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Sony Sends DMCA Notices Against Users Spreading Leaked Emails
Dangerous_Minds writes Last week, Sony threatened legal action against users spreading information obtained through the e-mails that were leaked as a result of the Sony hack. Sony has begun carrying through with those threats. Twitter, after resisting demands that a user account be suspended for publishing leaked e-mails, has received a DMCA notice saying that the e-mails are, weirdly enough, copyrighted.
Let me startbby saying, "rootkit" Sony sucks. With that out of the way:
The emails mentioned in TFA appear to be business emails from Sony people. Did they send a DMCA notice about any personal emails? Did I miss that somewhere?
Regarding perjury, the DMCA doesn't say that any erroneous or improper notice is perjury. The perjury clause refers to identifying yourself. If I were to send a DMCA notice about content owned by Dice, claiming to be a representative of Dice, that claim that I am Dice's representative would be under penalty of perjury. I'd be in trouble because I'm not actually a representative of Dice.
Any other deficiency in a DMCA notice is likely to be grounds for a civil suit, only, based on damages. It might be tortiuous interference, for example. It wouldn't be perjury.
There is a difference between reporting, and wholesale redistribution. Reporting is fair use, but that's not happening (much). Wholesale redistribution is certainly not fair use, and Sony can indeed claim such redistribution violates copyright.
Now the interesting thing is going to be (if this ever gets challenged in court): who owns the copyright over those e-mails? Is it Sony as employer, or are it the individual authors of those e-mails? The received e-mails are certainly not copyright Sony, the copyright on those is owned by those who sent them to Sony employees.
In principle, everything falls under copyright. Even these comments. However by posting it on a public board, we implicitly give Slashdot permission to redistribute it. An e-mail I send to the feedback section of a newspaper also comes with the implicit permission to print and redistribute it in the newspaper. An e-mail one sends to Sony or someone else, however, does normally not have such a permission - it's hard to argue implicit permission to redistribute. This sidestepping the obvious privacy related to e-mail, which is generally meant to be read by the recipient(s) only.
however, in order to protect said automatic copyright, and have legal standing to win a lawsuit for instance, in the u.s. works must be registered with the trademark and copyright office. this, of course, was not done with the emails. this can be considered dissemination of proprietary and confidential corporate property and trade secrets, which should have at least as strong of a case for sony.. just not via dmca.
Very incorrect, on two counts:
(1) Copyright registration is merely a verifiable record of the date and content, in case of some future claim of plagarism or Copyright infringement by another party. Registration is only required on claims of statutory damages for an infringement suit, and that's valid as long as it occurs within 3 months of publication. For that to be useful to Sony, however, they would have to also establish value for the Copyright work. Since they were able to do this for the "Spectre" script, Twitter took the excerpts down. Email is a different matter.
(2) AT&T USL attempted to pull the "Trade Secret" trick of having their cake and eating it to in the AT&T USL v. The Regents of the University of California at Berkeley. The problem with Trade Secret disclosure is once a secret is disclosed, it's no longer secret. You can Patent something (requires disclosure) or you can Copyright something (also requires disclosure). In exchange for that disclosure, you are then granted certain legal protections, but those protections do not attach to Trade Secrets. For a Trade Secret, in order to collect damages, you, again, have to establish a value for the Secret. But - and this is a big one - you can only collect those damages against the original discloser - you are not permitted to seek out deep pockets. So Sony can take it up with North Korea (or whoever we've decided was responsible this week), but they can't take it up with this Twitter user, unless they can prove he was the disclosing party. So again: any trade secrets in to emails is *gone*.
The other problem is the use of the DMCA in this case: unless you are the Copyright holder, or you are a designated agent acting on behalf of the Copyright holder, you do not have standing, under the law, to assert a DMCA claim on behalf of someone else. This was the problem that a number of the DMCA takedown companies had with their third party takedown notices. This was actually precisely what occurred in the Righthaven v. Wayne Hoehn case.
You've got the wrong handle on DMCA...
1. It criminalizes the creation of software designed to circumvent copyright. That's not happening here.
2. It grants"safe harbor" to ISPs and companies against violations*BY THEIR USERS* so long as the company has a takedown & dispute resolution mechanism. In this case Sony claims copyright, and Twitter can absolve itself of responsibility by leaving the user in question to be the one to file a counterclaim (presumably on fair-use grounds)
Everything you create is copyrighted automatically; unless you create it as part of your job, in which case it's owned by whoever paid you.
Not in my country it's not. You have to register it first otherwise it isn't copyrighted.
If your country is a signatory to the Berne Convention, and it probably is (https://en.wikipedia.org/wiki/List_of_parties_to_international_copyright_treaties) you're wrong. Copyright is automatic upon creation of a work. This post I'm writing, right now, is automatically copyright... the TOS I agree to by posting it here allows[1] Slashdot to present it, archive it, etc. But you're not allowed to distribute it without my consent, except as per fair use and other exemptions, not that I actually give a damn or would even know about it, mind you.
[1]Is it 'allows' or 'allow'? If I read the sentence and think of 'TOS' as a word, 'allows' sounds right. But if I read the sentence and mentally expand TOS to 'Terms Of Service', 'allow' sounds right.