would be better protected than they are now. But the tragedy of the commons dictates that it's easier to work in your own self interest, rather than the good of all.

Re:Hiding vs. Removal

[FrangoAssado]

I don't think that's right.

It is right.

Uh, I'm confused. By "it is right" do you mean that Flickr could have chosen to not take down the picture? I don't see how it fits the rest of what you said:

A DCMA takedown notice is a legal document that has to comply with the specific requirements of the act. You can't just write "Yo, doodz, take this off your webs" on a post-it and expect it to have legal weight.

Sure. I was responding to someone who wrote "upon receipt of a properly formatted DMCA takedown notice". I take that to mean that the notice complies to the specific requirements of the DMCA.

Probably most crucially, one of the things the takedown notice must have is: [...]

Yes. The text you quoted is also present in the first page I linked. I just didn't think it was relevant enough to quote it. To be completely honest, I still don't see the relevance.

What would be nice is if a few DAs hungry for media attention started nailing some of these fraudulent claimants to the wall pour encourager les autres.

I agree. I also see no reason why the owner of the picture (and maybe Flickr) shouldn't sue Wasteland Inc. I just don't see how this is relevant to whether Flickr had any choice other than taking down the picture.

Re:Hiding vs. Removal

[FrangoAssado]

Look, this is silly. Take the example of what happened to Napster: in the end of their court battle, the court found that they didn't qualify for the "safe harbor" provisions of DMCA [which is exactly what would happen if Flickr decided to ignore DMCA notices]. Since they didn't qualify, the court ordered them to "monitor the activities of its network and to block access to infringing material when notified of that material's location" [which seems to be in part what you want Flickr to refuse to do]. They couldn't (or wouldn't) do that, so they had to completely shut down.

So, you can make all the analogies you want, but in the end, if Flickr (or anyone else) doesn't want to comply with DMCA notices to remove (allegedly) infringing material, eventually they will have to be completely shut down. Of course, it's not automatically "take down the picture or completely shut down" -- that would be silly. But the point stands -- without being protected by the "safe harbor" provisions and willingness to "remove infringing material when notified of the material's location", it's impossible to continue to work, as was shown in the Napster case.

Re:Hiding vs. Removal

[mattack2]

But it IS a requirement, since they don't want to be charged with (and possibly convicted of) infringing themselves.

Re:Hiding vs. Removal

[AK Marc]

The issue with Napster was that they were mostly infringing, so even if they did honor every DMCA takedown request, they'd have lost. You are agreeing with my point in the most disagreeable point possible. DMCA takedown notices were not related to the loss of "safe harbor" for Napster. And the same is true of Flickr.

Re:Hiding vs. Removal

[AK Marc]

That's like saying door locks are a requirement because if you don't have them, you'll get carjacked. It may help in that case, but not a "requirement".

Re:Hiding vs. Removal

[FrangoAssado]

The issue with Napster was that they were mostly infringing, so even if they did honor every DMCA takedown request, they'd have lost.

On the appeal of the Napster case, the Ninth Circuit ruled that "Regardless of the number of Napster's infringing versus noninfringing uses", the question could be resolved on the basis of whether "Napster knew or had reason to know of its users' infringement of plaintiffs' copyrights" (taken from Wikipedia, I'm too lazy to rummage through the ruling itself right now).

If you read the "safe harbor" provisions from the text law itself, you'll see clearly that willfully ignoring notices of infringement surely means losing protection:

Sec. 512. Limitations on liability relating to material online [DMCA Safe Harbor provisions]

[...]

• (c) Information Residing on Systems or Networks At Direction of Users. -
• • (1) In general. - A service provider shall not be liable [...] if the service provider -
  • • [...]; and
    • (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

From http://images.chillingeffects.org/512.html

I don't know what else to say. I quoted the law, previous applications of the DMCA in court, and even some FAQs from Chilling Effects, created by EFF specifically to combat copyright abuse (so, if anything else, they would support your position if it was even remotely viable).

The fact is that DMCA is a law -- arguably a bad one. The best way to change it is to understand how harmful it is, and show that to other people. Ignoring it or pretending it doesn't exist will do nothing to change the situation.

Re:Hiding vs. Removal

[LocalH]

No, Megaupload went far beyond mere deduping. Internal corporate correspondence was found showing that they willfully allowed and encouraged people to post material copyrighted by others.

Re:Hiding vs. Removal

[Jane Q. Public]

Okay, I understand the difference. But deduplication -- as I already explained -- does not address the real issue, if by "deduplication" you mean they simply remove files with identical CRCs or a similar method. Because I could put my movie in a .zip file, with a text file included, and thus the CRC would no longer be useful for that purpose.

Actual deduplication would require uncompressing compressed files and checking their contents, among other things. Doing that is both intrusive and time-consuming... and is exactly the behavior that got DropBox into trouble with its users.

Re:Hiding vs. Removal

[AK Marc]

You are saying that failing to follow safe harbor one time prevents all future safe harbor claims. I do not believe that. The law does not agree with you either.

