photo credit: GypsyFae

No one has ever said that the DMCA notice and takedown system is a perfect one, but the majority of takedown notices are valid and are executed correctly. In my experience, careful filers will see about a 95%-98% resolution rate when using the DMCA properly.

However, since pretty much everyone is a copyright holder, anyone can use the DMCA and anyone can file a notice under the law. Unfortunately though, that doesn’t mean that everyone uses the law properly or intelligently.

With so many people misunderstanding copyright law and so many companies overwhelmed by the amount of notices they are filing, some of the notices are bound to be a bit south of brilliant.

To be clear, these are not notices that were filed for a political or vengeful reason, but rather, notices filed in clear error. This is why there’s no mention of the Church of Scientology, for example.

With that in mind, here’s my top 5 “favorite” DMCA fails of the last five years.

(Note and Update: In some of the cases below, it is unclear if the takedown was a full DMCA takedown or a content ID takedown. For the purpose of this list, we’re going to look at all copyright claims that resulted in the removal of or disabling access of the work under the safe harbor provisions, whether or not they were a full DMCA.)

5. Fake ID Takedown

Back in 2007, I wrote about a very bizarre DMCA takedown filed with Google over its blogspot service.

The story centered around Rachel Hyman, who then worked at a bar in New York City. When an underage patron had attempted to pass a fake ID, Hyman confiscated it and later scanned it and wrote about it on her blog.

The owner of the ID, who had apparently used their real picture, name and signature, objected to the use and first took the post’s comments. However, the would-be drinker eventually turned to filing a DMCA notice with Google to get the ID removed.

Hyman did eventually get the ID restored, but blurred out the face, personal information and signature when reposting it.

Why it Was Dumb

Like most fake IDs, the majority of the ID was merely a copy of a legitimate state ID, with the copyright in the content held by the state. The DMCA notice attempted to avoid this by focusing on the image and signature, which were copyrighted by the would-be drinker.

However, even then there is a strong fair use argument in their use as part of the blog post. There may have been privacy issues involved in the posting of personal information, but using a copyright law to resolve them is not appropriate.

In short, this was a case that required, at worst, a polite, humble letter asking personal information to be blurred, which was the eventual result, but only after a Internet firestorm.

In Defense

To be fair, there was actual copyrighted material involved but it’s clear that the DMCA was not the right lever to use. It isn’t fair to expect an underage college student to understand the nuances of copyright law in this area. However, one would hope they would learn before making such a filing.

4. Universal DMCAs a Baby

The Lenz v. Universal Case is well-known and ongoing but well worth repeating.

The story centers around Stephanie Lenz, a mother who posted a 30-second video of her baby dancing to Prince’s “Let’s Go Crazy” on YouTube. Though the music was barely intelligible, apparently Universal Music Groups filters detected and the the record label filed a DMCA takedown notice getting the clip removed.

However, the EFF took up the case and is helping Lenz sue Universal. That case is ongoing though the judge did recently rule that copyright holders need to consider fair use when filing DMCA notices.

Why it Was Dumb

Another clear fair use argument but, even worse for Universal, it was a clip watched only a few dozen times before the takedown but now has over 1 million views since it was restored.

In Defense

This one can likely be blamed, in part, on faulty filtering and a lack of human oversight. Universal is one of the most prolific DMCA filers and, for the most part, has targeted only actual infringements. However, that doesn’t really make up for the major error with this notice.

3. NFL Fumbles, Twice

In early 2007 (Seemingly a great year for these) Wendy Seltzer was a staff attorney for the EFF and the head of Chilling Effects. As someone very interested in copyright issues, she was disturbed by the National Football League’s overreaching copyright notice and posted a short clip of the copyright notice on YouTube and her blog.

Predictably enough, the NFL filed a DMCA takedown notice with YouTube and got the clip removed. Seltzer filed a counter-notice and had the clip restored by YouTube. However, 12 days later, the NFL filed another DMCA notice, which resulted in a second restoration.

No lawsuit ever came from the dual takedowns but some serious questions were raised about the takedown and counter-notice procedure and whether the NFL was in violation of the very law it was using.

Why it Was Dumb

In addition to the clear fair use arguments in favor of posting just the copyright notice, when Seltzer filed her counter-notice supposedly the NFL had the option of filing suit and seeking an injunction or walking away. Filing a second notice was clearly improper.

The NFL managed to fumble this one, not just once, but twice.

