Anti-Piracy Firm Sends Out Wave of Takedown Notices For Using the Word 'Pixels'

An anonymous reader writes: Columbia Pictures recently released a movie called Pixels to widespread ambivalence. As part of the movie industry's standard intellectual property defense strategy, it hired anti-piracy firm Entura International to try to police infringing downloads. The firm went at the task with vigor, hitting Vimeo with DMCA takedown notices for anything with the word "Pixels" in it. As you might expect, this disrupted a number of independent filmmakers and organizations who did nothing wrong, and in most cases picked a name for their video long before the new movie came out. Even worse, it's incumbent upon the owners of the targeted videos to prove that their content does not infringe upon Columbia's. Even if they get it restored, simply being targeted counts against them in Vimeo's eyes. And of course, Entura is unwilling to help.

Comments

Seems simple enough to reverse this strategy

[Anonymous Coward]

I suggest a DMCA takedown notice against Columbia pictures filed by anyone using the name previously. Or must one be rich to use government enforcement agencies as one's lapdog?

Re:Seems simple enough to reverse this strategy

[Opportunist]

You have to be a corporation or at least something else that we may reasonably expect a campaign contribution from. Where have you been that you don't know that?

Re:Seems simple enough to reverse this strategy

[Anonymous Coward]

DMCA takedown won't cut it. Instead, go on the offensive and accuse Columbia Pictures for standard copyright violation.

https://www.law.cornell.edu/us...

Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual artâ"
(1) shall have the rightâ"
(A) to claim authorship of that work,

While these aren't necessarily exclusive rights, I'm pretty sure it's meant to prevent plagiarism by someone putting their name on someone else's work. I'd love to see this tested on someone who makes false takedown claims.

Re:Seems simple enough to reverse this strategy

[Anonymous Coward]

Better yet, jail time for Columbia pictures employees and their agents. You must sign under penalty of perjury that you know the infringement to be true. Time to get them in jail where they belong.

Re:Seems simple enough to reverse this strategy

[grahammm]

Columbia claim that the works for which they send takedown notices violate the copyright in their new movie. As the works concerned were created and put online before the movie was created, then one of two things can be true. 1) The works do not violate the claimed copyright, or 2) If copyright has been violated, then it is the Columbia movie which violates the copyrights in the earlier work(s). In either case the takedown notices are invalid and abuse of process.

Re:Seems simple enough to reverse this strategy

[Anne Thwacks]

Please see a doctor. Even with ear plugs, you ought to hear that wooshing sound.

Re:Seems simple enough to reverse this strategy

[cpt kangarooski]

Sorry, but that won't work.

You're citing 17 USC 106A. That only applies to the author of "a work of visual art." That term is specially defined in the Copyright Act, in the definitions section at 17 USC 101. The relevant parts of the definition are:

A "work of visual art" is--

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

It really isn't possible for anything online to qualify, due to the requirement of there being only a single copy (a copy is defined in the Copyright Act as being a tangible object containing the work; a computer file isn't a copy, but a hard drive can be, which means that if other people can download it, they're necessarily making a new copy), or no more than 200 copies if each copy is signed and numbered and which are a limited edition.

What this is actually meant for is fine art, like a painting, art prints, etc. Not art posted online. It was a nice try, but you've got to check the statute more thoroughly if you want to cite it correctly.

Re:Seems simple enough to reverse this strategy

[Anonymous Brave Guy]

We would like to make clear on behalf of our client, Anonymous Coward, that the mistranscription of "Colombia" as "Columbia" was purely an inadvertent administrative error, which was subsequently acted upon by computer without further human interaction. Therefore as Anonymous Coward is in fact the copyright holder of the work "first ten word draft of script for documentary 'Colombia'", the perjury penalties under the DMCA do not apply. Have a nice day.

With best regards,
The Lawyers

Let's hope

[Anonymous Coward]

The The don't hire the same outfit...

Standard shite

[wbr1]

When are we collectively going to stand up and say that the real pirates are the ones who steal our culture from us piece by piece? People who then have the audacity to push out drivel like 'pixels' and call it culture?

Re:Standard shite

[MightyMartian]

In some cases that may be true, but in most cases even modern stories are heavily derivative, invoking cultural motifs that go back millennia. That's not to say the works aren't creative, perhaps artistic, and that some level of protection is merited. But when you have commercial interests just making blanket legal demands to remove any video or film with the word "pixel" in the title, you very much have large corporate interests attempting to co-opt, or to put it more bluntly, steal surrounding cultural creations.