Re:Hiding vs. Removal

[Anonymous Coward]

Is that even legal or advisable?
 
You are taking the effect, and trying to make it the cause. The problem isn't flicker; the problem is the DMCA.

Re:Hiding vs. Removal

[Johann Lau]

flickr hardly changed in any meaningful way over all those years -- and that's not because it's perfect, either -- so what makes you think they even have *any* coders left? That they don't come right out and said "sorry guys, it's just us noobs milking you noobs now", haha?

Re:Hiding vs. Removal

[FrangoAssado]

I don't know why you got that impression I implied this; I said no such thing. The point I am trying to make is that ignoring a DMCA infringement notice is a very bad idea. As I have shown, the courts and people who oppose the DMCA agree. It seems like you, on the other hand, think that everyone should simply ignore all DMCA infringement notices (your words: "If everyone who received a DMCA takedown threw it away, then copyright (And the sites involved) would be better protected than they are now."), while showing no reason why.

At this point, I have used all my arguments, and heard no arguments opposing them. I think we're both wasting our time with this discussion.

Re:Hiding vs. Removal

[AK Marc]

The point I am trying to make is that ignoring a DMCA infringement notice is a very bad idea.

Then I assert you haven't understood what I wrote.

Re:Hiding vs. Removal

[mpe]

Okay, I understand the difference. But deduplication -- as I already explained -- does not address the real issue, if by "deduplication" you mean they simply remove files with identical CRCs or a similar method. Because I could put my movie in a .zip file, with a text file included, and thus the CRC would no longer be useful for that purpose.

Also can you ensure that it is impossible two non identical files (of the same size) to have the same CRC?
It's certainly possible have the same "content" in two files which would fail any kind of mechanical equality test.

Re:Hiding vs. Removal

[Jane Q. Public]

"Also can you ensure that it is impossible two non identical files (of the same size) to have the same CRC?"

No, you cannot. CRC is not infallible. But any two files of the same size, with the same CRC, are extremely likely to be identical. I don't recall what the exact odds are, but it's something like 16^32 to 1. That's a pretty big number.

Re:Hiding vs. Removal

[Jane Q. Public]

"It's certainly possible have the same "content" in two files which would fail any kind of mechanical equality test."

Yes, that was precisely my point. You can take a movie, and a any text file, and compress them together into a .zip file. Take the same movie, and compress it with a different text file (even just a few characters different), and the .zip files will be different files according to a CRC or any other reliable, mechanical identity test.

That is why I said in order to be sure, you would have to uncompress all compressed files and actually compare the contents. Which is (a) intrusive, and (b) time-consuming.

The fact that such processing is intrusive is exactly what got DropBox in trouble with its customers, because their Terms of Service said DropBox did not have access to an actual file's content, but they were found to be deduplicating. So they were lying, because in order to do that they HAD to have access to the original files.

Re:Hiding vs. Removal

[Anonymous Coward]

Actually, Flickr could review the content themselves, determine that it does not belong to the entity which filed the DMCA takedown, and tell them to go pound sand. The risk in this is that, yes, they are abandoning "safe harbor" provisions, and they are putting their legal foot on the line for the content - if they are incorrect they may be liable for damages. However, if they're not incorrect, and the material doesn't belong to whoever filed the DMCA takedown, then Flickr is not liable for anything.

Actually

[WiglyWorm]

The DMCA does not require that Flickr take the images down. Only that they respond appropriately to the DMCA takedown notice. A perfectly reasonable response would be to pass on that notification to the user, and allow them to challenge it BEFORE you take it down.

Re:Actually

[Anonymous Coward]

You're talking about logic, which falls into the same realm as unicorns and fairies for most people...

Re:Actually

[girlintraining]

A perfectly reasonable response would be to

Do exactly what the lawyers and industry wants you to do, because you're a web-based company with a lot of competition from other competing products, run on razor-thin margins because your product offering is free and supported only by advertising, and the prospect of a multi-million dollar loss to legal fees would probably end your company, and send all those hard-working employees to the unemployment office.

Slashdot readers often fail to understand that you can be right and still lose. You can even win... and still lose. In the copyright game, if you're a small to medium-sized business the only winning move is not to play.

Re:Actually

[Cirvam]

I think having a market cap of 17.75B isn't really in the "small to medium-sized business" category. So Flickr/Yahoo could do it that way assuming their in-house counsel says that it abides by the law.

Re:Actually

[bhcompy]

Would +1 Insightful if I had points.

Also, if this isn't the definition of first world problems, I don't know what is.

Re:Actually

[QuasiSteve]

The DMCA does not require that Flickr take the images down. Only that they respond appropriately to the DMCA takedown notice. A perfectly reasonable response would be to pass on that notification to the user, and allow them to challenge it BEFORE you take it down.