In Defense

I think it is more than possible to blame this one on a combination of an over-aggressive content matching system and poor record keeping on the part of the NFL and YouTube. Since these kinds of repeat takedowns for the same work seems to be less common, it’s likely safe to say that things have improved over all.

2. Michael Crook DMCA’s the World

In 2007, Michael Crook, up to that point best known for his “griefing” of men seeking sex on Craigslist, sent dozens of DMCA notices to various hosts over an image of himself regularly used to go with articles about him.

The biggest problem was that he didn’t actually own the image in question. It was a screenshot grabbed from an episode of Hannity and Colmes he appeard on. Fox News, the actual copyright holders, said they were not worried about the use of the image.

Worse still, there were clear fair use arguments to be made for using the image and at least some of the DMCA notices wound up being sent to Canadian hosts, for hom the DMCA did not apply.

Crook’s DMCA campaign was an unmitigated disaster. The EFF once again took up the case, this time compelling a settlement where Crook publicly apologized for the campaign.

Why it Was Stupid

While one might say this was merely an attempt by Crook to silence critics, something that is definitely true, Crook genuinely did believe that he had ownership of the image and was using the DMCA properly. This wasn’t a case of simple DMCA abuse, but a case of DMCA fail.

In Defense

Crook misguidedly believed that you can hold copyright in your own image, a surprisingly common misconception. While this doesn’t excuse the action, it explains why the EFF settled for an apology as there was little proof Crook truly acted in bad faith.

1. Warner DMCAs Lessig

The headline alone screams “FAIL” but it warrants explanation.

If you’ve looked into copyright at all within the past five years, you know who Professor Lawrene Lessig is, the at-times controversial founder of Creative Commons and author of many books on free culture. He is also an outspoken proponent of fair use and vocal opponent of DMCA takedown abuse.

So it probably came as a shock to him when, in 2009, Warner Brothers filed a DMCA takedown against one of his famous presentations on YouTube. The video was eventually restored but Warner actually repeated the act again earlier this year, resulting in another one of Lessig’s lectures having the audio removed. That one was restored as well.

(Update and Correction: To be clear and to be fair, the audio removal was, almost certainly, automated and not something Warner pulled the trigger on. Thanks to Mike for pointing this out.)

Why it Was Stupid

Filing a DMCA takedown against one of the best-known proponents of fair use is stupid enough, but considering both cases were a clear fair use make it even worse. Lessig’s presentations have likely the strongest fair use argument of anything on this list.

In Defense

Once again, as with the Lenz case, much of this is likely due to over-agressive matching technology and inexperienced DMCA filers. However, since the latest case happened just a few months ago, it’s difficult to say that they’ve learned and improved nor is it a good excuse in the first place.

Bottom Line

The good news is all five of these cases is that they seem to have been resolved with the content being restored, showing that the counter-notice system, when used appropriately, works well. Lawsuits have only been used in two of the cases but in neither case was it required to get the work restored.

Of the lawsuits, one is ongoing but seems to be leaning in the favor of the subject of the notice, not the filer, and the other was a settlement clearly in favor of the subject of the notice.

In short, I hope that these cases serve as a cautionary tale against those who are thinking about filing DMCA notices. If you’re unsure, it is best to consult someone else or, at the very least, do a good amount of research on your own.

Filing a takedown notice is not an act anyone should ever take lightly and this list is here if anyone needs any reaffirmation as to why.

Between large corporations filing DMCAs by the thousand, DMCA notices used to silence critics and other issues over the years, the safe harbor provisions have shown that, in the wrong hands, they can be a very dangerous tool.

Fortunately, most of the major cases where safe harbor was clearly being abused either have been or will likely be resolved by the courts in favor of those injured.

However, this has not stopped me from thinking of ways to improve and fix safe harbor, both to reduce the number of incidents where the system is abused and improve the overall efficiency of the process.

The Short List

Though, if I could get the ear of lawmakers, this list would actually be much longer, there are five improvements that I consider critical to making the safe harbor provisions work better and more fairly.

