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

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.

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: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: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: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: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.

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: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

[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.