
Site plagiarizes blog posts, then files DMCA takedown on originals - sk2code
http://arstechnica.com/science/2013/02/site-plagiarizes-blog-posts-then-files-dmca-takedown-on-originals/
======
dweekly
Hey, so a common thread here seems to be enforceability of false DMCA notices
and how it's a pity there's no penalty.

There are penalties.

Check out 17 USC 512(f): <http://www.law.cornell.edu/uscode/text/17/512>

(f) Misrepresentations.— Any person who knowingly materially misrepresents
under this section— (1) that material or activity is infringing, or (2) that
material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred
by the alleged infringer, by any copyright owner or copyright owner’s
authorized licensee, or by a service provider, who is injured by such
misrepresentation, as the result of the service provider relying upon such
misrepresentation in removing or disabling access to the material or activity
claimed to be infringing, or in replacing the removed material or ceasing to
disable access to it.

I was the plaintiff in OPG v. Diebold, which was the first US federal lawsuit
to establish the enforceability: we won. You can't just issue spurious, false
DMCA notices without opening yourself up to large damages, such as the ones
that Diebold had to pay.

<http://en.wikipedia.org/wiki/OPG_v._Diebold>

~~~
bediger4000
_There are penalties._

Sure, just like there's a 4th Amendment right to not be the target of
unreasonable search and seizure, and a constitutional right (Section 9) to "a
regular Statement and Account of the Receipts and Expenditures of all public
Money shall be published from time to time". Oh, there's also a 5th amendment
right to be indicted by a grand jury for a capital or infamous crime.

But you're also almost certainly snooped on every telecomm session, and the US
Government has a program for assassinating US citizens.

The US government doesn't enforce laws strictly, or by what the obvious
wording says, nor does it enforce laws uniformly. In practice there's a "high
court" for large corporations and rich people, and a "low court" for commoners
and other smaller personhoods.

~~~
zecho
I get your point, but a legal opinion from the Department of Justice is not
the same as a "program." Set the hyperbole aside and realize that laws are
always in flux, and that the courts largely define things like "unreasonable
search," etc. The statement from the parent is still true. There are penalties
on the books. It takes people bringing abusers to court, though, to decide the
exact nature of those penalties.

~~~
bediger4000
In the case of the near-universal snooping by the NSA and related agencies,
the courts have ruled, I believe: nobody has standing. Virtually every time
the US Government uses the "State Secrets" privilege, the courts just let it
go. For all practical purposes, what seems to me as clear wording of the 4th
Amendment gets taken to mean something else. It's not really hyperbole. There
are penalties on the books, agreed. They're toothless for various factors,
except maybe for the very wealthy personhoods among us.

------
thechut
Nobody here has made what I thought to be the biggest point in this article.
The reputation management company...

Given the situation and the details mentioned in the article. It seems the
reputation management company is hiring people to re-post content and send
DMCAs. What other explanation is there for why somebody would rip off blog
posts. Obviously this sort of thing would be a last resort for the reputation
management company. But in some cases, there may be no other way to remove /
push down the unwanted content.

I would bet this is a common tactic of reputation management companies. Can
anybody here confirm or offer insight about how these companies work?

~~~
monochromatic
The same thing occurred to me as _a possibility,_ but saying that "it seems
they are doin this" is way stronger than what we can conclude from this
article. Do you have any evidence beyond "hey, this could happen"?

~~~
thechut
No, there really isn't hard proof which is why I'm assuming ars didn't jump to
that conclusion.

To me what points to it the most is why would somebody rip off those
RetractionWatch articles in India. It seems that something other than trying
to increase ad revenue is going on here.

~~~
monochromatic
Yeah, it's certainly suggestive.

------
tokenadult
This shows the power of Retraction Watch,

<http://retractionwatch.wordpress.com/>

a site that I think I learned about from another user's comment here on HN, to
update the reputations of "researchers" who have had to retract many published
journal articles. All the more reason, I think, to regularly read Retraction
Watch to find out what is going on. The Retraction Watch site's own reporting

[http://retractionwatch.wordpress.com/2013/02/05/wordpress-
re...](http://retractionwatch.wordpress.com/2013/02/05/wordpress-removes-anil-
potti-posts-from-retraction-watch-in-error-after-false-dmca-copyright-claim/)

on what Ars Technica passes on in the submitted article is quite interesting,
and an example of the carefully nuanced writing on Retraction Watch.

