Diehl, Fortuny, and what to do when your blog gets DMCA'd

The lawsuit being brought by Jeff Diehl and the EFF against Michael Crooks is big news since it involves the misuse of everybody's favorite piece of copyright legislation, the DMCA. It's easy to dislike the DMCA for how it can be used to stifle speech and creativity, but this post is an offering to shine some light on the nasty bits of DMCA Section 512 and to show everyone that they're really not that nasty. While DMCA 512 can be abused, as in the case of Crook, it also provides users the means to protect themselves from erroneous takedown notices though the counter notification process. I have also posited the idea, based on a recent case from Pennsylvania, that obeying a takedown letter could be interpreted as a binding contract not to republish the material. In dissecting this case, I have realized that this dispute provides the average blogger a great example of what and what not to do when a DMCA takedown is received. It's also helpful in figuring out the proper way to get infringing material removed. Hopefully interest in this dispute will lead to greater awareness of these details and how the DMCA takedown process works. This post hopes to do just that. After all, knowledge is power.

Michael Crooks v. Jeff Diehl

First some background on this dispute. In September, a man going by the name Jason Fortuny went on Craigslist posed as a woman and put up a post looking for some BDSM sex back in September. He proceeded to post the responses - which included some sexually graphic pictures - on the wiki Encyclopedia Dramatica. A few weeks later, a man named Michael Crook mimicked Fortuny and put up his own ads on Craigslist, again posed as a woman, and posted the comments on his website craigslist-perverts.org (a site he created solely for this purpose). Crook has a history of these kinds of agitating shenanigans, having started forsakethetroops.info to "call attention to what I feel is excessive pay and benefits given to our military" and to other gripes about American soldiers. For this he managed to get onto Hannity and Colmes and was berated by Hannity (more on the link to this clip at the bottom). So when a blog called 10 Zen Monkeys used an unflattering screenshot of Crooks from his Hannity and Colmes appearance in a post critical of Crooks, he DMCA'd their ISP and sent 10 Zen Monkeys editor Jeff Diehl a letter demanding that the picture be taken down, claiming that 10 Zen Monkey's posting of the picture violated his copyright. A day after removing the picture Diehl switched ISPs to Laughing Squid (which has good coverage of this whole affair since Diehl is friends with the owner) and put the original article with picture back up. Crooks responded by filing a new DMCA takedown request with Laughing Squid, again demanding that the picture be taken down. Diehl once again relented, but replaced the picture with a link to another copy of the same picture, which prompter another DMCA notice asking that the link be taken down (this description of the affair is based on the complaint, which differs from Diehl's own recollections). Laughing Squid notified Diehl of the notice and he contacted the EFF for legal help. Diehl has since filed suit against Crooks for "misrepresentation of copyright claims under the DMCA" (read the complaint and all the other documents).

Whew... ok, let's be clear on one thing. Crooks does not own the copyright to the image, FOX News does.

Who is an Authorized Agent

The Digital Millenium Copyright Act Section 512(c) provides not only a series of "safe harbors" for ISPs (under the statute, "ISP" has a broad meaning of internet service provider, which includes entities such as an internet hosting service and entities like YouTube that provide services over the internet) wherein they may avoid legal liability for copyright infringement on their networks, but also sets out a detailed way in which copyright owners can have infringing uses of their works taken down. These are the notorious "DMCA takedown notices" and is the process by which, for example, broadcasters get clips of their shows removed from YouTube. Specifically, Section 512(c)(3)(A)(vi) provides that such a takedown notice must include:

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

It really can't get much more clear than that. Unless FOX News has authorized Crooks to act on its behalf, Crooks has clearly misrepresented himself. Most bloggers shouldn't run into problems with this section since if it's your picture (that is, you took it) or writing that is being misused, you own the copyright. If a work copyrighted by someone else is embedded in your post, and your post is ripped off, remember that you are asking that your material be taken down and that it happens to include someone else's work as well. You still own copyright in what you did, but if you're wondering if you've done enough around the other work, consult an attorney.