In this case, it appears that yet another legal firm is using the the DMCA and online content providers' flawed approach to copyright enforcement in an overly-broad fashion. There should be mechanisms in place to punish Entura for this, because essentially they are committing an act of fraud, and doing exactly what they're claiming the innocent non-copy right violating content producers who happen to use the word "pixels" in a title are doing; namely asserting unlawful ownership.

DMCA reform

[Lord Bitman]

I don't like most of the DMCA in principle, but I expect I wouldn't even care about it, if it just had some clear built-in penalty for making a false claim (eg: 200% of the maximum damages were the claim valid)

Re:DMCA reform

[SuricouRaven]

It does, but it only applies if the false claim is false in the sense that it wasn't filed by the copyright holder or someone they appointed to represent them. There is no penalty for a claim made in error, so long as it was authorized by the copyright holder of the allegedly infringed work.

Re:DMCA reform

[Khyber]

"It does, but it only applies if the false claim is false in the sense that it wasn't filed by the copyright holder or someone they appointed to represent them."

Incorrect. You must sign under penalty of perjury that ALL CLAIMS MADE are accurate and made in good faith.

I file DMCAs quite often, so I know the whole rote already.

The claim made by the corporate representative is neither made in good faith (likely done automated) nor accurate.

Re:DMCA reform

[SuricouRaven]

From section three:

---
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

'(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
---

The perjury part applies only to (vi) - that the complaining party is authorized to act on behalf of the copyright holder and that the contents of the claim are accurate. The actual infringement needs only a good faith belief. It's arguable if an automated enforcement system can really be called that, as the use of fully automated takedown bots was not envisioned when the legislation was created, but I have never heard of any prosecution for that, and I can't find any with a bit of googling

The DMCA makes it clearly illegal to knowingly submit a false DMCA claim, but there is no offense committed for submitting false complaints due to incompetence, haste or cost-cutting. This is not just my own uneducated reading: It's the defense used by some major copyright holders who have committed exactly the same overzealous errors in the past: https://torrentfreak.com/warne...
The judge in that case never decided if that defense was valid, as the parties reached a settlement.

Re:DMCA reform

[TheReaperD]

Apparently, part of the problem is that Vimeo has a DMCA copyright 'strikes' system where a certain number of 'strikes' gets your account deleted and you're banned from the site. It seems that the main issue here, other than the hassle of filing a DMCA counter-claim, is that when you get the DMCA claim pulled, Vimeo will put your video back on their site but, they do not remove the 'strike' from your record. The short version is that if you get enough bogus DMCA claims against your account they will delete your account and ban you from their service even though you did nothing wrong beyond happening to name something you created too close to a name a major studio chooses to use in the future.

Re:DMCA reform

[ACDChook]

Then I think the correct procedure now would be for everyone to file DMCA claims against the Vimeo accounts of the movie studios. Get their accounts deleted and banned for a change.

Re:DMCA reform

[Anonymous Brave Guy]

The actual infringement needs only a good faith belief.

Or it doesn't, if there is no actionable penalty for issuing a takedown notice without such belief.

That seems to be the fundamental problem here. Legislating that no-one can make an honest mistake in this kind of field seems unconstructive, given the inherent uncertainty of fair use and the like. However, legislating that someone can maliciously or negligently make a claim that they should reasonably have known to be false is a different thing entirely, and that seems closer to what actually happened.

Re:DMCA reform

[Calydor]

I am personally just waiting for the day someone releases a movie consisting of just a single letter; perhaps a movie about drugs and night clubs named E.

Then a takedown request on EVERYTHING that has an E in it.

The internet will get really, really empty when all orphaned works of any kind vanish without a trace.

Re:DMCA reform

[Hotawa Hawk-eye]

Class action lawsuit for defamation? Claiming someone who holds copyright in their own work actually infringed another's copyright may taint their reputation as a content creator?

Re:DMCA reform

[Anonymous Brave Guy]

All we need is another part that specifies that the issuer of the notice makes a statement under penalty of perjury that they have performed due diligence in ascertaining the correctness of their good faith belief.

Yes, something along those lines seems quite reasonable to me, though in this context I'm not sure the perjury aspect adds anything other than complexity to simply requiring a claimant to perform due diligence or face a proportionate penalty. Something to compensate both the hosting service and the original provider of the hosted material that was taken down seems in order. Depending on the circumstances, that might reasonably vary from a modest fee to cover their time and trouble (negligent takedown but no real harm down) to more serious compensation (hosting service decides to cancel the original uploader's account, which had attracted a substantial and potentially valuable following the uploader then loses) to business-crippling compensation (maliciously execute takedowns on competing products, effectively secure market/niche while competitor is off-line for substantial commercial gain).

