A Strange Anecdote of DMCA Abuse?

I was told by a colleague who attended the Section 512 round tables in San Francisco that a consistent response from representatives of the OSPs was that anecdotes about harm to rights holders from piracy or YouTube-style infringement are not sufficient.  “We need data,” was apparently an oft-repeated imperative.  This is funny because that same crowd loves anecdotes about abuse of DMCA, and well they should because the anecdotes are likely to be more compelling than the data on that matter. But sometimes, the anecdotes are downright bizarre, as with this story reported yesterday in The Guardian by Alex Hern.  It is in fact the story of the DMCA abuse that wasn’t there.

At first reading, one assumes that this is a typical story about some non-copyright holding entity misusing the DMCA in order to attempt to censor criticism of its business.  In a nutshell, a UK citizen named Annabelle Narey had a bad experience with a UK building company called BuildTeam, and she consequently posted a negative review on a parents’ news and comment site called Mumsnet.  Her initial post prompted a thread of other users sharing their own bad experiences with the same company, which apparently prompted BuildTeam to try to have the negative reviews removed, even initimating possible defamation.  But then, Hern writes this:

“Mumsnet received a warning from Google: a takedown request had been made under the American Digital Millennium Copyright Act (DMCA), alleging that copyrighted material was posted without a licence on the thread.

As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.”*

Initially, this description sounded odd to me for several reasons, not the least of which is that it would take about 30 mintues or less for Mumsnet to review 126 posts of this nature, which are usually quite short.  More than that, though, under the DMCA, a properly filed notice has to identify the Allegedly Infringed Work (AIW) and state under penalty of perjury that the filer is the owner, or agent of the owner, of that work. As such, what work was the filer alleging had been infringed in a thread of comments?  Because if the notice just said something as generic as “contains infrininging material,” then the notice should have been rejected by Google.  More confusing still, as Hern goes on to describe, the filer of the take down request wasn’t even BuildTeam.  Who it was is not quite clear.

Hern describes a strange sequence of events in which a guy named Douglas Bush plagiarized Narey’s original post, published it on a “spammy website,” and also pre-dated the post to a day three months prior to the day Narey had originally published it.  Then, it appears that the registered owner of said spammy website, a Mr. Ashraf of Pakistan, may have been the one to send the DMCA takedown notice pertaining to the original thread.  It sounds a bit like a ham-handed attempt at a copyright scam; but suffice to say, there is nothing legit about the take down request, and Google should not have processed it at all. Moreover, under these circumstances, Mumsnet should not have had any fear of restoring the material via counter notice, as Hern suggests they might.  He writes the following:

“Whoever sent the takedown request, Mumsnet was forced to make a choice: either leave the post up, and accept being delisted; fight the delisting and open themselves up to the same legal threats made against Google; or delete the post themselves, and ask the post to be relisted on the search engine.”  

What?? There is no such thing as “whoever sent the request.”  This DMCA filing clearly fails to meet statutory requirements, and the apparent sender is apparently in Pakistan! Mumsnet should have had no concern regarding litigation from anyone as a result of restoring this material. But then, Hern reports this:

Mumsnet deleted the post, and asked Google to reinstate the thread, but a month later, they received final word from the search firm: “‘Google has decided not to take action based on our policies concerning content removal and reinstatement’ which (it turned out) meant that they had delisted the entire thread”. 

Again, what in blazes is going on in this story?  Because it looks an awful lot like Google just plain messed up. Yet, for all its muddy details, Hern is presenting this tale as a prime example of how copyright becomes censorship on the internet, blaming the law itself for his own conclusion that “ … sites like YouTube, Twitter and Google … are forced to develop a hair-trigger over claims of copyright infringement, assuming guilt and asking the accused to prove their innocence.”

That’s a familiar refrain that rings hollow with legitimate rights holders who make proper use of DMCA.  Meanwhile, Google has often fought tooth, nail, and elbow against delisting search results, asserting past refusals to do so as a matter of principle. And that’s in cases involving clearly infringing links.  Why is the search giant, as Hern states, suddenly on a “hair trigger” to delist this little thread of consumer comments about a building service, where a copyright infringement is highly unlikely to exist?  And why should rights holders who have an interest in legitimate take down requests continue to have those interests denigrated by the general characterization that DMCA is so often used as a tool for censorship?

