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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?"
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.
HBI's Law: Frequency of calling others Nazis is directly correlated with the likelihood of the accuser being Communist.
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.
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?
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
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.
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.