Re:DMCA reform

[elvesrus]

One of the videos taken down was their own trailer for the film, so the process has already started.

Another example

[Roodvlees]

Of how broken this system is. Wish I had mod point to upp some of the responses here.

Solution

[Andy Smith]

Have a significant penalty for an invalid complaint.

Re:Solution

[Dog-Cow]

Better solution: hunt down the employees of Entura and torture them to death. Paying out money is a cost of doing business. Risking one's life is a whole 'nother game.

Re:Solution

[trout007]

Sorry but expecting lawyers to implant a loser pays system goes against their ethics.

Re:Solution

[The New Guy 2.0]

Yep... it's called "punitive damages" in law. Use a movie title to take down something you can't and you should forfeit the movie's copyright to the people you sued.

Re:Solution

[The New Guy 2.0]

Loser pays is a typical court strategy in other places to convince losing plaintiffs to not waste the judge's time. It's common elsewhere, and occasionally happens here.

Re:Solution

[Lumpy]

I prefer corporate death penalty. The company is instantly dissolved Loses it's corporation status and opens up all Board and executive members to be 100% liable and suable.

Government agents then dismantle the company and sell it off for it's assets within 30 days of the ruling.

That right there will overnight make all corporations stop acting like assholes.

Re:Solution

[Overzeetop]

No, the sociopath would hunt down and torture the family members of the employees. What we found was the vigilante.

Re:Solution

[currently_awake]

When making suggestions on how to fix a problem, remember your enemies will want to use it against you. Holding the board/executives legally liable for all criminal corporate activity should suffice. A corporate death penalty would effectively prevent non-profits from fighting the good fight (ex. EFF).

What was the penalty for a false DMCA notice?

[Shadow of Eternity]

Probably not enough to actually matter to such a massive corporation...

Re:What was the penalty for a false DMCA notice?

[Calydor]

There isn't any. That's the problem.

This is, sadly, nothing new.

[Anonymous Coward]

In a past life, I ran some Forums on CompuServe. Paramount once sent us similar broad, misinformed takedown demands, pre-DMCA, seemingly regarding anything with TREK in it. This included photos of Trek brand bicycles, and news photos from 1976 of the Shuttle debut which happened to include Star Trek actors.

This garbage won't go away until there's a reasonable barrier to filing these, and an actual penalty for false claims. Perhaps an escrow of sweet delicious cash upon submission, released to the victim.

5-year old video

[Sigma 7]

I recall seeing a Youtube video where someone did the exact same pixel-invasion scenario. It starts with someone dumping an old TV, which then releases it's angry pixel payload, followed by space invaders who hit various cars, pac man who eats the subway stations (converting the staircases into just a few pixels), tertis blocks that remove floors of buildings, arkanoid paddles that remove bricks from a bridge, and finally ends with a bomb that turns the planet into one black pixel.

Here it is: https://www.youtube.com/watch?...

I'm sure Columbia has their claim, but some indie beat them by five years As usual, it's a big publisher doing a keyword search without thinking about the consequences.

Re:5-year old video

[p.g.king]

The Columbia picture is acknowledge as being based on that film (and based on French director Patrick Jean's 2010 short film of the same name)

Re:5-year old video

[elvesrus]

Or you could go back another 8 years to a Futurama episode titled Anthology of Interest II and specifically the segment titled Raiders of the Lost Arcade

https://en.wikipedia.org/wiki/...

Is a false DMCA claim an act of Perjury?

[NimbleSquirrel]

I wonder if it is possible to bring a Class action lawsuit against Entura (and Columbia Pictures)? IANAL but there seems to be a class here. By filing DMCA claims, Entura have committed themselves to a legal document (even if that is an electronic document). Surely, if the claims in the document are clearly false, then Entura have committed multiple acts of perjury (as each claim is a legal statement invoking the DMCA). As Vimeo counts the DMCA claim against the user, even if that claim is proved invalid, then the users can show that they have suffered harm to their reputations.

Re:Is a false DMCA claim an act of Perjury?

[Khyber]

"I'm not sure it counts as perjury under the DMCA as you'd have to prove they were intentionally lying and not just making mistakes through carelessness."

Incorrect. You have to claim that all statements made are accurate and made in good faith.

sign only that you represent author, not infringem

[raymorris]

> You must sign under penalty of perjury that you know the infringement to be true.

The statement under penalty of perjury is that the person filing the complaint represents the author or their assigns.