1. Transparency: I’ve spoken on this before but a gaping hole in the DMCA process is that there is almost no transparency to the process. The person who had the notice filed against them rarely sees the actual letter, there is no public examination of filings and accurate statistics are impossible to glean. Though sites such as Chilling Effects attempted to create databases for this purpose, hosts have not participated reliably and only a small percentage of notices are available for viewing. Greater transparency, both with the subject of the notice and the public, is needed both to discourage false notices and to better understand how the law is used.
2. Centralized Reporting: Currently, in most cases, the greatest challenge in filing a DMCA notice is not legal, but technical. Locating a host and finding their DMCA agent is complicated process that few are able to perform. The U.S. Copyright Office keeps a database of DMCA agents, but the information is both dated and difficult to access. A central means of reporting infringements to U.S. based hosts, if done with proper protections, would fix much of the problem. As it sits now, it is mostly large corporations, who can afford the research and legal expenses, that enjoy the benefits of the DMCA. Simplifying the process would allow more small copyright holders to protect their work.
3. Stronger Punishments for False Notices: Currently, the law states that anyone who misrepresents an infringement, either in a notice or counter-notice, is “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.” In most cases, this would be a very small amount and provide little motivation to sue. Though other laws may apply, the DMCA needs to bulk up the damages for filing a knowingly false notice or counter-notice.
4. Update For Modern Technology: The DMCA was written in 1998. Though it is a baby in terms of copyright laws it is already very far behind in terms of technology. Ten years ago, the term “online service provider” was much easier to define. Today, with sites such as Youtube and services such as Second Life, there is much less clarity and that has impacted the usability of the law as well. Hosts are now more than mere repositories for data and the law needs to reflect that.
5. Addition of Link Requests: The DMCA safe harbor system is a true one-trick pony, the removal of the allegedly infringing material. However, many copyright holders are happy to share their work, so long as they receive proper attribution. Give copyright holders the option of requesting a link request or other attribution instead of merely removing the work. Hosts win because they don’t have to disable user accounts, “infringers” win because their sites remain up and copyright holders win because they get links back to their original content.

Though most of these changes would be fairly simple to implement in terms of the law itself, they create technical and other challenges that will likely keep them from happening.

In the end, I am forced to admit that we are likely stuck with this outdated and easily-abused system that not only favors large copyright holders, but also ensures that the applicability of the law is almost always in doubt.

Conclusions

No matter what you may think of the safe harbor provisions, the truth is that, without the protections it provides hosts and other online service provides, much of the Internet we have today would not be possible. Without the legal security the law provides, many sites we enjoy would be too risky to be feasible.

Still, as laws go, it is a flawed one. However, it is not beyond all repair. Considering the other copyright legislation to have been cooked up by our Federal government, as well as other elements in the DMCA itself, the safe harbor provisions are easily some of the better rules.

Hopefully though, they can be improved and honed to eliminate many of the problems with the law and help copyright holders, hosts, search engines and users alike enjoy the rights and protections the law provides.

Images: Some of the images for this article were captured from YouTomb

photo credit: gruntzooki

Whenever I work with Webmasters and bloggers to help them file DMCA notices to get their content removed from copycat sites, they inevitably have a lot of questions about the law and how to use it. Though I am not a lawyer, I do my best to answer them.

However, to save time and effort, as well as help those who didn’t want to ask, I’ve compiled a collection of FAQs about the process with my answers to them.

Hopefully this FAQ collection will answer most of your questions about the DMCA process and, if it doesn’t, please feel free to ask your question in the comments below so it can be added.

What is a DMCA Takedown?

The Digital MIllennium Copyright Act of 1998, among its many parts, granted a “safe harbor” to Web hosts and search engines for infringement perpetrated by their customers. This means that hosts can not be held liable for any copyright infringement that their customers perform so long as they meet certain criteria.

One of the criteria is that they have to “expeditiously” remove allegedly infringing material when properly notified. A DMCA notice, also known as a DMCA takedown, is simply a letter that fulfills the requirements of the DMCA demands the removal of the work either from the search engine or the host.

Hosts, in order to preserve that safe harbor, need to comply with properly-filed DMCA notices.

Should I file with Search Engines or Hosts?

There are different schools of thought here. Some feel that, by filing with the search engines and waiting to file with the hosts until the search removal is complete, you can more completely wipe out an infringing site and prevent it from coming back.

However, search engines are slow to respond. Google can take several weeks and has complicated notification requirements. The quickest route is almost always to file directly with the host and have the work removed directly. It is also by far the easiest way, requiring just one notice, as opposed to five or more the other route.

Still, in most cases the decision is up to the filer. However, if the site is hosted in a country that does not have a takedown provision, search engine removal may be the only option.

I Am From Another Country, Can I Use the DMCA?

Yes. The DMCA allows all copyright holders, no matter where they are located, to use the takedown process. THe jurisdiction of the law is based upon where the site or search engine is hosted and the vast majority of both are within the U.S.