Legalese is a language all of its own, but maybe an 'IAAL' can clarify...
Under USC 512 ( http://www.copyright.gov/title17/92chap5.html#512 )
Section (c) Information Residing on Systems or Networks at Direction of Users.
1c, states:

upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

(emphasis mine)

Doesn't that mean that the clause does in fact require that Flickr 'take the images down' insofar as making them inaccessible?

Re:Actually

[Brannoncyll]

A perfectly reasonable response would be to

Do exactly what the lawyers and industry wants you to do, because you're a web-based company with a lot of competition from other competing products, run on razor-thin margins because your product offering is free and supported only by advertising, and the prospect of a multi-million dollar loss to legal fees would probably end your company, and send all those hard-working employees to the unemployment office. Slashdot readers often fail to understand that you can be right and still lose. You can even win... and still lose. In the copyright game, if you're a small to medium-sized business the only winning move is not to play.

Maybe a few high profile casualties of this piece of shit legislation are necessary in order to make it clear to the lawmakers that something needs to be done. Sucks for the guys who lose their jobs, but you can't make an omelette without breaking a few eggs.

Re:Actually

[Anonymous Coward]

IAAL.

Yes, it does - at least if they want to receive the safe harbor from liability. (Which is kind of important to UGC sites.)

Re:Actually

[Anonymous Coward]

Market cap is based on expectation, not reality.

Re:Actually

[Anonymous Coward]

You're talking about logic, which falls into the same realm as unicorns and fairies for most [politicians]...

FTFY

Captcha: nymphs

Re:Actually

[girlintraining]

I think having a market cap of 17.75B

Is a meaningless indicator of how much money a company can afford to throw away on legal fees before their shareholders start asking questions like, "Where's my goddamned dividends?"

Re:Actually

[cpuffer_hammer]

Since the argument in this thread is around the question of complying by deleting the file and surrounding content, or simply making it not accessible. I would think the words:
"or disable access to"
Would to a reasonable person indicate that removing link/from the website would be sufficient, as it would be the second (2) of the three choices the law offers.
"responds expeditiously to (1) remove, or (2) disable access to, the material that is claimed to be infringing or (3) to be the subject of infringing activity." (numbers added)

While I do not speak legal, I would thing the powers that be would have used "and" instead of "or" or just removed the second option.

Re:Actually

[QuasiSteve]

I understood WiglyWorm's statement...

The DMCA does not require that Flickr take the images down.

...to also cover the "disable access to" part.

If I 'take a page down' on a website I manage, it usually means I'm just making it inaccessible. Even colloquially I'd argue this to be the case... e.g. when we say that "the website is down", we certainly don't mean that the website has been removed - just that it is inaccessible.

Maybe that's just me, though :)

Re:Actually

[Cirvam]

Yahoo doesn't pay dividends and has 14000 employees...they are't really a small startup, that's my only point about market cap. I would guess they have a legal department they could consult on this.

This is more Flickr than the DMCA

[gurps_npc]

From what I can tell it is a moronic, incompetent FLICKR programing mistake.

Don't blame the poisonous that doesn't bite you for the idiot doctor that removed the leg before checking to see if the snake actually bit you.

Re:This is more Flickr than the DMCA

[PRMan]

MegaUpload admitted that many of their "partners" had DIRECT DELETE access to MegaUpload. It sounds like Flickr may have the same arrangement, making the lawsuit for damages against the complainant even more likely to succeed.

Re:This is more Flickr than the DMCA

[LocalH]

How did you get this speculative tripe from the story at hand? The photog in question was served a DMCA complaint through Yahoo.

And this got upvoted? What the hell...

Re:This is more Flickr than the DMCA

[PhilHibbs]

If Megaupload or Flickr tell me "This is the API for issuing a DMCA takedown", and that API does an irrevocable delete, then that it is not my fault when I issue a takedown. My liability should be identical whether that API does an irrevocable delete or disables access to the image pending appeal.

Flickr's all eggs in one basket

[ackthpt]

Must have cost too much to have a coder put [Disable] somewhere, so something could be taken from public view and then reinstated as necessary.

US dmca my....

[polle404]

I'm sorry, what?
Shouldn't Flickr repost? what?
why the f... didn't they just # out the post and related data, and then re-instate it?
and why oh why does this s#it even effect anything outside the legal bounds of the US?

Re:US dmca my....

[SuricouRaven]

Because Flickr is a US company, with servers in the US, employees in the US and management in the US. If you want DMCA-proof hosting, take your image to a company based elsewhere in the world. Just make sure you don't pick anywhere else with an equivilent law.

Own your hosting

[metrometro]

Screw the cloud. They have their goals, you have yours. Hosting photos isn't that hard. Posting comments isn't that hard. We can figure this out. But as long as we use these for-profit, economies-of-scale cloud intermediaries, there's not going to be the resilience, freedom or security that you get with an open source, user owned, user operated platform.

WordPress works. EtherPad works. We can't do spreadsheets. We can't do video (easily). We can sometimes do community (Diaspora, Appleseed, etc; status updates; BuddyPress).

