Tuesday 10 March 2015

DCMA abuse results in $25,000 bill

The reckless glory of charging in .....
In our CopyKat of the 4th March 2015 we alerted 1709 readers of the mistaken and misguided attempts by Germany's Total Wipes Music Group to remove entirely legal content published by the likes Walmart, Ikea, Fair Trade USA and Dunkin Donuts using the DMCA takedown procedure. Now it seems there might be some real remedies for those at the receiving end of fraudulent and disingenuous DMCA takedowns after WordPress owner Automattic scored what seems to be a notable court victory. 

The case relates to an article and blog by U.K. based Oliver Hotham, a student, journalist and blogger who in 2013 published an interview with the anti gay-rights group called Straight Pride U.K.  Straight Pride "believes that the tide of Gay rights has gone too far, and that now heterosexuals have become the oppressed minority".

The organisation had answered some of Hotham’s questions by sending him a "press release" (which Hotham said he had to amend to correct appalling spelling and grammatical mistakes) but after some publicity, Straight Pride’s press officer, one Nick Steiner, seemingly decided that the Group didn’t now want their views to be known and requested that the article be removed. Hotham refused to delete the article which prompted Straight Pride to threaten and then file a takedown notice with Wordpress. The claim appeared to be based around the fact the Group felt they owned the copyright in their press release and this would prevent a journalist using that to answer questions which he had posed the Group and which prompted the very same release to be sent back to him. Hotham subsequently accused Wordpress of allowing Straight Pride UK to censors his work.  This Blog covered that curious tale here

But Hotham may have been a bit quick in criticising Wordpress as it transpired that owner Automattic subsequently decided to bring two actions under s512(f) of the DMCA for bogus DMCA notices and Automattic filed two separate lawsuits seeking damages against third parties for "knowingly materially misrepresenting" a case of copyright infringement against two Wordpress blogs: The first involved an attempt to remove a series of articles on the RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of cancer researcher and physician Anil Potti, who at the centre of a medical research scandal. 

The second of the lawsuits was aimed at Straight Pride U.K.’s press officer, Nick Steiner. Despite Stiener's domicile, given the fact that Automattic is headquartered in the U.S., and the law in question only applies to the U.S.,  Automattic filed their suits in California

..... May not always be the best idea 
And now United States District Judge Phyllis J. Hamilton has issued her ruling as, awarding Hotham $960 for “work and time,” $1,800 to Automattic’s employees for “time spent,” and $22,264 to cover Automattic’s attorney fees.

It may be a phyrric victory as Steiner has been untraceable, and the main Straight Pride U.K. site is no longer active (and in fact closed down a couple of years ago when we first covered this story, when the website suddenly seemed to be mysteriously undergoing 'reconstructive surgery'). But since Automattic's avowed intention was to "step up and protect freedom of expression and fight back against DMCA abuse",  the fact it may prove difficult to collect the sums awarded may not be that important.  “Good laws become bad when people abuse them” said Automattic founder Matt Mullenweg, adding "And this was always the main purpose of pursuing this case — to stop people abusing a well-meaning law."

Judge Hamilton wrote: The report and recommendation was filed on October 6, 2014. During the intervening time, plaintiffs Automattic, Inc. (“Automattic”) and Oliver Hotham (“Hotham”) have been attempting to serve defendant Nick Steiner (who resides in the United Kingdom) with a copy of the report and recommendation, but have to date been unsuccessful. 

“We tried to track down Nick Steiner, but didn’t succeed,” said Paul Sieminski, General Counsel at Automattic, in a statement to VentureBeat. “We’re disappointed by that and by the fact that he’ll probably never pay the judgement. So DMCA abuse may go unpunished this time. But, we’re heartened that our case makes some good new law for future cases. There’s very little case law in this area, and previously *no* case law about what damages were available if a plaintiff were to win. It’s important here that the court held that we could recover attorneys’ fees and costs of suit, which were by far the biggest piece of damages.”

Sieminski added: “We wanted to see how these cases played out first,” he said. “The lawsuits were very time consuming and expensive to bring, and Automattic will likely never collect on the judgment. This case also sets the precedent that Automattic will stand up for our users, and fight back against DMCA abuse. Hopefully that, along with the rule that victims can collect damages (especially costly attorney’s fees), may cause future DMCA abusers to think twice before they pull the same stunt.”


Images:  The Relief of the Light Brigade by Richard Caton Woodville (1856-1927) and Balaclava by Elizabeth Thompson, Lady Butler (1846-1933):

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