Having a Good Faith Belief of Infringement

Even assuming that Crooks is authorized to act on FOX News' behalf, Section 512(c)(3)(A)(v) requires the takedown notice to include:

A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

The law recognizes "fair use," as codified under 17 USC 107, which includes criticism, comment, and news reporting as acts that do not constitute an infringement of copyright. In order to ensure that the DMCA is not misused (ha!), Section 512(f) provides that:

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.

This section effectively prevents a party from making spurious copyright infringement claims. The voting machine company Diebold lost in court on this point when it filed a DMCA takedown notice against a student group that posted leaked internal documents revealing flaws in their electronic voting machines. The judge said in his decision that "no reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were protected by copyright..." because they obviously newsworthy. The section also prevents a person from erroneously claiming that the material is not infringing when a reasonable person would see that it is. Thus, in order to file a DMCA takedown notice, you have to be pretty sure that copyright infringement is occurring.

The cost of a mistake on this point is that the mistaken party has to pay the other side's attorney's fees, which could be substantial depending on who the opposing party is and who their attorneys are. Imagine the kind of legal bill a company like Universal could rack up and imagine having to pay it off.

It seems equally clear that the use of Crooks' picture would be covered under "fair use," especially considering that he has put himself forward as a public figure (appearing on Hannity and Colmes for his site forsakethetroops.com) and for his subsequent newsworthy acts on Craigslist, and that the nature of the 10 Zen Monkeys blog post was criticism and commentary.

A point that is interesting is that misrepresenting that one is authorized to act in 512(c) makes one liable for perjury and misrepresenting that copyright infringement is occurring under 512(f) makes one liable for attorney's fees. A straightforward reading of the statute indicates that the penalty is much less for misrepresenting one's authorization than the activity going on, meaning that it's "better" to make a random claim over someone else's work than it is to make an overreaching claim over your own copyrighted material. Diehl's complaint is seeking damages under 512(f) because he has Crook caught under both sections, since he both misrepresented his authorization to act and whether the use was infringing.

The Takedown Process

Shoot First, Ask Questions Later
The thing to take away from this dispute is what the DMCA says on the takedown process itself. The DMCA promotes a "shoot first, ask questions later" response from ISPs upon receipt of a takedown notice. First, 512(c)(1)(A)(iii) obliges an ISP to "act expeditiously to remove, or disable access to, the material" upon receipt of a takedown notice if the ISP is to maintain its status within the "safe harbor" and avoid liability for the user's acts. If the ISP doesn't, it might be liable as a contributory infringer. Second, Section 512(g) says that an ISP can't be held liable for taking down a user's material, regardless of whether the material is actually infringing, so long as the ISP follows a process specified by the statute. What people don't necessarily realize is that a DMCA takedown notice is merely a letter from the purported copyright owner to the ISP claiming infringement. One does not need accept what the letter says.

Takedown Notices and Counter Notices
The counter notification process follows a "last to speak wins" process, where the ISP is only obligated to listen to the last party to speak on the issue. Section 512(g) says that an ISP is not liable to a user for wrongly taking down material pursuant to a DMCA takedown notice if the ISP:

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.

Whether or not an ISP is required to notify a user that a takedown notice has been initiated is debatable since "reasonable steps" allows that ISP to claim that it could not locate or sufficiently identify the user in question. The odds are that a user would receive notice from their ISP (eg. by email) if a takedown notice was in the works, but if not, that user might want to find out whether its ISP may be liable if it turns out the takedown notice was bogus.

Another point is that there's no reason under the statute why the ISP can't notify the user of the takedown notice before removing the material. The requirement to "act expeditiously" doesn't preclude this option. Ethan Ackerman made this point regarding BB's posts on the dispute.