Get hacking.

Re:Own your hosting

[byolinux]

GNU is working on a project to replace Flickr and such sites.

http://mediagoblin.org/

Re:Own your hosting

[c0d3g33k]

And all of these "alternatives" you mention are hosted where? Unless you are the owner of the network cables, someone stands between you and the internet, whether you're using a "cloud service" or "cloud hosting provider" or "cloud accessible colocated server", or even "business-level internet access" from your local provider. Even the latter can block access to your IP if they decide to honor a DMCA request (or they suspect you violate their terms of service). As long as you have to rely on the good graces of someone else, you're vulnerable. Some less vulnerable than others, I'll grant you, but still vulnerable. And if you have the wherewhithall to have completely independent internet access, you can probably just be sued directly, because you'll be a big enough target to make it worthwhile.

It seems to me the future lies in smarter and less "public" uses of the internet, where the folks likely to post a takedown never see your stuff, because you're sharing with a much smaller and more exclusive audience. I guess that's in part what the darknet is all about. The internet is still pretty darned useful without relying on all the privacy stealing public services that masquerade as a service but are really meant to serve you up as the product. That's possibly what you were advocating.

The alternative is to fully embrace the concept of the cloud for things you want to make public - just throw it out there and make sure it gets dispersed as far and wide as possible into the cloud of information. You'll relinquish all control (can't get it back once it's out there), but it will be hard to take down.

Re:Own your hosting

[Jane Q. Public]

And we can do perfectly good spreadsheets too. Libre Office (a fork of Open Office) does perfectly good, open-souce and open-format spreadsheets. That's not online, of course, but it is possible to do online spreadsheets also, using open-souce code, too, involving "edit-in-place" routines using tables to represent the spreadsheet.

Online, open-source spreadsheets are not an easy thing to implement, which is why they are generally limited to single-purpose tables rather than generic spreadsheets. But they are possible.

Re:Own your hosting

[Anonymous Coward]

I am pretty sure we have had photo hosting software for quite a while: http://gallery.menalto.com/

Re:Own your hosting

[Anonymous Coward]

We do HTML5 video just fine, and we (programmers) don't "do spreadsheets" at work as we usually recognized a table-like tool designed exactly for a specific purpose is preferred in most business cases including medium-sized businesses. I wrote an arrow-navigated input-field grid "spread sheet" for a special case. It was easy in 2002 and much easier now that it's a fancy DOJO grid object.

Re:Own your hosting

[metrometro]

Yeah, I was talking about Web applications. I want an online spreadsheet that doesn't start with G. But point taken.

Re:Own your hosting

[Jane Q. Public]

If somebody came up with a good drop-in spreadsheet for, say, Ruby/Rails, they could make a fortune.

problems of posting on sites other than your own

[k6mfw]

Yes, Flickr is convenient but posting your images on sites you do not own... well they can remove them. Or worse are sites, I think picasaweb, have fine print that says images posted become "property" of them and not you. I forgot specifically which photosharing site but a pro photog says he rarely posts his work on such sites except his own domain because fine print says person given up ownership.

Though Flickr provides means for people to post comments which can be great fun when you have something that resonates with the public, but don't want to spend time moderating every comment. Sure is terrible Gorman lost all those comments, there must have been some real doozies of sorts posted.

Seems to me...

[roc97007]

...this (accusing DMCA, get someone's content temporarily removed, then oh sorry, mistake, reinstated with all links broken and comments gone) could be used as a weapon. Especially with an election coming up.

Re:Seems to me...

[Anonymous Coward]

This post reminds me of an exchange on Futurama:

Dr. Zoidberg: Strange. Why would Nixon, an awkward, uncomfortable man, suddenly throw a party, one of the most social events imaginable? Is a trap, is why! They're going to deactivate all the robots!
[pause]
Dr. Zoidberg: I don't hear any gasping.
Leela: We all figured that out.
Dr. Zoidberg: Aw.

Um.....

[ThisIsNotMyHandel]

Not sure why you wouldn't just flag the picture as "deleted" in the database like every other social networking site.

Re:Um.....

[bhcompy]

Maybe they actually take "delete" requests seriously and permanently remove the data, unlike every other social networking site that continues to possess, mine, and sell your data after you've "deleted" it.

Re:Um.....

[Xeno man]

The question is does flagging a file "deleted" satisfy the legal requirements of a DMCA notice. If it does, then why didn't Flicker implement this method. If is does not, how does the law expect files to be restored when a DMCA notice is challenged?

Basically this is just another example of why DMCA is such crappy legislation and why we don't need more like SOPA.

This is the problem with DMCA take downs.

[GmExtremacy]

This is the problem with DMCA take downs. They force websites to take down the material even if it isn't certain that it is infringing. Websites don't have the resources to police the content, so sometimes they even have to resort to faulty automated systems (Youtube) that generate false-positives, or (even worse) give copyright holders the power to remove content (which will, again, be abused).

