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.”

http://venturebeat.com/2015/03/09/wordpress-wins-in-court-over-fraudulent-copyright-takedown-notices/

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

In the deserts of Sudan and the Gardens of Japan, From MIlan, to Yucatan, the CopKat is in the can

A split panel of the Federal 9th Circuit Appeals Court has confirmed that DC Comics and its parent company Warner Brothers own the copyrights to Superman, with the court noting that it was ending "another chapter in the long-running saga regarding the ownership of copyrights in Superman - a story almost as old as the Man of Steel himself".  Heirs of Superman co-creator Joseph Shuster filed a copyright termination in 2003 in a move to reclaim rights Shuster had sold to DC Comics in 1938. U.S. District Judge Otis Wright in Los Angeles ruled for DC, finding that a 1992 agreement signed by Shuster's siblings, from which they received lifetime pensions from DC, had revoked a previous 1938 contract. Dissenting panel member Judge Sidney Thomas said that the record was "not sufficient to establish that Joe Shuster's siblings had the authority in 1992 to revoke and supersede his 1938 copyright grant" saying that copyright law in 1992 was such that "no one except the surviving spouse or child could exercise the right of termination"  and that it was not until 1998, "six years after the parties executed the agreement at the center of this appeal," that "Congress extended the termination right to authors' executors, administrators, personal representatives, and trustees".

More on DMCA takedown notices being used to stifle free speech.  Gordon Klingenschmitt, a former Navy chaplain running for office in Colorado had already used the YouTube's takedown system to kill the account of Right Wing Watch, a group that was critical of Klingenschmitt and his politics. TechDirt report that earlier this week, YouTube restored Right Wing Watch's account, after "realizing that he [Klingenschmitt] was clearly using their copyright takedown system to stifle criticism, not for any legitimate copyright purpose." Klingenschmitt then immediately filed yet another "bogus" copyright claim with YouTube, getting their account taken offline again. Moves are afoot to ask YouTube to revitalise it's systems to prevent serial takedown abusers taking accounts offline - and let's not forget those s512(f) actions under the DMCA for false takedowns which can result in damages and legal costs for the injured and non-infringing party - and we blogged about these here - certainly something for Right Wing Watch to consider if Mr Klingenschmitt is indeed materially misrepresenting infringement. Our earlier blog on copyright and free speech here.

The Beastie Boys are seemingly less than impressed with a 'parody' produced by a new toy company called Goldieblox - a video of three girls playing with a Rube Goldberg-type invention and singing alternative lyrics to the Beastie Boys song "Girls." Since the video went up online it has been viewed more than seven million times. Having received a letter alleging copyright infringement, Goldieblox are now seeking declaratory relief in the federal court in the United States District Court in the Northern District of California. It seems lawyers for the Beastie Boys claim that the GoldieBlox Girls parody video is a copyright infringement, is not a fair use and that GoldieBlox's unauthorised use of the Beastie Boys intellectual property is a 'big problem' that has a 'very significant impact.' It might be one to watch as clearly the 'parody' is to promote a commercial concern and sell toys - although it may well have also stoked up a debate on young girl's interest in science and scientific careers. In the original song, the Beasties sang: "Girls -- to do the dishes/ Girls -- to clean up my room/ Girls -- to do the laundry/ Girls -- and in the bathroom/ Girls, that's all I really want is girls." The video replaces those lyrics with: "Girls -- to build the spaceship/ Girls -- to code the new app/ Girls -- to grow up knowing/ That they can engineer that/ Girls. That's all we really need is girls." Despite the fact the video really is a very clever advert for 'toys for future engineers', GoldieBox say that they created the video with specific goals to make fun of the Beastie Boys song, and to further the company's goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math. The GoldieBlox Girls Parody Video has gone viral on the Internet and has been recognized by the press and the public as a parody and criticism of the original song." Responding to that claim, Beastie Boys have now said that they simply contacted the company to discuss the matter, because while they agree with the sentiment of the commercial, they do not allow their music to be used in any adverts ever. In fact Adam Yauch who died recently felt so strongly about this that he had it written into his will.  In an open letter to the company, published in the New York Times, surviving members Mike D and Adam Horowitz said: "Like many of the millions of people who have seen your toy commercial 'GoldieBlox, Rube Goldberg & the Beastie Boys', we were very impressed by the creativity and the message behind your ad. We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering". However, they continued: "As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song 'Girls' had been used in your ad without our permission, YOU sued US".

Two of the world's biggest news agencies, Getty Images and Agence France-Presse, have been ordered to to pay $1.2 million to a freelance photojournalist for their unauthorized use of photographs posted to Twitter. The jury found that AFP and  Getty wilfully violated the US Copyright Act when they commercially used photos Daniel Morel took in his native Haiti after the 2010 earthquake that killed more than 250,000 people and which had been made available to the public through social media. U.S. District Judge Alison Nathan had already found the two agencies liable for infringement and the trial was to set the level of damages - the jury set the maximum allowable despite the fact AFP had argued the the editor who took the pictures made an innocent mistake, and had thought the pictures were available for reuse. AFP argued that the Twitter user who posted Morel's photos without attribution bore responsibility for the error. 