The potentially compelling part of this story is the matter of what Mr. Ashraf was actually intending. If he was the one to publish someone else’s post as his own and then use DMCA to attempt to assert an infringement claim against the original, what did he hope to achieve?  Is this a new kind of scam, general mischief, or a third-party exercise in censorship? It seems to me all the parties involved, including Google, should want an answer to this question, rather than settle on the familiar but misguided conclusion that copyright itself is the villain.


*It should be noted that Mumsnet does not use an internal search tool for its comment threads, but in fact uses Google Search. This would appear to be a factor in this story.

© 2016, David Newhoff. All rights reserved.

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9 comments

  • Mumsnet is regularly screwed over by teenagers and manchildren. Those running the site have been SWATed, and the site regularly get DDoS attacks. One of the little buggers was arrested yesterday.

    http://www.theregister.co.uk/2016/05/23/mumsnet_hack_charged/
    http://www.bbc.co.uk/news/uk-england-surrey-36360234

  • They need proof? Data? 180 Million Take Down Requests to Google for You Tube alone is not suitable data as evidence? And why do they even think they are in a position to make that demand? The Constitution says laws shall be made to give creators’ EXCLUSIVE rights to their work. That means if You Tube or any other party wishes to use the work of a creator, than that should only happen with the consent of that creator. Period. I am not really sure how hard that is to understand. The fact that creators are even asked to present data shows how badly current law is out of touch with the Constitution.

    • Sam Flintlock

      1. Mumsnet aren’t an American site, so aren’t under the US constitution.

      2. Your interpretation of the constitution is so inflexible that it would mean that David is out of line for his limited quotation of the Guardian writer in his article. That’s absurd.

      3. Your reading of the Copyright clause is nowhere near as self-evident as you seem to think. If we’re going to be literal about it (which you seem to want to be) it only covers the writings of authors and the discoveries of inventors. So music and film aren’t protected. That’s obviously ridiculous, But it’s the logical result of your position.

      4. You’re lining up with people like Nick Steiner of Straight Pride UK in your support for active DMCA abuse.

      David –

      This would be one of those rare cases of an actual copyright maximalist I think. So they do exist.

      More generally, Google are behaving in a very specific way at the moment. On one hand, they are definitely being very obstructive on cases like this, while also doing nothing to deal with the widespread copyright infringement on YouTube. They’re also rejecting some counter-notifications out of hand without justification, From their tos:

      “In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.”

      And, as we know, they’re also making near impossible for smaller creators to get their work taken down despite blatant copyright violations.

      There’s several possible explanations for this I can think of. The most obvious is that they’re trying to force anybody who wants them to take copyright violation seriously into a financial obligation. But I’m also starting to wonder if they’re deliberately stopping some legitimate counter notifications to try and undermine the whole concept of DMCA notices. At one point I would have said that was too conspiratorial, but now I’m not so sure. This latest case would definitely fit with that pattern.

      • Most of their users are filtching content from amateur and small professional creators especially images. YT videos may be tagged for copyright violations with regards to the music, but most of them are also violating the images that the music is playing against. Sony music may have contentid against the music, but those images in the slideshow aren’t theirs.

        I had a discussion with William Patry some years ago (google copyright lawyer) where he maintained that anyone not prepared to sue, or actively exploit copyright had no right to copyright protection. Interesting I thought at the time.

  • We have loads of data, millions of take notices that have been reposted. Based on the articles of read from Masnick, Torrent Freak and others, the anti-artists’ rights rants show desperation and a ‘grasping at straws’ mentality.

    We have been writing about the validity of ‘stay down’ for over two years and more than covered why it needs to happen. What Google/Youtube do with Content id and taking stuff down is their program. It wouldn’t come as a surprise if they overuse Content ID to support their case for ‘take down’ abuse.

    Lastly, the confusion and lack of knowledge about copyright is palpable. One of the misinformed Fair Use commenters that came after one of my posts, after I referred to Fight for the Future as a cyber-terrorist organization, said that as a reviewer he was doing just what Roger Ebert had been doing. Clearly without the knowledge that Ebert’s producers needed to clear clips, etc. from the studios before broadcasts.

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