All this does is hurt the little guy. It's guilty until proven innocent, and if you don't have the resources to fight them, you're doomed.

Re:This is the problem with DMCA take downs.

[GmExtremacy]

Or, more precisely, that's how it works out when applied to the real world. Everyone is paranoia about copyright infringement and no one wants to be held responsible (even if the content isn't permanently deleted).

facebook

[Spaham]

This is what would happen everyday if facebook *did* really erase pictures that people delete.
But I agree, they should at least keep it *some* time.

Re:facebook

[SuricouRaven]

Facebook? Delete? Hah. Not likely. Facebook may remove images and comments from public view, but I am sure they keep them internally for analytics and advertising purposes.

So If someone takes a picture...

[redkcir]

Wasteland sells used clothes. They take pictures of models in those clothes. Those clothes are the creation of someone else. Did they get permission to upload and use someone else's work (the clothes) before doing so? Questions, questions, questions.

Re:So If someone takes a picture...

[Purity Of Essence]

Fashion doesn't have IP protection. You should have used a car analogy.

Re:So If someone takes a picture...

[The Archon V2.0]

Parent:

Wasteland sells used clothes.

Summary:

The takedown was in error (from a porn company)

The clothes probably aren't that used at all. But I suppose that depends on one's point of view: I think of gimp masks and strapons as wearable equipment rather than clothes, and I imagine those are well used.

(Someone shoulda read TFA a little closer. ;)

Re:So If someone takes a picture...

[redkcir]

Fashion wasn't the issue, pictures were. Question remains, at what point does a picture end it's copy-write life?

Alternately

[Anonymous Coward]

Even when you own the ip rights in question, doesn't contesting the DMCA claim immediately cause you to be susceptible to lawsuit? If true, that's a worrying chilling effect. Litigious corporation X can slap you with a DMCA on your own content, wait for you to contest it, bury you in court fees, and then win ownership of your property when you can't afford to continue defending yourself. That's my understanding of it.

The Real Point

[MLCT]

The real point of this story is not some minutiae of how flickr's back-end is organised wrt take-down notices.

The real point is that this image only went back because it was Dave Gorman - who is a pretty well known person (in the UK at least). These take-downs occur all the time aimed at "normal" people, who have no profile, and thus their protests are ignored. I hope Dave realises this and works out that he should be championing the little guy (which he generally is good at doing).

Re:The Real Point

[SuricouRaven]

I've been hit by two takedowns and a false positive on contentID myself. One was actually a legitimate takedown (I used an old Disney cartoon to demonstrate some video filters I wrote), one was infringing but also a perfect textbook example of fair use (40 seconds from a 25-minute program with altered audio for purposes of noncommercial parody), and the contentID was a pure error (The 'offending' audio was so old it couldn't possibly have been copyrighted even in the US - about as old as you can get, with audio recording invented not that long before).

On the latter two I did appeal, but youtube never responded at all. Neither in the positive nor the negative - my complaint was simply ignored. So I closed my account in protest, and relocated my videos (Minus the infringing Disney cartoon) on a host I now rent. Where they shall forever languish in obscurity, because whenever people want to find video they go first to youtube now.

Re:The Real Point

[nedlohs]

Do you have any evidence for that at all?

I would suspect they don't know or care who he was and just followed the process.

1. Get a DMCA takedown notice, so remove access to the content and notify the account holder.
2. If the account holder responds with a counter notice then forward that to the party who sent the takedown notice.
3. If after 14 days they have not responded then allow then restore the content.

it's a pretty simple process (though there are branches for if they do respond and so on).

What they've done is implemented "removing access to the content" with "delete the content" and "restore the content" with "allow the user to reupload it". Which is retarded but certainly not specific to this one user.

Re:The Real Point

[MLCT]

I can't speak specifically on flickr (any more than you can), but there have been many many many examples of takedowns being erroneously applied and appeals ignored (see post above yours). Not only erroneous, but downright fraudulent in some cases.

So given those facts, one is led to the conclusion that this case is different due to the person who has been slapped with the notice - and his penchant for turning personal experiences (especially in the digital arena) into award winning shows and films - then it wouldn't surprise me in the slightest if his name would carry more weight, lest he decide to turn some dcma hell into a film or book.

Re:The Real Point

[Anonymous Coward]

I don't believe for one minute that my day job influenced the decision. For a start, I think it's highly unlikely that the person reading my counter-claim knew for a moment who I am or what I do for a living.
More to the point, while I'm critical of flickr's handling of DMCAs (in that I think they should replace the image not nuke it) they do follow their procedure to the letter.
1: They receive a DMCA -> they delete the image & send a boilerplate email informing the user.
2: They receive a counterclaim -> they send another boilerplate email.
3: Nothing happens & the 14 days pass -> they send another boilerplat e telling the user they can repost it.

There's no way they don't respond to counterclaims.

