
EFF’s Tweet About a DMCA Takedown Is Now Subject to an Overzealous Takedown - sohkamyung
https://www.eff.org/deeplinks/2019/04/effs-tweet-about-overzealous-dmca-takedown-now-subject-overzealous-takedown
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duxup
I feel like legal threats / take downs that are baseless at face value ....
should have consequences for the lawyer / organization making them. Perhaps
some system like small claims court that could relatively efficiently deal
with them.

I recently received a "cease and desist" from a company who competes with the
company I work for with some subtle insinuations (without saying I personally
would be in legal trouble... they imply it). It was sent to me via LinkedIn of
all places. The company I work for has a valid mailing address that is easily
googled, same thing with contact email address, phone numbers, etc. I suspect
because I'm involved in web development they think I'll just take down the
content they do not like / disable some things at their direction.

I ignored it, I had my employer contact them and respond as it's their deal.
The issue the other company has is entirely BS. I am not a lawyer but I ran it
by some lawyer friends who thought it was hilarious how misguided it was.

It seems like there should be some potential consequence to prevent threats
that are that far off.

~~~
nkrisc
Is this the kind of this you can complain to the lawyer's Bar Association
about? A one-off bad cease and desist might not warrant any action but if it's
a pattern of behavior they might be interested in having it documented. Am I
being too optimistic?

~~~
DannyBee
The bar associations, while often well intentioned (depends on the state but
most are), have very very limited resources to do investigations.

They also receive a large number of baseless complaints (IE are about re-
litigating the case. For example, in a divorce, they often receive complaints
about lawyers because the client lost, not because the lawyer did anything
wrong. )

As such, they spend _most_ of their time and energy mostly investigating
egregious issues (IE stealing from clients, etc). They also get referrals from
judges about bad or illegal behavior.

It is unlikely a complaint about DMCA behavior is going to go anywhere.

~~~
mcherm
> It is unlikely a complaint about DMCA behavior is going to go anywhere.

It is guaranteed that the lack of a complaint will not go anywhere. And legal
processes tend to be VERY slow and inefficient but they thrive on formal
documentation.

~~~
DannyBee
I'm licensed in three states as a lawyer, so i'm quite aware of what they
thrive on :)

What you write is a truism, but i'm not sure it's that helpful. The post i
responded to seemed to be trying to understand the tradeoff and likelihood it
has an effect, which is what i was answering. You have not argued it will have
an effect, actually, just said it's non-zero probability.

If it cost zero time/energy to file a complaint, sure, why not. That isn't the
case here and most people want to understand the tradeoff, not the extreme.

Otherwise, you'd just do _everything_ , regardless of time/cost/effectiveness.

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eridius
My understanding is there's supposed to be some penalty for submitting false
DMCA complaints (assuming they weren't sent in good faith; it's hard to
believe this was sent in good faith given that the complaint had no basis
whatsoever in reality). Has anyone ever actually been penalized though?

~~~
philpem
There's an "on penalty of perjury" clause in the law (if memory serves, it's
part of a clause which must be present for a takedown notice to be valid). In
practice, David often can't afford to sue Goliath.

I don't think I've heard of a single civil or criminal case under the DMCA's
false notice provisions. It's effectively hot air.

~~~
morganvachon
Even if David could afford to sue Goliath, and even if he won, Goliath would
just lobby for small changes to the law to further strip rights away from all
the falsely accused Davids.

I'm not saying the little guy shouldn't sue; people should stand up for
themselves whenever they are accused of wrongdoing, and especially when they
know for a fact they are innocent. The problem is, even when suing and winning
sets a precedent, the big players just move the goalposts again. There's never
going to be an easy solution that satisfies both content creators and content
consumers short of massive copyright reform and hard criminal instead of soft
civil penalties for making bogus DMCA claims.

~~~
kevin_thibedeau
You don't need DMCA provisions to sue for libel.

~~~
philpem
But you do need deep pockets.

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sbzodnsbd
“Fortunately, EFF is an organization that definitely knows its rights and how
to exercise them.”

Exactly. Of all the orgs to send a BS take down notice to, the EFF would be
the last I’d pick a fight with.

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joecool1029
Relevant court precedent:
[https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp](https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp).

I'm thinking Starz will back down fast, but we'll see.

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mcguire
" _The DMCA process allows us to send a counterclaim, explaining that the
tweet is not infringement and directing Twitter to restore the tweet, barring
a copyright infringement lawsuit being filed by Starz. We have done so._ "

That's all? They can't sue Starz for being idiots?

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adzm
Well, I can cancel my Starz subscription at least.

~~~
whenchamenia
Doing that now. There is no moral or legal justification for this type of
behavior.

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coldcode
So if we put a link to the story about the takedown of a link to a story about
a takedown of a linked story in HN HN will get taken down? Methinks this makes
no sense to anyone.

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droithomme
I imagine the Jessica person whose name was watermarked on all the screeners
(according to the TF article) is in a heap of legit trouble.

~~~
nkrisc
It's possible (you decide how plausible) that they did not release it
themselves, but perhaps had it stolen from them in some manner. After all, who
would risk their career and legal trouble to release a review copy of an
unreleased show with their name clearly visible?

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wnevets
Wasn't Starz recently bought by another company? Sounds like the new owners
are making all sorts of mistakes, like canceling Ash vs Evil Dead and this

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theandrewbailey
I wonder when Starz will send a takedown notice to the EFF over this article.

