Unfortunately, it does not list the individual lawyer who signed off on this complaint, or I would be tempted to draft a letter to their local bar association pointing out how careless they are, as no reasonable person could mistake Github's documentation for a porno movie.
One of the more amusing URLs that caught my attention is a link to a torrent search site with the query being a single, very generic keyword: "girl". Presumably the results of that search include content they want to remove, so it also got hit.
17 U.S. Code § 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.
Partially because it requires knowing misrepresentation, not just negligent or even grossly negligent misrepresentation.
IE Diebold knew they were doing it.
There is no real caselaw (that i'm aware of) around "not investigating" or "willful blindness".
Anything. To discourage this behavior. To hit them where it hurts. (The wallet.)
Yes, they can. The fact that someone made that claim about the reliability of the process doesn't mean that the person sending the notice knew that any particular notice was in fact false at the time they sent it, even notices made after the claim of unreliability.
It is possible that if it can be proven that the recipient read the complaint, and failed to investigate it because they believed it was likely to be correct (or if, even without such a notice, they knew of the unreliability of the process and failed to investigate the facts of particular notices and just blindly relied on the process), and that decision was motivated by a desire to avoid discovering that the information was false, then they might be considered to have constructive knowledge, but that's a far cry from "a notice was sent claiming that the process was unreliable, so any error resulting from that process automatically will be found to be 'knowing'."
Setting loose a bot that takes real action in the world when you don't know what it is going to do and failing to even review its actions?
That is a waaaay worse crime!
Punishing or preventing irresponsible bot use will only become more important with the rise of machine intelligence/deep learning, IoT, drones, etc.
Then of course, you could package that reverse-engineering work as a service that will insert red-herring comments in source code to set off the automated DMCA takedowns, creating a free semi-private repository on github.
Falsely claiming to hold copyright in a work to which you do not hold copyright may open the possibility for slander of title (which was one of the claims in the SCO lawsuit).
I would be interested to see some sufficiently-deep-pocketed entity try to use that to turn an automated-DMCA-complaint house into a smoking hole in the ground, pour encourager les autres.
Arguably there may be other causes of action, but for a lone a DMCA takedown notice sans any accompanying threats, I believe Federal law would preempt and you're stuck try to meet the bar of intentional malice or negligence.
(IAANAL, but I listen to a lot of Jay-Z songs so I know a little bit.)
In theory there might be some other claim against a person filing bogus DMCA notices, but given that people have been spamming half-bogus notices like this for years now, I'm not really holding my breath. I guess there have been a few that got in a little trouble, but not much. If they get in trouble it's usually for something bigger.
Well that's not true. As posted by dangrossman above, the DMCA stipulates penalties if you misrepresent that the material is infringing. You will be liable for damages, including lawyer's fees.
The wording actually results in "under penalty of purjury" to modify the succeeding part of the sentence, not the preceding part. As a result, the penalties only apply if you act on behalf of another party without authorization.
Penalties would apply for mislabelling content as copyright infringing as well as acting without authorization if the requirement was this along the lines of "a statement, under penalty of perjury, that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
So you have to prove that they actually KNEW that Github was not a porno movie owned by them, not just that they were (hypothetically) filing legal papers while intoxicated or without actually reading them.
How you're supposed to prove they actually know anything at all in the face of the sheer stupidity demonstrated by this notice is an open question. I think a real lawyer would need to answer that, but I found something that makes it seem like the standard could be met if they made the statements with a complete disregard for the truth thereof - http://legal.practitioner.com/regulation/standards_9_3_1.htm
But it makes it seem like they could argue that they were simply careless and avoid it, so I don't honestly know.
"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."
Whoops! This particular list of "infringing" URLs wasn't actually, well, accurate. The problem for whoever sent this bogus takedown (Wicked Pictures or its agent) is that now they can be held liable.
In a case brought by EFF in response to an earlier bogus takedown from Diebold, a federal judge in California held that Diebold could be "liable for damages" -- even though Diebold had by that point withdrawn the takedown request and promised not to send another.
DMCA 512 section (f) says that someone sending bogus takedowns "shall be liable for any damages, including costs and attorneys’ fees..." In the Diebold case, Diebold eventually paid EFF something like $125K in lawyer fees.
Note that this situation probably won't get that far. That's because the DMCA doesn't require Google or any other provider to comply with bogus takedown notices. And Google happens to have some smart attorneys (at least one ex-EFF lawyer, in fact) on its payroll who are well aware of that fact.