I have seen cases where a British man used the DMCA against an Australian plagiarist simply because the plagiarist hosted the infringing site with the U.S.

What if the Site is Hosted in Another Country?

The procedure for requesting a takedown was created by a WIPO treaty that mots countries are signatories to. However, many have not fully implemented the treaty and, as such, have no such procedure.

However, most countries that host a large number of sites, including the whole of the EU and Australia, have a process in place that functions very similar to the DMCA.

In many cases, sending a DMCA notice will work, even if the host is foreign. However, even hosts in countries without takedown procedures consider copyright infringement to be a violation of their terms of service. Therefore, even in those cases, you can often file an abuse report and secure removal of the site.

Can they Get the Work Restored?

One who has a DMCA notice filed against them has two choices for restoring the site. First, they can move to a different host and restore the site that way. Second, they can file what is known as a counter-notice and secure the return of the work.

A counter-notice is much like a DMCA notice but in reverse. Where a DMCA notice claims that the work is infringing, the counter-notice claims that it is not and demands that it be restored. Unless the person who filed the original notice files suit and secures an injunction, the work will be reposted after a waiting period.

Counter-notices, however, are extremely rare, especially if the DMCA notice was clearly justified. Such notices open up the person filing them to a slew of legal problems and, in general, it is easier to just move on.

Most cases where a site is restored involve moving the content to a new host.

How Many Should I Report?

There is no set answer to this. You can send as many or as few as you want. Just remember that any you don’t include you can always file another notice regarding later, in the event that the entire site isn’t taken down.

Still, most DMCA notices include between 5-10 items whenever a large list is involved. Some will include far fewer and others will do one item per notice. However, for the most part, it’s better to find a balance.

How Long Does it Take to for a Response?

The answer varies. Some hosts will act in less than 24 hours, others will take over a week. The more typical timeframe is between 48 and 96 hours.

However, it is important to note that hosts will typical secure removal of a work and then wait a day or two before sending an email to confirm the takedown. The reason is that they want to ensure that all cached copies of the work are cleared to avoid any confusion about the work still being up.

Will the Host Shut Down the Whole Site?

This depends on the circumstance and on the host.

If the site is largely composed of infringing material, such as with a spam blog, the host is likely going to just cancel the whole account. If the infringing work is just one or two items in a larger site, they will likely have owner of the site take down the specific items or, in some cases, surgically remove the works themselves.

Some hosts, such as Myspace, are known for surgically removing infringing works and almost never shut down an account on DMCA complaint. Others, such as iPowerWeb, frequently shut down whole sites.

To improve the odds of a domain being shut down, if you have more items to include in your DMCA notice, do so. If you reported the site once and the works were surgically removed while other infringing items remain, report the other works in a second notice.

Under the DMCA, hosts are required to ban repeat infringers from using their service.

Can I Get Into Trouble?

In order to file a DMCA notice you need to swear under penalty of perjury that you have a “good faith” believe that the work is infringing and that you are the copyright holder or an authorized agent.

If you file a knowingly false DMCA notice there are many potential legal consequences, some of them very dire. However, there is much debate and even conflicting rulings about what constitutes a “good faith” belief and where the bar is placed for meeting that test.

Generally speaking, though I am not an attorney, if you stick to cases of clear-cut copyright infringement such as scraping, plagiarism, etc. and avoid cases that raise fair use issues, the risk of trouble is relatively low.

Sadly, even cases where the DMCA notice was clearly false rarely result in as much as a counter-notice due to the legal uncertainties. This has enabled much of the DMCA abuse we see and has contributed to the reputation of the law as being one used to silence critics or stop fair use.

Is There Anything Else?

The DMCA is a powerful tool and should be used carefully. Be responsible with your plagiarism fighting and be cooperative with hosts as much as possible.

If you have any questions, feel free to write me either via the contact form or sending me an email to jonathan at plagiarismtoday dot com.

The proposal calls for Linen Lab to periodically publish, among other things:

• The number of notices filed
• The average delay in action on a DMCA notice
• The number of takedowns executed
• The number of counter-notices filed
• The number of takedown notices that resulted in a putback

But while the idea is especially good for Linden Lab, whose DMCA policies have been under pointed fire in recent months, it is an idea that can easily be expanded to all Web hosts.

It is an proposal that those both in favor and against the notice and takedown provisions of the DMCA will likely agree on and something that could bring a great deal more understanding the entire process of dealing with copyright infringement on the Web.