------
PeterisP
Well, that should be fixable - if this is an actual DMCA takedown (instead of
a simple complaint), then it does come with a mandatory requirement to be
'under penalty of perjury'. Intentional misuse can thus be persecuted, and may
get even criminal penalties.

Of course, it's a big question whether they will try to fight it in courts and
if DMCA perjury jurisdiction can effectively reach the accused company in
India.

~~~
dangrossman
It's much simpler than that. To be protected by the safe harbor provision of
the DMCA, a service provider must not only promptly disable access to material
upon receipt of a notice, they must also promptly re-enable access to that
material upon receipt of a counternotice.

The original author need only send these notices and the blog posts must be
put back up if WordPress wants to be protected from being sued itself for
distributing the material. In most cases, this entails nothing more than 2
minutes to copy and paste an e-mail from a readily available template, simply
adding in your name and URLs of the content you attest you have permission to
publish.

The DMCA errs on the side of leaving alleged infringing material online, not
the other way around. To force something down, you have to go to court and get
a judgement.

The perjury statement is actually weaker than it seems. The wording you see in
a lot of copy-and-paste notice templates is stronger than is required by the
act. You only have to attest under penalty of perjury that you are authorized
to act on behalf of the holder of a copyright, not that the contents of your
claim are true.

~~~
drucken
"To get content removed, copyright holder Bob need only claim a good-faith
belief that neither he nor the law has authorized the use. Bob is not subject
to penalties for perjury. In contrast, _to get access to content re-enabled,
Alice must claim a good faith belief under penalty of perjury that the
material was mistakenly taken down_. This allows for copyright holders to send
out take-down notices without incurring much liability; to get the sites back
up, the recipients might need to expend considerably more resources. Section
510(f) makes the sender of an invalid claim liable for the damages resulting
from the content’s improper removal, including legal fees, but that remedy is
not always practical.

Furthermore, _ISP’s tend to remove allegedly offending material immediately,
while there is a 10-14 day delay before the ISP re-enables access in response
to a counter-notice_. For example, if a website advertised an upcoming labor
protest outside BlameCo, BlameCo could send a DMCA notice to the site's ISP
alleging copyright infringement of their name or logo a week before the
protest. The site would then be disabled; even if the site's owners
immediately filed a counter-notice, access would not be re-enabled until after
the protest, too late to be useful." [1]

The behavior described above is consistent with many ISPs, Google and Youtube,
for example. In fact, with Youtube's stated policy [2] it is not even clear
that without consent from the original "copyright holder" that they will
restore content (though from DMCA terms alone they are theoretically legally
obliged). Wordpress's stated policy [3] is more direct but no less frustrating
for victims of malicious takedown notices.

[1]:
[http://en.wikipedia.org/wiki/Online_Copyright_Infringement_L...](http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Ineffective_Counter-
Notice_Procedure)

[2]: [http://www.youtube.com/yt/copyright/counter-
notification.htm...](http://www.youtube.com/yt/copyright/counter-
notification.html)

[3]: <http://en.support.wordpress.com/content-theft-what-to-do/>

~~~
dangrossman
It's a trade-off. There's potential harm to the victim of a false claim, but
there's also potential harm to the victim of a true claim in the case of a
false counternotice. If the infringement is legitimate, then the law wants
there to be ample time for the victim to go to court to get an injunction so
further harm isn't done. It allows those ~10-14 days for that to happen --
after which the material has to be put back online for the service provider to
retain the safe harbor benefits.

~~~
jeremyjh
It isn't a trade off at all. It is legislation that favors the interests of
those who purchased the legislation.

~~~
dangrossman
The safe harbor provision of the DMCA exists entirely to take away power from
copyright holders. It creates an entire class of businesses (internet service
providers) who can't be sued for infringing copyrights if they follow certain
rules. It makes copyright holders that abuse the provision pay both damages
and legal fees of the victim. It enables the legal existence of sites like
YouTube despite rampant copyright infringement.

Meanwhile, other provisions of the same act directly benefit copyright
holders: prohibiting breaking of anti-circumvention measures, for example.
This gives DRM its legal teeth beyond simple breach of contract.

How does this fit into your conspiracy theory? There isn't one single group
that this act represents the interests of.

