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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.
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.
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!
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.
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.
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.
excitingthingstodo.blogspot.com
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.
This is a boring sig
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...
"Little does he know, but there is no 'I' in 'Idiot'!"
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.
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?
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some sort of not shown due to DMCA status
Funny, that's what MegaUpload did. And look what happened to them...
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.
Just because it CAN be done, doesn't mean it should!
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.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
'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...
People in cars cause accidents....accidents in cars cause people
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...
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.
Sig Battery depleted. Reverting to safe mode.
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.
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.
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.
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.
"The question is quantifying them. "
100 billion US dollars should work, the RIAA and MPAA can claim such absurd numbers, why cant this guy?
Do not look at laser with remaining good eye.
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.
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.
No. They didn't. They could easily have asked the account holder about the image before completely fucking up.
I've fallen off your lawn, and I can't get up.
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.
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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.
Sig Battery depleted. Reverting to safe mode.
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.
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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.
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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.
(Removal) != (deletion + loss + additional unnecessary harm)
I've fallen off your lawn, and I can't get up.
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
Play with my webcams and lights here
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.
Whatever happened to that?
Has that ever been enforced?
If the masses can keep you down, you're not the Ubermensch.
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.
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
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.
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?
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.