Whether or not a work is infringing, vs whether it's fair use, coincidentally similar, etc is a judgement call. It isn't a knowable fact anyone could witness to anyway. You could find a song that sounds just like an Emininem song and reasonably believe that they copied from Emininem, then later find out that the "copy" was in fact made 30 years earlier, before Emininem was born. So you realize the Aerosmith song is the original. Until you find out that Someone else did it fifty years before Aerosmith. Infringement is a JUDGEMENT that can only be said to be true after it's litigated. "I represent Emininem " is a factual statement someone can swear to.

This Really Needs to Stop

[organgtool]

This is absolutely outrageous and the fact that it happens so often is even more maddening. This is way worse than piracy. When a pirate makes an infringing copy of a video, they still leave the original copies behind so that other people can consume them legally. However, in cases like this, companies are having works removed from distribution channels when those companies know that they have absolutely no claim of ownership over that material. Could you imagine the damages the studios would claim if one of their movies was pulled from theaters during the opening weekend because someone made a bogus claim that the movie infringed on their content? There needs to be severe fines for this behavior. Given that this behavior prevents rightsholders from distributing their material over claims that are made in completely bad faith, the penalties should be hundreds of times worse than the penalties for a single case of copyright infringement. And the penalties should scale considerably for repeat offenders on top of that.

Can't copyright titles

[Mybrid]

Can't copyright titles and 'pixel' as a word is too generic to trademark. Ignore the take down.

http://www.writersdigest.com/e...

Q: Iâ(TM)ve been working on a book and the title is very importantâ"I use it as the URL for my blog, for a weekly column I write, etc., and I want people to identify it with me. Can I copyright a title so others canâ(TM)t use it? â"Anonymous

A: Copyrights cover works fixed in a tangible format, but because titles are typically short, they donâ(TM)t fall under copyright protection. So no, you canâ(TM)t copyright a title to a book, song or movie. But you can trademark a title, which may give you the protection you seek.

The U.S. Patent and Trademark Office states that a trademark protects words, phrases, symbols or designs identifying the source of the goods or services of one party and distinguishing them from those of others. Brand names like Pepsi, Xerox and Band-Aid are all protected. So is the Nike âoeswoosh.â But more relevant to us, book titles such as The Da Vinci Code and Harry Potter and the Sorcererâ(TM)s Stone are trademarked.

Unlike copyright protection, which is granted the minute your work is written down, trademarks arenâ(TM)t handed out so freely. In fact, if the U.S. Patent and Trademark Office doesnâ(TM)t consider your title (or brand) a distinctive mark that is indisputably distinguishable from others, you will not be granted trademark protection. This is why you see so many books with the sameâ"or very similarâ"titles. Many of the terms are considered too generic or arbitrary to warrant protection.

Trademarks are not only intended to protect the creator, but also the consumer. Trademarks keep others from confusing a well-known work on the bookstore shelves with others. For example, Harry Potter is such a popular, distinguishable character by J.K. Rowling that youâ(TM)d expect any title with his name in it to be written by her (or, at least, a book approved by her). Itâ(TM)s not only her work, but itâ(TM)s become her brand.

So if you use the title of your book as the title of your blog, column, etc., it could be considered your brand identifier. And if you find success, you could qualify for trademark protection.

Re:sign only that you represent author, not infrin

[TheReaperD]

IANAL but, it seems reasonable that the courts could impose some penalty for robo-signing the DMCA take-down notices as they are legal documents. Even the big banks had to pay huge penalties and redo mountains of legal paperwork for doing the same thing (robo-signing legal documents).

Sue them for Libel

[AnotherBlackHat]

Hasn't Entura committed libel, and can't they be held accountable for that?

Re:In other news

[Ol Olsoc]

The country is called "Colombia", not "Columbia".

Looks like the Asperger's crowd i chiing in.

That makes it even worse - Columbia not only infringes upon the name of a sovereign nation, but spells it wrong to boot!

Using the DMCA for good...

[vanye]

1) Make a series of movies titled "PowerPoint", "Flash", "SilverLight"

2) file DMCA take down notices.

3) all the crappy presentations and horrendous web sites disappear.

I could also do evil ( or more good depending on your point of view). My final movie will be called Stallman....

Re:At least they didn't hire these guys for "It"

[currently_awake]

Property taxes. If copying a 30 year old movie is worth inflicing massive financial penalties then it must be very valuable, and hence worth taxing to balance our budget.

Tell them what you think

[dristoph]

Here's their website, with a contact email address posted conveniently on the front page:
http://entura.co.uk/