The Importance of Transparency

One of the major problems with the current notice and takedown regime is that a copyright holder can send in a DMCA notice and track the response to it but no idea where that notice fits into the larger picture.

How many notices does a host receive? How long, on average, does it take them to reply? How many do they discard for being incomplete? How many counter-notices do they receive? These are all questions that are typically closely-guarded secrets for Web service providers.

Many fear, rightly or wrongly, that providing this information could result in legal difficulties should a DMCA dispute go into the courtroom.

However, this has made understanding the full impact of the notice and takedown system almost impossible. With few hard facts, we are left largely with just anecdotal evidence of DMCA abuses and successes. Unfortunately, this evidence is completely useless when trying to understand the larger picture and obtain information upon which future policy may be written.

Even I, having personally sent hundreds of DMCA notices to many dozens of hosts, have only a tiny fraction of the DMCA picture. My experience is colored sharply the types of cases I have handled, all of which have been plagiarism-related, and the hosts I have worked with.

Despite the years I’ve spent working with the DMCA and hosts on copyright matters, my information is, at best, an educated guess. Sadly, that’s all anyone who does not work for a Web host can provide as we can not see what takes place behind the scenes.

It is a frustrating problem and, sadly, the attempts to address it have largely failed.

Past Attempts

The Chilling Effects database is probably the best-known attempt to provide DMCA transparency.

The idea was to provide a site that hosts and search engines could submit DMCA notices to and have them published publicly (minus personal information). This would, theoretically, allow researchers to access the database and draw conclusions about how the DMCA was being used.

The idea, initially, received a great deal of support and key Internet players, most prominently Google, promised to send all of their DMCA notices to the database.

However, the database has fallen into hard times. Few new letters are published, the most recent on March 5 of this year, and most of the ones that are published are controversial ones such as the Air Force DMCA notice and the recent moves by the NFL.

Google, in their auto-reply to submitted DMCA notices, still says the following:

“Please note that a copy of each legal notice we receive is sent to a third-party partner for publication and annotation. As such, your letter (with your personal information removed) will be forwarded to Chilling Effects for publication.”

But despite that, none of my notices in the past few years have appeared in the database. In fact, only one notice from me appears at all and it is from 2005.

Chilling Effects was used for one study back in late 2005. The report, authored by Jennifer Urban of the USC Gould School of Law, found that nearly 1/3 of all DMCA notices were improper in at least one way. However, as I pointed out in my original article, the use of Chilling Effects may have biased the findings due to the nature of the service.

Unfortunately, the full study has not been released as of this writing and is listed as being “forthcoming” on Urban’s faculty page.

Outside of Chilling Effects and anecdotal accounts from hosts, such as Dreamhost’s recent blog entry on the topic, there has been very little in the way of hard data about how hosts respond to DMCA notices.

A Proposal

Clearly there is a need for hard data in this area and the only people that can provide it are the hosts and search engines. Therefore, there is a need for a broad push to improve transparency in the DMCA process.

However, that being said, a database of actual notices, such as Chilling Effects, is likely not the way to go. Such a database would either be incomplete or too large to be practical.

However, even if we had nothing more than numbers and general information about policies, it would provide us a much better understanding about the DMCA process than what we have now. To that end, Merideth’s proposal is fairly sound.

The idea of encouraging hosts to provide regular updates as to their DMCA actions makes sense. It not only helps copyright holders understand how the the host responds to notices, but it helps users of the site know what to expect should a copyright issue arise.

However, I would make the following changes to Merideth’s proposal to make it more applicable to practical for hosts:

1. Make the Report Quarterly: Monthly may or may not be practical for Linden, but most Web hosts would be doing good to create just a quarterly report. That should be fine in most cases.
2. Eliminate Information That Isn’t Necessary: Initially at least, we should focus on the core information. That would include the number of notices received, the number discarded, the number that resulted in a takedown, the average time between receipt and takedown and the number of counter-notices received. If hosts are comfortable providing more information, that would be great, but since most are not under the level of scrutiny Linden Lab is under, it makes sense to request less.
3. Add Policy Information: Right now, what happens after a DMCA notice is filed is something of a mystery. From talking with hosts I know how some handle it, but there is precious little information about how a notice goes from a submission to a takedown. This might make a natural addition to all Web host’s copyright pages and would be largely static unless there was a change in procedure.