The user may elect to send a counter notification to their ISP protesting the takedown letter. Under 512(g)(3), such a letter must be sent to the ISP's designated agent (check your ISP's website) and must include:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

A user needs to know that by filing a counter notification, he or she has made themselves available to be sued in Federal District Court. Before the counter notification, the copyright owner may or may not know the identity and location of the user. If the user's identity is unknown, the easiest thing for the copyright owner to do is simply to ask the ISP to take down the material. However, once the user submits their name, address, and consent to jurisdiction in Federal Court, the barrier to being hauled into court have dropped significantly. If the user isn't known and no counter notification is sent, then we are getting into the realm of the RIAA suits against file sharers and it seems that most copyright owners do not avail themselves of subpeoning ISPs to find users.

And as said before, a bogus claim that the material is not infringing will bring a user under Section 512(f) for misrepresentation.

Once the counter notification is sent to the ISP, it must forward it to the person who filed the takedown notice. At this point the ISP must replace the removed material in no less than 10, but no more than 14 days. Only if the person who filed the original takedown notice tells the ISP that it "has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material" will the ISP be required to keep the material offline. It's worth noting here that anyone Once this last notice has been sent from the takedown notice sender to the user, the whole affair has effectively been moved into Federal court and is out of the ISP's hands. Of course, when I say the "ISP must" it doesn't mean that the ISP can't behave otherwise. It only means that if the ISP wants to remain immune from suit for copyright infringement itself, it has to take these steps. "Must" then becomes "will" because no ISP would rightly want to get involved in these kinds of cases.

Jeff Diehl's Response to the Takedown Notices

Getting back to the lawsuit, it appears that Diehl was sent 3 different takedown notices and took the material down all 3 times. At no point did Biehl send a counter notification to his ISP. Instead he picked up and moved to a more friendly ISP in Laughing Squid, presumably because he's friends with its owner and thought his ISP would be supportive of his position. A reader might be inclined to think that Biehl would have been rather helpless without his connection at Laughing Squid, but the fact is that the same DMCA that is accused of being so draconian nevertheless gives users like Diehl some ability to defend themselves. It's just as easy for Diehl to fire off a counter notification as it is for someone like Crook to "use the [DMCA] to stifle free speech," as Diehl accused in the post linked above.

The Notice-Counter Notice regime shares much with a simple game of chicken: the first to wuss out loses. If Diehl was so convinced of his claim, he could have sent a counter notification and waited to see if Crook would have returned with a lawsuit. If Crooks balked, then Diehl's material would have been put back online. If Crooks sued, well, then Diehl wouldn't be much farther away from where he is now. Crooks would also have had to think much harder about whether to pursue his claims before a real judge, which can get expensive and even more so if the claim really is bogus. A party like Universal or the RIAA might not think twice about filing a lawsuit, but the economic cost/benefit analysis is a bit different for an individual, even for someone like Crooks.

All in all, Diehl did not avail himself of the takedown notice procedures outlined in the DMCA. I do not know how this will effect his case against Crook, but the fact does appear relevant. A plain reading of the statute does not seem to support the contention that a person who falsely files a takedown notice can be taken to court immediately following the issuance of such a notice. This would seem to make the whole idea of a counter notification process pointless. The Diebold case also appears to have failed to followed the DMCA's full takedown procedures, but then again, Diebold withdrew from its infringement claims and issued retractions of its takedown notices.

The biggest problem with the takedown procedure is that its default position is one that tends to assume that copyright infringement is taking place. If an ISP were to contact users of DMCA takedown notices before removing the material, this assumption isn't that strong, but most ISPs don't behave this way. As is, once the ISP gets a takedown notice of any sort it will usually just pull the material down and let the user know in due course.