However, whether by negligence or design, they don't do much to help inform their users that counter claims *can* be filed. The initial email telling you that the picture is gone doesn't offer any advice on what to do if you think it's unfounded. If you reply asking what you can do about it they take days to get back to you. (Their customer services have been shot to pieces lately (blame Yahoo)).

If your counter claim doesn't contain the "under threat of perjury" and "I submit to your jurisdiction" clauses, the right contact details etc etc it's not counted as a proper counterclaim and the clock doesn't start ticking on the 14 days required. Yahoo! could be way more helpful on explaining that to people. They're not. As a result I think a lot of people get angry and bluster and rage about the fact that they complained and didn't get their image back. The reason they get nowhere is that they didn't cross the Ts and dot the Is that would have made Yahoo! obliged to respond. But those that do, get results, whatever their job. Just not the result I think they should get: like having the image back in its original url with comments/history etc restored.

Their last email to me was on March 2. It's the email that told me I could repost the photo. It ended with the words, "Please contact us if you have any questions or we can further assist you in this matter."
I wrote back saying that I'd like to see a copy of the original notice filed against me and would like to have the contact details for the person responsible. They haven't replied. So much for my cache.

Re:The Real Point

[DaveGorman]

I really don't believe this to be the case. The chances that the Yahoo! copyright agent who read my counterclaim knew about my day job are slim at best. Just as Flickr/Yahoo! respond the same way to every DMCA takedown they receive, I'm sure they respond to every counter claim the same way too. I've been around the site - and its forums long enough to know that this is the case. Where they fall down - one of the many places they fall down - is in not providing their user with information. The email telling you your content's been deleted assumes you're guilty. It wouldn't hurt for them to have a paragraph in it saying, "If you think this notice has been sent in error, please visit http://info.yahoo.com/legal/us/yahoo/copyright/en-us/ rto find out how you can file a counter claim." They don't. And their customer service response time is now dreadful (well done Yahoo - http://nolancaudill.com/2012/01/30/the-front-line/ ) So I think some people write back to flickr full of rage, saying that they do own the copyright _actually_ and how dare they delete it and nobody writes back explaining how to file a DMCA counter claim and so they give up fighting and blame flickr (rightly) for ignoring them. But if you file a proper counter claim they respond as officiously as they do to the initial claim. They pass it on to the claimant and start the clock ticking on your 14 days. They don't ignore a proper counter claim, they're just not very helpful at guiding you to file one. Throughout all of this my views on Degban haven't changed much. Whether they're telling the truth or not about being hacked they're bad. Either they filed a ridiculous DMCA or they didn't protect themselves well enough to prevent someone else from doing so. Either way is bad. And their reaction since has been childish. But my views on flickr have changed. And in part down to information I've gleaned here. I think their way of dealing with takedowns is unnecessarily heavy handed and that in deleting the content rather than hiding it for the duration of the claim/counterclaim process, they actually fail to abide by the terms of the DMCA. Their reaction to this is sluggish. When I received the email telling me I could repost the image it ended with the words "Please contact us if you have any questions or we can further assist you in this matter." I replied asking them for the full contact details of the agent who had filed the claim, advice on what, if anything I could do about it. I asked them if they could tell me how many other takedowns they'd received from Degban and I asked for an explanation as to why they couldn't replace all the content they'd removed. Their reply came 5 days later. On the contact details, they provided an email address. But the rest of my questions were ignored. "We trust that this answers your concerns," they said, knowing full well that it didn't. So much for cache. I don't expect flickr to be able to resolve my particular case properly. I think they probably _can_ put the content back in the original URL but I'm not really expecting them to do so. But I intend to stay on this with them in the hope that they change the way they deal with DMCAs in the future. I understand the need for copyright enforcement, but when someone gets it wrong, they have to give themselves the chance to put things right... and right now they don't do that.

Flickr needed to remove....

[deciduousness]

Why did Flickr need to remove it again? I think due process should apply to this along with everything else. This whole idea that we can destroy data first, then figure out if the person is in the wrong seems to be one of the main issues with current tactics and future legislation that is trying to be pushed through.

So can you actually make money by posting photos

[Anonymous Coward]

to Flickr?

Re:problems of posting on sites other than your ow

[c0d3g33k]

Sites you "own" can be taken down too, if you've been paying attention to the news lately.

Re:problems of posting on sites other than your ow

[icebike]

Or worse are sites, I think picasaweb, have fine print that says images posted become "property" of them and not you.

No Picasaweb explicitly states that you continue to own pictures you put on Picasaweb. And you can remove them, and mark them private.
Google's pretty good about following that policy.

If you mark it as public, or submit it for inclusion in Google Earth or Images for Google Maps, they reserve the right to use those even after you delete them from your picasaweb account. You submitted them explicitly for that purpose.

Your Content in our Services

Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.

Specifically, Picasaweb allows you three choices of privacy: Public on the web, Anyone with a link, Private.