Google removed all URLs except 3:
In other words, Google is not the EFF.
Safe harbor has enabled the modern web in many ways, but the DMCA takedown process is still heavily, heavily weighted toward the claimants.
It looks more like the URLs not taken down were mostly malformed or duplicates of earlier claims and they took action on the rest. Purposefully not acting on DMCA complaints due to obviously bogus takedown notices doesn't happen very often because you generally have to be really sure of what you're doing. Hard to do that when you have 8 million URLs to sift through to find the problematic ones.
Ire? You are misreading my comment. I merely sought to correct the parent poster’s view that Google would not remove anything partly because they have lawyers who used to work at the EFF. The fact is that Google did remove almost everything, and merely employing people who used to work for the EFF does not cause Google to be the EFF.
They could hire a few people to get through as many computer sorted reviews as possible, and the rest of them fall through the cracks.
Certainly someone has to be doing this, somewhere. At worst, sneak your target URLs into a long list of torrents. How much is bumping off a few competing search results worth?
Just seems rather abusable.
So I'd assume any due diligence is directed at formal correctness rather than substance as any other approach would have added cost to implement while increasing legal risk.
"that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
In other words they are acting on behalf of the owner of the owners of the content being infringed (the content located at the URLs).
If the content at the URLs is NOT owned by Wicked, than they are claiming to represent the owner of the content at those locations, when they are in fact not.
No, there are two separate claims:
1) that the person represents the owner of a particular copyrighted work, and
2) that particular hosted content violates the copyright on the particular copyrighted work.
Only the first of those is under penalty of perjury. If the particular identified copyrighted work is owned by the party represented, then even if the particular identified hosted content doesn't violate the copyright of the identified work, there is no perjury issue (there may be a knowing false claim of infringement issue, but that requires proving that the person sending the notice knew that the identified hosted content did not infringe.)
I'm not sure a single URL in that list is actually infringing. The only thing they seem to have in common is the name "Adam".
EDIT: Well, yes, they did do that here. My bad. My original point was that Competitor A submitting a wanton DMCA takedown against Competitor B wouldn't fly past Google's radar.
Just in case anyone skims this far and panics by misreading jkrems' post, I should clarify that they took down the Google search results for Cargo, rather than the Github repo . Unfortunately, for the average user, removing something from Google may as well be a complete takedown...
This implications of this are troubling.
I'd imagine anyone quickly perusing the comments might've had a similar thought!
You're absolutely right, though. It really doesn't matter: The DMCA protects content owners to the detriment of innocent parties.
Is there any evidence at all that Google actually manually sifts through every takedown (or even any takedown), or is everyone just speculating that they must because they Google?
I have no idea, but if we actually have evidence or public statement from Google to that effect, I'd be interested. And I definitely wouldn't assume it without that. But lots of people in these comment threads seem to be doing so (unless there's some widely known reports or evidence I don't know about?)
They will take down everything specified in every DMCA notice even if it is obviously bogus, because not doing so opens them up to a lawsuit. (a lawsuit alleging malafide intentions or a lawsuit for harm if they should make a mistake in deciding which part of the DMCA notice to honor and which to ignore.)
It is up to the harmed party (the owner of whatever was taken down) to challenge the DMCA takedown in a court. Once you win in court, Google will restore whatever was removed.
IIRC YouTube refused to block the site for this very reason; the "10 days later" would have ruined the clickbait purpose of the video as the event would have been well over and actual legitimate outlets for its content would have sprouted up.
It is up to the harmed party (the owner of whatever was taken down) to challenge the DMCA takedown in a court. Once you win in court, Google will restore whatever was removed.
I doubt anyone has gone to court over the Adam URLs either. Some of those are personal pages (ironically enough, including a law professor: http://www.law.georgetown.edu/faculty/levitin-adam-j.cfm ) and it doesn't seem like whoever is responsible for them would even know that they were listed in a DMCA notice.
I have a good faith belief that use of the copyrighted
materials described above as allegedly infringing is not
authorized by the copyright owner, its agent, or the law.
The information in this notification is accurate and I
swear, under penalty of perjury, that I am the copyright
owner or am authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed.
But that takes time and money most projects don't have.
If Github has the cash sitting around they could sick their lawyers on them for some laughs.
