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EFF’s Tweet About a DMCA Takedown Is Now Subject to an Overzealous Takedown (eff.org)
312 points by sohkamyung 5 days ago | hide | past | web | favorite | 41 comments





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.


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?

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.


> 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.


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.


This is sort of what I was thinking. Not expecting that anything would happen, but having documented the complaint should something more egregious arise in the future.

Hard to know. If it continues I'll look into it, but like all legal things I'm guessing the cost to just get involved is pretty high. I suspect I'll never hear from these folks again.

Right now it's just one message on LinkedIn. If I hear form them again ... I'll have to think about it / contact a lawyer.


Perhaps you should engage a lawyer yourself and send your own "cease and desist" letter in response to their actions. Let them know that their continued harassment will result in a lawsuit.

It's amazing how quickly some companies will respond to a succinct letter from a reputable law firm.


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?

The enforcement mechanism relies on the receiving party (Twitter in this case) suing the fraudulent DMCA sender. This is troublesome, as these platforms have very little motivation to do anything beyond discarding fraudulent DMCA notices, and users of the platform that are the target of the DMCA notice might not have standing to take this matter into their own hands (IANAL).

Establishing certain mass-DMCA senders as often fraudulent would be risky to do without at least a summary judgment, so YouTube, Google, Twitter and ilk provide no pushback against repeat DMCA notice fraudsters as any perceived pushback could land them in court.


Wait, it's up to Twitter to sue, not the person whose content was taken down? So there's no recourse at all for the actual victim?

That has been my interpretation of the DMCA notices I've received in the past, its an issue between the host of the content and whoever sent the DMCA notice.

This is incorrect - it's an issue between the copyright owner and copyright infringer, with the content host only acting as a relay.

Under Section 512 the only responsibility of the service provider is to remove the content, relay the notice to the actual copyright infringer, and allow them to file a counter-notice.

From there if the counter-notice isn't accepted by the copyright owner, they would have to file a lawsuit with the copyright infringer.


> From there if the counter-notice isn't accepted by the copyright owner, they would have to file a lawsuit with the copyright infringer.

But can you as the alleged infringer sue the claimant?


Yes but only for damages.

But if the platform ignores the DMCA takedown, the alleged infringer will never know, and so cannot sue.

I think the original question is if the platform can sue the person sending the DMCA takedown, for some kind of harassment. Because the platform itself will also investigate before taking content down.


As long as the platform follows a proper DMCA takedown, they cannot be sued for infringement. If, however, the platform ignores the DMCA takedown, they lose the protection they'd otherwise keep under the law and can themselves be held liable for the infringing copyright.

Ah, so they need to act as a relay. Now I get it. Thanks for the explanation.

The problem with the DMCA is that the platform has to immediately take down the content or they lose the protective aspect of the DMCA- I think (though not a lawyer) that more or less any analysis immediately strips protection.

Essentially the belief is that DMCA would never be abused for any reason so you need to penalize the platform but not the submitter.


Yes, there is such a provision and it's been enforced at least once:

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

The penalty wasn't big enough to have much of an impact on anyone involved, after lawyer fees. But damages were awarded.

EFF's legal director is quoted in that Wikipedia article discussing that case, so I presume EFF has either a legal or a strategic/PR/financial reason why they can't use that provision in this case.

I'm not a lawyer myself, though I have attended a year or so of law school and I have read the text of the DMCA.


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.



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.


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

But you do need deep pockets.

If the DMCA allowed the accused to sue then I would assume EFF would do it.

And I further suspect that the EFF would have or would be able to muster the resources to do so in a case like this.

Worse, perjury is a criminal offense, not a civil one. You can't sue for perjury; you have to convince a prosecutor to press charges.

Functionally, none. This is how the record labels can send millions of takedown notices a day, completely automated, frequently bogus.

The record labels are generally using systems set up to bypass DMCA in order to process high volumes of requests. For example, labels who issue takedowns of YouTube videos aren't submitting DMCA requests.

In theory barratry could be used as the basis for disbarment. Knowingly making false statements would fall under this regime. Lawyers rarely go after their own kind so this leverage isn't often used, however. Jack Thompson got away with his egregious behavior for a few decades before he was taken to task.

“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.


Relevant court precedent: https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.

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


"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?


Well, I can cancel my Starz subscription at least.

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

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.

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.

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?

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

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



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