Re:problems of posting on sites other than your ow

[muridae]

Or worse are sites, I think picasaweb, have fine print that says images posted become "property" of them and not you. I forgot specifically which photosharing site

You mean Flickr. Picasa's terms were, when I read them, that you gave them a revocable license to the image for the sole purpose of displaying the image in the manner that you choose. They had been different at a much earlier state, but the terms were changed when people spoke up. Flickr's terms were "irrevocable, world-wide, perpetual, sub-license-able" license meaning they could redistribute the file to anyone under any terms they choose, completely ignoring what terms you choose to distribute the photo under. They couldn't claim to be the owner of the copyright, but they could sell the picture without recompense.

Maybe that's the future definition of a professional vs amateur photographer: pros either understand the law enough to not get bitten by crap like this or have a lawyer to help them, while amateurs complain about laws they don't understand and don't want to deal with.

Gorman should sue for infringement

[kawabago]

The porn company infringed his copyright and now he cannot be made whole again. The posts and discussion are gone and links around the world are broken. He deserves $200,000 in statutory damages from the porn company. That should reduce these false take downs.

Re:Gorman should sue for infringement

[ExecutorElassus]

That didn't work out very well for MegaUpload, did it?

I'm not very optimistic about the present copyright clusterfuck being resolved without Cory Doctorow's war on general computation coming to pass. Big Media has too much money, too many hands on too many politicians' strings, too much power.

The only reasonable response I can think up is civil disobedience, which conveniently for me would involve copious downloading of unlicenced content until my eyes bleed. Huzzah!

False premise:

[fyngyrz]

Sure, Flickr needed to remove the image

No. They didn't. They could easily have asked the account holder about the image before completely fucking up.

Re:False premise:

[nahdude812]

DMCA takedown requests are a shoot-first, and bandage-the-wound later kind of mentality. If they get a DMCA takedown request, they need to take the image down then give the owner a chance to reinstate the image.

Flicker apparently sucks at the reinstate aspect of things since their solution to reinstating is to re-upload under separate cover, which as observed is not the same thing as actually reinstating.

They were obligated by law to remove the image. Asking the uploader first would have put them at jeopardy of losing safe harbor protections allowed for in the DMCA. I.E. they could then have been sued.

Re:False premise:

[gstoddart]

They were obligated by law to remove the image. Asking the uploader first would have put them at jeopardy of losing safe harbor protections allowed for in the DMCA. I.E. they could then have been sued.

Which is why the DMCA is fundamentally flawed ... it requires no proof, merely an assertion on official sounding letter head.

It gives far too much power to the people claiming to be the rights holders, and has little or no controls to make sure the process isn't abused.

It's a classic example of idiot lawmakers who don't really understand the technology they're passing laws about.

Re:False premise:

[nahdude812]

I don't disagree.

No

[pubwvj]

No, Flickr did NOT need to take down the image. When they receive the take down notice they then need to present that to him and get his response. If he says it is his original artwork then they go back to the person sending the take down notice and give that response to them.

Re:No

[afabbro]

Well, since you USED ALL CAPS, you must be right.

That's the end of Flickr

[Anonymous Coward]

In order to maintain URLs for images subject to takedown, they'll have to make a code change. Since they're now owned by Yahoo, there's a significant chance that a Yahoo coder will be making the change. Within a month Flickr will start to have increasing "server errors", they will begin adding JSON elements to the layouts for no good reason, it will only work half the time, they will lose customers, and eventually be shut down.

So long Flickr, it was good to know you.

Only half joking here. One of the marvels of Flickr is that they didn't get destroyed by the acquisition. There must be somebody at Yahoo that was smart enough to realize they had to take a "hands off" approach to that acquisition. I just hope they can keep those hands off...

Why are you asking us?

[Restil]

Shouldn't you be asking Flickr? Yes, there SHOULD be a way to restore it, assuming Flickr designed their system to account for that possibility. Of course, if the company policy when responding to DMCA requests is to simply delete the image and all associated references (including comments), then that is their policy and something you may wish to consider when posting something there in the first place. If anything, this should entice hosting companies to amend their user policy to include what happens in situations like this. Add a few more lines to a very long document that nobody ever reads anyway. Ultimately, if you want control over content you think belongs to you, then you need to host it yourself and not rely on other sites to do it for you.

-Restil

Re:Why are you asking us?

[mysidia]

Shouldn't you be asking Flickr?

Flickr is a yahoo property. If they're anything like Google, they are "too big" to talk to us peons who just utilize their free services.

And i'm sure the flickr EULA contains enough cya that they won't be concerned about being sued by the user of their free service; ok, maybe you get a refund of the $0.

Perjury?

[pluther]

Doesn't the DMCA takedown request state somewhere something about asserting the statement is true "under the penalties of perjury"?

Whatever happened to that?

Has that ever been enforced?

Re:Perjury?

[mysidia]

Doesn't the DMCA takedown request state somewhere something about asserting the statement is true "under the penalties of perjury"?