After securing power of attorney from actual owner, mail form letters requesting immediate withdrawal of dmca and payment of a "small settlement" for the damages caused by it.
Heck, maybe the EFF could get a bunch of junior lawyers on this, it would likely pay by itself.
They are so easy to setup that you'll never win that race. It'll cost you in time and other resource every time, and you'll get nothing back, and while you are faffing around with one ten more companies are ready to go.
Why are they allowed to take down sites so obviously unrelated?
I imagine it's pretty easy to use this sort of takedown in a malicious manner to remove competitors' sites, surely there is some defense mechanism against this?
It doesn't. This outfit, per Chilling Effect's search, pumps out notices by the hundreds. Most likely they use some script or tool to grab a bunch of URLs from various Google searches, then dump them into a form letter. I'm not sure if anyone was supposed to weed out the obviously bogus output, but I think we can all see that nothing of the sort happened.
They churn these out fast enough that nobody is actually paying any real attention to what they're doing from what I've seen.
Because they can: DMCA.
My limited understanding is that these companies just use google search apis to try to find search results matching keywords. Then they file requests for every matching url. This is how obviously wrong requests show up.
There are also cases where requests appear to be malicious, but there are really no consequences since you (iirc) have to prove bad faith which is next to impossible and since everything is being adjudicated via third parties, there is really no incentive.
"Oh, haha, sorry about that. Our automated tool screwed the pooch on that one. We promise we'll do better next time."
Side note - I'm surprised they've included some pages which do not contain copyrighted work though, they may be exposing themselves on that one.
Then I realized their master plan: they're protecting their business model by (1) making it harder for us to do our work since it's harder for us to find the software libraries/tools we need, and (2) by providing us with a list of porn sites they fill up the time we would've otherwise spent coding.
This husband wife team is racking up some huge censorship numbers.
That page shows all the dmca requests to google that target github.com. Wicked pictures shows up in a number of requests but they are by no means the only copyright holder issuing requests.
You can click through to the request pages and get links to chilling effects and it will also tell you which URLs were requested that were _not_ taken down. ChillingEffects just reports on the requests, not the actions.
# curl https://www.chillingeffects.org/notices/10275257 | grep github
We have received your legal request. We receive many such complaints each day; your message is in our queue, and we'll get to it as quickly as our workload permits.
Due to the large volume of requests that we experience, please note that we will only be able to provide you with a response if we determine your request may be a valid and actionable legal complaint, and we may respond with questions or requests for clarification. For more information on Google's Terms of Service, please visit http://www.google.com/accounts/TOS
The Google Team
Shady, manipulative, and particularly troubling when the DMCA protocol is "shoot-first" and there is absolutely no oversight or review.
Some kind of punitive penalty for false complaints and a few precedents are needed to put these copyright trolls in their place...
The name is not ... the greatest, though. Maybe they should have called it "Boilerplate, eh?" ;)
So Web Experience Toolkit - Boîte à outils de l’expérience Web
I'm pretty sure it was named by a committee.
AFAIK ddg does not take down search results based on DMCA notices but I'm not sure about that.
Why is it necessary to post the lawyer's address and point out that it appears to be their home too?
What possible outcome are you hoping to achieve by doing this?
Isn't this little more than a low level case of "dox"-ing someone you disagree with?
>Isn't this little more than a low level case of "dox"-ing someone you disagree with?
You might as well have said
>Isn't this little more than a low level case of "dox"-ing someone that hurt your feelings
But I digress. Given that various socially unacceptable activity on the internet are frequently punished by doxxing (http://racistsgettingfired.tumblr.com/), I fail to see how this is any different.
The privacy of this "company" isn't violated the same way I publish your home address. People knowing them and refusing their business isn't censorship of their free speech or their rights or whatever they were up to before. However it may induce them to be more self conscious next time they commit perjury.
These people seem to be fine with taking out perfectly legit content from the internet because they haven't done their research properly. This impacts the hard work so many people have put in, but the complainant hasn't broken the law. The comment you were replying to hasn't broken any laws either.
The DMCA take down system is flawed, and invalid take downs should be penalized at $x.xx per blocked request.
For some reason, the US prosecutors don't seem to be enforcing it.
They seem to be based out of Las Vegas and almost exclusively cater to the adult and amateur wrestling industries.
(Yes, I know we all use those memes and it's more or less accepted by the subjects, even embraced by some. Just making a point.)