In addition to those changes, I would also suggest that hosts provide a random sample of the DMCA notices they received to an online database similar to Chilling Effects. It would not be necessary to send every single one, just a statistically significant percentage. Hosts could, possibly, send every twentieth or hundredth notice to the database depending on how many they receive.

The bottom line though is that any information we can get that goes beyond the anecdotes and horror stories we have to work with will be a drastic improvement over the current situation.

Conclusions

In the end, it is unlikely that hosts will release this kind of information voluntarily and even less likely that any kind of legislation will require them to do so.

Though those of us who are interested in copyright law, both for and against the notice and takedown provisions, would greatly appreciate transparency from the hosts, these types of statistics are considered closely-guarded secrets and will almost certainly remain that way.

In addition to legal issues that may arise from releasing such information, especially if a host is slow or unresponsive to DMCA notices, many fear that it will color customer perceptions if it is known just how many notices they receive and act upon.

Sadly, it is an area where practical business decisions may overshadow the need for good information and good policy. Few hosts are going to spend time and money to publish information many would consider unsavory, no matter how important it might be.

Still, it would be nice to see hosts take initiative in this area and do something to help others understand just how the DMCA is used. If a host wants to criticize the current law, then giving the public and the government the information to make sound decisions is the first step to fixing the problem.

Without that, then there is pretty much no hope of the law ever changing.

So, before I look forward into 2008, I want to take a moment and look back over the year that was starting with the predictions and previews that I put forth a year ago, almost to the day.

If you want to laugh at me for being wrong and making a few guesses that, in hindsight, were more than a little wrong, this is your chance. If you’re looking to hire me as a psychic, this will probably completely kill me chances.

Prediction 1: Content Licensing Grows Up

2007 was supposed to be the year that content licensing grew up and became not just the norm, but a business model. Unfortunately, it didn’t work out that way.

The reasons for the prediction were clear. Companies such as Lisensa had just started and others were rumored to be started. However, Lisensa ended up not gaining much traction and the other companies failed to materialize.

This isn’t to say that it was a bad year for content licensing. Creative Commons introduced the CC+ initiative, which in turn enabled the promising rights company RightsAgent, from the same people who founded Lisensa, only this time with much better backing (More on RightsAgent to come).

Things did indeed start to “grow up” in this area but it was much too late in the year. All in all, content licensing did not live up to its potential in 2007 but may be poised to make another run at it in 2008.

Prediction 2: Copyright Tools Get Smart

This is similar to the first prediction in that a great deal of progress was made, but the full potential was nowhere near realized.

Copyscape, for example, made vast improvements in its monitoring of content theft. However, all of the content theft tracking tools remain, fundamentally, dumb. They don’t support licenses, detect attribution or spot commercial use.

Attributor holds the greatest promise in this area and they launched their service this year. However, their current offerings are just for corporations such as Reuters and the Associated Press. A version of their service for bloggers and Webmasters is due in early 2008.

This may easily fall in the category of predictions that turn out to be right, but were just made a year or two too early. 2008 holds a great deal of promise for these tools, it is just a shame that 2007 didn’t see more.

Prediction 3: More False DMCA Notices

This one was a bit too easy. But it certainly came to fruition, largely fueled by YouTube. Consider these three examples:

• The Rational Response Squad suffered a series of takedowns and bannings at the hands of ideological opponents over public domain clips.
• Prince secured the removal of a 29-second video of a dancing baby due to the fact his song “Let’s Go Crazy” was playing in the background.
• Viacom demanded the takedown of a clip from their Web 2.0 Junk Show even though the clip was, almost entirely, the property of the person who posted it to YouTube.

This was easily the safest prediction I made but it still held a few surprises. The biggest one, for me, was that most of the false notices weren’t due to malice, but due to faulty copyright protection systems. Either bad algorithms or overworked humans.

Still, despite the attention these incidents attracted, the number of false notices remained fairly low, especially when compared to the number of legitimate ones filed.

Prediction 4: Hosts to Rethink DMCA Policies

This one is hard to say. The hosts I’ve spoken to have definitely been looking at their DMCA polices and making adjustments, but there has been little public attention given to this.

YouTube, for example, has been the subject of both a billion-dollar lawsuit and the highest number of questionable DMCA notices. Yet, their actual practices remain very much cloaked in secrecy and unchallenged.

All in all, I think I was pretty off the mark with this prediction and it may have been more a case of wishful thinking than anything. Sadly, this one does not seem to be poised to change in 2008, that is, barring any major changes.