Hit Me With Your Rhythm Stick is by Ian Drury & The Blockheads

The FatCat CopyKat - it's all about the money

Loads of money!

The economic contributions of U.S. copyright industries reached new heights last year, for the first time contributing more than $1 trillion to the USA's gross domestic product and accounting for 6.5% of the nation's economy. A new report from the International Intellectual Property Alliance, a private coalition representing the Motion Picture Association of America, the Recording Industry Association of America and others in the computer software, video games, books, newspapers, periodicals, radio, TV and journals sectors, says those industries contributed $1.01 trillion in value-added services to the nation's GDP in 2012. The study is apparently based on data from the Bureau of Economic Analysis and other government statistics.

A group of news agencies have reached an out-of-court settlement with a Croatian websitfor more than 50,000 Euros after the wesbite lifted their pictures and re-used them online without credit. The ten independent agencies, all members of the National Association of Press Agencies (NAPA), sued www.tportal.hr after finding photographs had been lifted directly, mostly from Mail Online, with no attempt having been made to obtain a licence or pay for usage. One image agency had invoiced and sent numerous reminders for the usage, but was constantly ignored.

The Hollywood Reporter tells us that the Russian government plans to form an agency in charge of copyright observance amid a series of moves aimed at cracking down on piracy. The Economic Development Ministry has submitted plans for an Agency for copyright control, which is to be formed on the basis of the existing Patent Agency, but will have much broader authority and would be report directly to government. 

Even more money

TorrentFreak reports that the film and music industries, in the guise of the MPAA and the RIAA, have commented on the U.S. Government’s Internet Policy Task Force' Green Paper. Among other things, the group proposed a “recalibration” of penalties for file-sharers, which currently reach $150,000 per shared file. The MPAA and RIAA, among others, have now responded to this suggestion, stating that the current punishments are proportional, and needed to deter others from file-sharing and related offences. More here.



Now here's an interesting story. It seems the company behind blogging website Wordpress is going to bring two actions under s512(f) of the USA's DMCA for receiving allegedly  bogus DMCA notices. Automattic, the company that runs the super popular blog hosting platform WordPress.com, has filed two separate lawsuits against third parties for "knowingly materially misrepresenting" a case of copyright infringement against two Wordpress blogs: Techdirt reports that 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 is against the the actions of the British anti-gay campaign group Straight Pride UK whose organisers gave an interview to student journalist Oliver Hotham, then decided that they didn't like the fact that they "sounded like idiots in the interview", and tried to use the DMCA to take down the article which included the quotes they had willingly given to Hotham in a 'press releaase'.  See our previous blog here. Automattic are seeking damages under s512(f). Automattic's General Counsel Paul Siemniski explains that the company, who were criticised for the Straight Pride UK takedown,  feels that it needs to step up and protect freedom of expression and fight back against DMCA abuse: Hotham, whose original interview revealed Straight Pride UK's admiration of Vladimir Putin "for his stance and support of his country's traditional values", says he is "extremely happy" with Automattic's decision.

We must be brief today - its the 50th Anniversary Dr Who show on British TV this evening and the CopyKat must prepare.  We even have friends who have even paid to go to cinemas to watch the (free to air) transmission live on the big screen. The episode, The Day of the Doctor, will also be broadcast in more than 90 countries at the same time as it airs on BBC One tonight. The 50th anniversary adventure stars Matt Smith, David Tennant and John Hurt as different incarnations of the Doctor.

A blogger investigates the TARDIS

And talking of Dr who, as far as we know there has been no resolution to the copyright claim against the Doctor's time travelling 'Tardis' - but it's all good publicity for the BBC (amazing coincidence the timing of that lawsuit  ..... wasn't it ......). In fact the BBC have been sued over the Tardis before - back in 1996 by the Metropolitan Police - and let's not forget the exterior of the Tardis IS a traditional blue London police box: The boys in blue brought a legal action to challenge the BBC's trade mark application for the shape of the box and the name TARDIS. The BBC Prevailed in 2002 and the hearing officer remarked that even if the police had built up any reputation in the blue police telephone boxes (and back in 1953 there were 685 in London), it would have only been in the area of policing and law enforcement and would not have extended into the goods and services which the BBC had applied to use it for adding "I bear in mind that for most of the period since the police call box was taken out of service, the only sight the public at large would have had of this item of street furniture has been in the TV programme Dr Who, provided by the BBC where it is a Tardis, a fictional time travelling machine with the external appearance of a police box."