The penalty of perjury doesn't apply to a DMCA takedown notice, unless the complaining party is not authorized to act by the copyright owner of a work alleged to be infringed; the " has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner" in (v) does not apply a penalty of perjury.
Interestengly: the penalty of perjury does apply to a good faith belief that it is true, for DMCA counternotice --- "(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. "

Only a portion of the statement is under a penalty of perjury: a statement that the complaining party is authorized to act on the behalf of the copyright owner of a work alleged to be infringed

The requirements for a DMCA takedown are:

• Name, address, electronic signature of the party making complaint
• The infringing materials and their exact internet location; for a letter sent regarding an "information location tool", the reference or link to the infringing materials.
• All information necessary to identify the specific copyrighted work(s)
• A statement by the copyright owner that he/she has a good faith belief there is no legal basis for the use of the materials found at the internet location
• "(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."

Re:Perjury?

[Anonymous Coward]

Does the perjury penalty apply if the company was only authorized to act in certain places?

According to the guys blog (http://gormano.blogspot.com.au/2012/03/if-this-picture-looks-bit-familiar-it.html) the CEO of Wasteland, Inc (alleged copyright holder by Degban [company supposedly acting on their behalf]) has said:

"One of my colleagues sent me the link to this post as a heads up and I am pretty baffled by the entire thing. We do have Degban handle our DMCAs, but only for torrents and fileshare sites, and on those only videos with a duration of longer than 5 minutes. They do a very good job on this for a very very reasonable monthly fee, so all of this pretty much comes out of the blue at me.

Something seems to have gone terribly wrong somewhere as we don't touch the tubes (we have lots of affiliates uploading our clips to those) and certainly not photos on blogs or Flickr featuring artistic photography (yours is very nice, btw, Dave!)."

Would that imply unauthorized action and open them up for the perjury penalty?

Re:Perjury?

[Anonymous Coward]

The penalty of perjury doesn't apply to a DMCA takedown notice, unless the complaining party is not authorized to act by the copyright owner of a work alleged to be infringed

Ah, but isn't that one of the points of the case? The copyright holder, after all, is neither Dogba nor the porn company, and as such, Dogba claiming they are "authorized to act on behalf of the owner" is patently false...

Re:Perjury?

[alexo]

Doesn't the DMCA takedown request state somewhere something about asserting the statement is true "under the penalties of perjury"?

Whatever happened to that?

The part in a DMCA claim that is "under the penalty of perjury" is that you are authorized to act on behalf of copyright owner of the work allegedly infringed on.

For example, if you post a recording of your cat vomiting and I submit a DMCA claim on behalf of Justin Beiber, claiming infringement, I will run afoul of that provision.
However, if I submit a claim on behalf of my third cousin twice removed, claiming that you infringed on his "sonata for bag-pipes and an two enemas in D major", I am legally in the clear as long as he authorized me to act on his behalf even if I know that the works have absolutely nothing in common.

As far as I know, there is no penalty for false, or even malicious, DMCA claims.

Megaupload

[Anonymous Coward]

"Sure, Flickr needed to remove the image, but shouldn't there be a way to reinstate it while keeping all the original comments and links?""

After what happened to Megaupload?

sue.

[Anonymous Coward]

sue sue sue.

File a suit

[Anonymous Coward]

File suit against THEM for infringing on YOUR copyrights.

Read the indictment

[Anonymous Coward]

You should read the indictment.

"If I take a picture and upload it to e.g. Flickr, and then someone else downloads it from my profile and uploads to his, that copy is infringing and mine isn't, even though it's the same file."

If I take Harry Potter and the Chamber of Secrets movie from your profile and upload it my own, and Warner Bros file a DMCA take down demanding all copies of "Harry Potter and the Chamber of Secrets" be taken down, and MU instead takes down only the single link used to identify it. What then?

But seriously, it's far far worse than that, read the indictment, they confessed repeatedly in emails, they created fake accounts to keep links active, they rewarded people with money for uploading files they knew were copyrighted, they discussed concealing the fake DMCA take down procedure details etc. They did the arch villain thing of confessing.

Re:Read the indictment

[maroberts]

The DMCA procedure probably has some flaws in the area indicated.

For example,
Demanding all copies of a file called "Harry Potter and the Chamber of Secrets" be taken down would not be specific enough. I was writing an article on that subject, I would hate to lose that file. A non-infringing file could even be a video, there would be Fair Use provisions for use of excerpts from the movie, a parody of the movie or even the entire movie if say I worked at Warner Bros and used MegaUpload for my own personal locker. (whether I would get the sack for having this in my locker and making it public is another matter).

Re:problems of posting on sites other than your ow

[Anonymous Coward]

From: http://www.google.com/intl/en/policies/terms/

Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.

You can find more information about how Google uses and stores content in the privacy policy or additional terms for particular Services. If you submit feedback or suggestions about our Services, we may use your feedback or suggestions without obligation to you.

Sue the Pr0n peeps & flickr....

[Anonymous Coward]

I say SUE the BASTARDS! Sue them all to the stone age!