Prediction 5: Lawsuit Outlook

In this section, I made a pair of predictions. The first was that the Perez Hilton case would be settled out of court by the end of the year and that the Michael Crook case would be ongoing.

Whoops.

Though I rarely get to be wrong twice in the same prediction, I was here. I not only underestimated Crook’s resolve to dodge, delay and stall his lawsuit but I severely overestimated Hilton’s ability to see a good deal and take it.

As of this writing, the Michael Crook case was famously settled in March and the Hilton case is still ongoing, with other lawsuits tacked on for good measure.

I have to admit, I was wrong, dead wrong, on this one. Just goes to show how unpredictable these things can be.

Prediction 6: Legal Tide Turns Against RIAA

With the Jammie Thomas ruling grabbing so many headlines this year, it is very tempting to try and deny I ever made this prediction in the first place. However, I don’t think it is that cut and dry.

The RIAA has had some severe legal setbacks, the most recent being a case it was forced to drop for using an “unlicensed investigator”, namely MediaSentry. Furthermore, they’ve started trying some contradictory and even insane legal arguments in order to keep their ongoing cases afload.

It is hard to tell if the legal tide is turning or has turned against the RIAA this year. We won’t know that until some time next year when the next round of rulings come down.

The Thomas verdict was a win for the RIAA, no doubts there, but it was just one case in the year. It won’t mean anything if it is their only win.

Prediction 7: UGC Revolt

Revolution was indeed in the air this year at UGC sites. The most famous being the Digg User Revolt of 2007.

However, these revolts, big and small, were not over wanting some of the money, as previously predicted, but over wanting control over the sites.

For example, the revolt above dealt with the removal of an encryption key used to protect HD-DVDs and the alleged censorship of the topic. Other mini-revolts dealt with the desire for a picture section, the new comments system. Similar ones on Reddit dealt with desired features and algorithm change requests.

Users of popular UGC sites are clamoring for dollars yet, but are definitely trying to assert their authority. It seems that I was at least somewhat right on the event, but very wrong about the reason.

Conclusions

In the end, I had one prediction dead on, one dead wrong and five somewhere in between. It was a mixed bag to put it generously but not altogether surprising given how unpredictable this news area tends to be.

Though I can’t say I’m proud of the predictions I made last year, I’m not terribly discouraged either. After all, things could have easily gone much worse.

But what really surprised me this year wasn’t any of the items above, but rather, a shift in the conversation about copyright and content theft on the Web.

Previously, the argument over these issues has been dominated by the two extremes. One group wanting copyright to be little more than a fantasy on the Web, the other wanting the strictest interpretation possible.

Though the extremes were definitely vocal this year, 2007 may well be remembered as the year that, despite everything that happened, cooler heads prevailed.

After all, Creative Commons thrived, spammers were battled and attribution was fought for. The “Us vs. Them” mentality that has thrived on the Web in years gone by is weakening. It is being replaces that artists need to be supported for their works, that piracy is wrong but, at the same time, creativity can not be stifled.

We may finally be pushing our way toward a middle ground. Though it may be optimistic of me to say so and I certainly wouldn’t call that a prediction for 2008, things certainly do “feel” better on the Web than they did just a year ago.

Let us hope that trend continues.

Disclosure: I am a consultant for Attributor.

These differ from most of the other hosts we’ve covered in that they are not free services, but rather, paid hosts that earn monthly or yearly fees from their subscribers.

Despite the apparent conflict of interest, these were also the hosts that the notice and takedown provisions of the DMCA were largely targeted at. However, what remains to be seen is exactly if and how they have implimented the DMCA on their sites and if they are taking advantage of the protections the law provides them.

To find out for ourselves, let’s take a look at the DMCA policies of seven of the largest and best-known domain hosts.

Format: Email
Email Address: CopyrightClaims at godaddy dot com (or wildwestdomains dot com)
Location of Policy: Trademark and/or Copyright Infringement Policy
Registered with USCO: Yes and Yes
Comments: On paper, Godaddy, along with its sister company Wild West Domains, is the largest Web host in the world. Between sites hosted/parked at GoDaddy and companies that resell services from Wild West Domains, they make up an estimated 14% of the entire hosting market. With so many sites on their servers, their DMCA policy is of critical imortance. Fortunately, it is fairly solid. Both sites display it as a single link off of their “legal” pages and the policies, which are almost identical, have all of the needed information for filing both a notice and a counternotice as well as a simple but effective policy on repeat infringers. Other than some minor inconsistencies between the email for Wild West Domains when comparing their site and their USCO registration, the policies are very strong and, in my experience, seem to be enforced very well.
Grade: B