~~~
jeremyjh
It isn't a conspiracy theory to say that media interests did the lobbying for
DMCA. I cannot even find a reference to an ISP lobby that promoted it. Was
there one?

------
ComputerGuru
Is anyone else having a problem with Google no longer acknowledging responses
to false/faulty/inaccurate DMCA takedown requests?

We used to receive 3 or 4 a year, and Google was good about getting us
relisted when we explained the error to them. I had two DMCAs from Google last
month, and they still haven't gotten back to me about my request for
relisting....

------
incision
Are there no "digital notary" services? Off the top of my head, such a service
would allow you to submit a block of text or perhaps a link which the service
would regularly check and hash / mirror.

I'm thinking this would be straightforward to create, but hard to become
established as an authoritative source.

EDIT: I see archive.org is a popular way to go about something like this.

~~~
elliottcarlson
archive.org is awesome - however there is one thing that bothers me about the
indexing service, and I am not sure how it could be improved. The problem is
that if a site currently has a robots.txt blocking indexing, the whole history
of that site disappears with it. On the one hand, this makes sense - what if
some webmaster forgot to prevent indexing and then adds it, with the original
intention to not share any of the sites work. On the other hand, this prevents
me from finding a site I worked on 15 years ago, because the current domain
has it blocked.

~~~
aw3c2
I am sure IA would be helpful if old data is needed in a court.

------
agilord
I start to wonder: what can we do to actively prevent such things to happen?
E.g. someone can copy a blog content, set the date back by a few months,
publish it, and submit the DMCA takedown. Even if it reaches the court, who
and how will decide who the original author was?

~~~
dangrossman
The original author will submit a counternotice and their content will be put
back online. If the copier wants to take their bogus case to court, a judge
will decide based on the evidence presented. Google cache, Archive.org, server
access logs, code repository commit histories, e-mails or whatever else you
can find could be presented as evidence of the publication date. In the
meantime, the service provider must assume the content is published legally if
they want safe harbor protection from bogus lawsuits of their own. I can't
think of a better system, honestly.

~~~
dredmorbius
> The original author will submit a counternotice and their content will be
> put back online.

With a statutorily mandated 10 day delay. Such are the DMCA's take-down
procedures.

~~~
dangrossman
Yes, as has been mentioned several times. The act balances the interests of
all the parties -- the delay may hurt, but it provides actual victims of
copyright infringement the time to go to court and get a preliminary
injunction to prevent further damages. If the notice was fraudulent and there
was no infringement, the filer is liable for damages and attorneys fees of the
accused should they wish to sue and recover them. Whatever loss those 10 days
offline caused are recoverable damages.

------
javajosh
I asked this question regarding a recent thread where the site owner claimed
to have gotten ripped off, and received no responses.
<http://news.ycombinator.com/item?id=5166902>

~~~
ender7
<http://archive.org/web/web.php> is a very common tool for such things.

~~~
javajosh
I'm a little unclear about how this solves the problem. Why can't a copyright
violator request that their site be backed up, perhaps even before the
original? Or are you suggesting that site owners upload to the wayback machine
as part of the deployment process?

------
fencepost
One somewhat late comment: based on what I saw in other discussions of this,
the domain registration of the site in India is basically all false
information - one starting point might be to see what can be done about
getting that domain registration cancelled. The Indian registry does have a
policy that registrants must provide accurate information.

------
protomyth
If we have to keep this thing, I dearly wish the party filing the request
would have to show some proof or at least be in the US. this guilty before
innocent crap is a pain.

On a sadder note, looks like the alumni association is going to receive a
letter from me.

------
mikeleeorg
How easy is it to file a DMCA takedown notice? I would think there's some due
diligence on the part of DMCA to verify the claim first. At least, I hope so.

~~~
dredmorbius
Google for an example of the DMCA form or boilerplate (the language is in the
law). Find the registered agent address for a site. Send an email.

Done.

------
hrmwhat
And that's why I don't contribute anything online

~~~
pjscott
Is that your true reason?

------
SagelyGuru
Oh, come on, wake up! Don't you see yet that this is exactly what the DMCA
notices and similar have been designed to do? It is a tool to silence the
inconvenient whistleblowers.

