When NOT to File a DMCA Notice
By Jonathan Bailey • Jan 13th, 2010 • Category: Articles, DMCA, Legal Issues
  photo credit: shareski |
Ben Sheffner, on his excellent Copyrights and Campaigns blog, outlines the story of an Australian photographer Ted Szukalski, who took a picture of a picture of a homeless man shining a woman’s shoes. Much to his understandable chagrin, the photo was later altered, though by whom seems to be unclear, to put Barack Obama’s face on the shoe shiner and Sarah Palin’s face on the woman.
This led the photographer, to file a takedown notice with a blogger, Patrick Frey of Patterico.com, to have the image removed. This despite the fact that Frey was neither the original one to alter the image and was, in fact, using it to discuss the stir the image had caused.
Frey has since refused to remove the post and has actually posted the image again in the discussion about his refusal to remove it.
This case is a classic example of a DMCA notice gone wrong. Such notices are designed to compel hosts and search engines to disable access to infringing material to keep their safe harbor, however that was not the case with this notice.
As Sheffner points out, the problems with the notice are legion (wrong party, strong fair use case, lack of protection under safe harbor, etc.) but it makes it clear that there are many times where the DMCA is the wrong tool to use.
So, with that in mind, here are just some of the more common situations where you will probably want to think twice before filing a takedown notice.
1. Not a Copyright Dispute
The DMCA and its safe harbor provisions are for copyright only (Hint: It’s what the C in DMCA stands for). It can not be used for dealing with libel, privacy or other issues. Just because someone says things that are untrue or are invasive, doesn’t mean the DMCA can be used to silence them.
2. Not an Infringement
Don’t send takedown notices on cases that have strong fair use arguments or may be allowable under your license. Also, make sure that the elements that are being copied are copyrightable at all.
You don’t want to send a notice only to find out that the other party wasn’t infringing at all. Be knowledgeable of the law and know where the boundaries lie.
3. Copyright Isn’t Why You Are Upset
Sometimes a use of your work might be technically an infringement, such a fan fiction, but you aren’t mad about the actual infringement, but the specific nature of the use. Whether its a mean-spirited use, one that is getting a lot of attention or something else altogether, you need to have an even hand with your copyright policy.
Silencing only your critics, for example, not only risks a firestorm but will upset those you wish to allow to use your work. It is important to make your license terms clear, for everyone’s benefit, and accept the good with the bad.
4. You Risk the Streisand Effect
The Streisand Effect is a term for when someone tries to censor a piece of information, through a variety of means, and only ends up drawing more attention to it. This is very commonly seen with dubious DMCA notices.
A legitimate and fair DMCA notice rarely results in such an effect but be wary of communities and sites that flaunt the law deliberately as they may latch hold to such a notice, no matter how valid it is.
5. Not a Host/Search Engine
It’s important to note that the DMCA’s safe harbor provisions only protect hosts and search engines from liability for content posted at the direction of users. Users themselves are simply liable, as Sheffner points out. You should not send a DMCA notice to a user, that is territory for a cease and desist letter.
6. Not a U.S. Company
The DMCA is an American law. It only applies to servers within the country. Though other nations, including the EU, Australia and New Zealand have similar laws, they often have different requirements and need slightly different notices. With other countries, there is no such obligation at all.
7. You’re Not the Copyright Holder
Only the copyright holder or an authorized agent can file a DMCA notice. If you aren’t either, you can alert a host to a potential infringement, but you can’t file a formal notice. You can, if you wish, also alert the copyright holder to the abuse and help them take action.
8. Better Solutions Are Available and Untried
Finally, if you have other alternatives to work out the solution more amicably, you should try those first. Yes, with spam blogs and other sites that misuse content and work to separate themselves from their owner, a DMCA may be your best first shot, however, in most human cases, at least trying to work it out with the other person.
Not only can you usually find a better solution, but you often times make new friends and contacts that way as well.
In short, the DMCA should be a last resort.
Reasons to Be Careful
There are many good reasons to be very careful when filing DMCA notices, but here are some of the more important ones to consider.
- Legal Issues: §512(f) provides very severe penalties for those who knowingly file false DMCA notices. See also Open Policy Group v. Diebold.
- Weakening the Law: Too many invalid DMCA notices will not only turn public opinion against the safe harbor system we have (even more than it already is in some circles), but also could force the law to be weakened or altered, limiting its usefulness.
- Reputation Damage: Finally, even if there are no legal consequences to your action, filing bad DMCA notices will inevitably hurt your reputation, is has many companies and organizations that have done it repeatedly.
Bottom Line
To be clear, I’m not saying to never use the DMCA. It is an important and valuable tool. However, it is critical to pause and make sure it is the right tool for the job.
In the end, if you have any doubt that the notice you’re filing is proper, don’t file it. It’s that simple. Mistakes do happen from time to time, but if you are sure and careful, they can be kept to an absolute minimum.
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Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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Hello Jonathan,
indeed this is an informative article. If this and Ben Sheffner's article were available to me before I emailed Patrick Frey of Patterico.com I would not have done the “fools errand” as Ben puts it. I have extensively explained rationale behind this action on Patterico.com and I hope majority of your audience will see it in a more complete light.
I'd like to see an article, which would elaborate on what I should have done. Here I am, a photographer taking an image. The image get modified by unknown author and is “virally” distributed in USA via email, in many cases with my name attached to it (there are still copies of that image on the internet. Later due to a news story the image starts being published by news site and subsequently by blogosphere. No one explains or even acknowledges this image is an unauthorized derived work (plagiarism), no one shows as much as a link to original image. As a result I get called racist. There is no distinction in viewers/readers/email recipients eyes between the plagiarist and me.
So, at first, I left comments on many of these sites pointing to this fact. I have also sent emails to various website owners. In some cases I get pointed to DMCA form. I guess since those were effective it may have put an idea in my mind that is the way to proceed about this. In a way I am glad Patrick, Ban and you commented on it. Firstly, I know now this is not the way to do it. Secondly, I have received some understanding (a reversed Streisand Effect). Yes, I have been criticized for the approach, but I have also made many people see I am not the author of what in many people's minds is a racist photograph and hopefully it shows I had no ill intend by sending these notices other than trying to clear my name of racist accusations . At no point did I try to censor people's opinion on the photograph.
First off, to be clear, you have nothing but my sympathies for what happened to you and your work. I know its frustrating. You didn't ask for this or deserve it.
As far as what I would have done in your position, it's a difficult question in part because it is a difficult situation.
Personally, for me, I would have approached the Webmasters involved and asked them personally, without a DMCA or C&D letter, to either remove the image or add a disclaimer that you did not create it. Even though you said you did that, you didn't say if you asked for a disclaimer that it was not your work. I think that might have been more useful in this case.
You are right that you do not deserve to have your reputation besmirched by a random photoshopper but this approach would have also spared the headache of a false DMCA notice.
Most, I can imagine, would have complied with this request. Bloggers tend to be willing to make corrections but are hesitant to remove works.
Likewise, I would have issued statements on my own saying that the revised image is not yours. and publicize them greatly.
Finally, since you are an Australian, you have no requirement to register your work with the U.S. Copyright Office to file suit. I would have at least looked at finding an attorney who could research this matter and find out who the original photoshopper is and target them. As Sheffner pointed out, and I largely agree, their fair use argument is much more weak than the sites that have discussed it.
That's just my short take. It's a difficult situation though and there are a lot of wrong answers but no clear right one. In the end though, your reputation is more important than the damage to this one work so I would focus on that more.
Once again, you have my sympathies and if there is anything I can do to help, let me know.