The DMCA process thus essentially grants a copyright owner about a 10 day window in which the material won't reappear once a takedown notice is sent. If the process laid out in the statute is followed, and a counter notification is sent to the ISP, the material can be reposted without further issue after 10 days (this would be handy if a copy of a new album makes it online a few days before its official release, assuming the RIAA didn't care that it was out there afterwards). For some, this required down time of 10 days is too much, and I agree, especially when talking about protected forms of speech. If important documents surfaced within 10 days of an election, for instance, it would be an infringement of free speech for a "copyright owner" to force the ISP to remove the material until after the election with no other recourse than a counter notification.

So I guess its just best to say that a user has an option when a DMCA takedown notice comes to its attention. Either fire off a counter notification or head down to court and get an injunction against the notice's issuer.

A Takedown Notice as a Binding Contract

A thought that will really rile up some people is that a court could find that abiding by a DMCA takedown notice could constitute a binding contract prohibiting the user from reposting the removed material. Though not dealing with a DMCA notice, a Pennsylvania court found that a doctor's demand that potentially defamatory material be taken down off a patient's website, and in return the doctor promised not to sue, became a binding contract once the patient removed the material at issue. In this case, the doctor was a Lasik specialist and the patient was left legally blind because of the doctor's malpractice. The court said that the patient was in breach of his contract with his doctor when he reposted material critical of him after their previous agreement.

That obeying a takedown letter could be a binding contract may be far-fetched in the DMCA context because both the user, if the user is contacted and decides to follow the letter, and the ISP, if the user fails to respond, may be responsible for removing the material and it would seem doubtful that the ISP would or could be consenting to such binding terms. The idea may also be wrong for many other reasons, but it does not appear that the DMCA is suited to handle situations where one user continually and repeatedly posts allegedly infringing material, is sent a takedown notice, abides by the takedown notice, and then posts again. At some point a court surely could find that the takedown process is also like something else, such as the formation of a new contract between the parties. Funny enough, if that were to happen here, Diehl would surely lose on this point.

So What?

In the end, the whole sage between Diehl and Crooks serves as a great snapshot of the state of user generated content online in terms of the DMCA. First, the DMCA makes it really easy to suppress anything relating to copyright infringement online and gives ISP an incentive to go along. Second, those who publish online don't really know how the DMAC gives them some protection. After all, if you're ignorant of your rights you can't very well exercise them and will thus continuously be taken advantage of. Third, it doesn't seem that ISP's even know how the entire DMCA takedown process is supposed to work since it appears that Laughing Squid did not even mention to Diehl that a counter notification was an option.

The lesson? If you're publishing online, especially if you make money doing it, but anyone who considers themselves a "blogger," you should be very familiar with Section 512 of the DMCA and Section 230 of the CDA (which covers defamation). This really is the dividing line between "amateur" content and "user generated" content, if you will. Amateurs are just goofing around. Users' interests and effort are slightly higher, and as such, they should become aware of their legal surroundings. There's no excuse: learn it, know it, live it.

The Video of Crook on Hannity and Colmes

Not only is Crook in trouble for misrepresenting authority over copyrighted materials in his DMCA action against Diehl, but Crook has been active in having clips of his appearance on Hannity and Colmes removed from YouTube. It seems as if LindaSoG at Something... and Half of Something takes credit for putting the clip up and claims that it received a notice from YouTube taking it down. SaHoS has provided access to the clip. Here's how SaHoS approached the copyright issue:

So, I've contact Hannity and advised that I have made the video available on my website and, unless and until the owner of the copyright, Fox News that is, complains of copyright violation, the video of Michael Crook's appearance on Hannity and Colmes will be available right here on lindasog.com.

I've also advised my host as to who owns the copyright to the video of Michael Crook's appearance on Hannity and Colmes. Any false claims or accusations will be dealt with accordingly.

That was written May, 2005, which leads me to conclude that there's probably a whole army of people pissed off at Crook for misusing the DMCA that he could be in even bigger trouble than from just Diehl. Perhaps it's best to remind people that it's best not to act out and draw attention to yourself for creating controversy when the Internet can quickly make you a star and universally loathed without providing an easy way to crawl back into the shadows.