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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.
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
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!
'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
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.
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.
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.
Moved to http://soylentnews.org/. You are invited to join us too!
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.
Bio questions? Ask me to start a Q&A journal. Computer analogies available for most topics!
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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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.
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