Format: Email
Email Address: copyright at demandmedia dot com
Location of Policy: Copyright Policy
Registered with USCO: Yes
Comments: Short, sweet but complete is how I would describe Enom’s policy. Though you have to click through their terms of use to find the policy, it does have its own page and it has all of the required information to file a notice with them. However, there is no mention of a counter-notice, which is a minor quibble over all. The information is consistent between the the Web site and the USCO filing, which was updated earlier this year. They certainly don’t go far out of the way to help with copyright issues but do a good job following the law and making the information available.
Grade: B-

Format: Email
Email Address: copyright at yahoo-inc dot com
Location of Policy: Yahoo’s Copyright and IP Policy
Registered with USCO: Yes
Comments: Popular with small businesses, Yahoo’s Web hosting service has a solid reputation among its users and an equally solid DMCA policy. Their copyright policy is linked at the footer of nearly every page under Yahoo’s control and is very robust, though still short and easy to read. They have a great reputation for acting on such complaints and, all in all, are one of the most compliant companies out there. They could easily set the bar for other companies in this field, as they already have for photo sharing services.
Grade: B

Format: Email
Email Address: dmca at networksolutions dot com
Location of Policy: Legal Notice and DMCA Claims
Registered with USCO: Yes
Comments: The oldest domain registrar already has a site that is tough to navigate, but finding the copyright policy on it might be a nearly impossible task. Located at the top of the footer in dark gray on gray type, it is easy to overlook the “Legal Documents” link of one isn’t paying close attention. Once you get there, the actual DMCA policy is buried underneath information about their own copyrights, patent issues and trademark information related to the company itself. Once you actually find the policy, you see that it is fairly complete but the phone information does not match what is in the USCO database. Also, the USCO form has not been updated since 2004 and, thus, doesn’t have an email address listed. Fortunately, Network Solution’s site does provide the email above. All in all, the policy seems to follow the law, but the trickery on the link itself how buried the policy is leads me to think that this site really doesn’t want people visiting that page, even if they have a legitimate need to.
Grade: C-

Format: Email
Email Address: Legal at 1and1 dot com
Location of Policy: Subpeona and Copyright Policy
Registered with USCO: Yes
Comments: The location of this policy boggles the mind. If you visit their terms and conditions page, you won’t find any mention of the DMCA in their 24 part TOS. If you look at the table of contents to the left of the header, you won’t see any mention of copyright at all. Instead, the policy is located in their “Subpoena Policy” link, which is mind-blowing considering a DMCA has nothing to do with a subpoena. Once you find the policy at the bottom of that page, you’ll find that it is fairly complete, though missing counter notice information, and has everything that’s needed. It also matches up well with the information on file with the USCO and all information points to an outside law firm to handle all of these notices. Overall, the policy itself is bare bones but compliant. However, the shell game that’s played with finding it makes me wish I had another grade between C- and D+.
Grade: C-

Format: Email
Email Address: abuse at dreamhost dot com
Location of Policy: Copyright Infringement
Registered with USCO: Yes
Comments: Dreamhost is a company that has found itself at the center of a DMCA controversy before. Its policy is a sharp reflection of that and it makes their policy hard to grade. To find their policy you have to first find the link to their abuse center in their terms of service. From there you visit their Copyright Infringement page and scroll to the bottom for information about filing a DMCA notice. Unfortunately, their policy is woefully incomplete. There is no information about how to file a notice, just a strong recommendation to contact a lawyer. The entire policy seems written solely to intimidate people away from filing notices, even if they have a legitimate complaint, and comes complete with a picture of Michael Crook. There is no contact information for the DMCA agent other than the email, which is repeated on the contact page and, since Section 512(c)(2) requires that the host make available on its site “the name, address, phone number, and electronic mail address of the agent” there are serious legal issues with this policy. Despite these concerns, I am still very pleased with how they have handled things on the backend, unfortunately, this review only deals with the frontend and how useful a relative layperson would find the site.
Grade: D

Format: Email
Email Address: legal at ipowerweb dot com
Location of Policy: DMCA Policy
Registered with USCO: Yes
Comments: iPowerWeb is a site that has been widely criticized for how it handles DMCA notices. I’ve received reports of sites going down on the service without iPowerWeb forwarding on the information to the customer, making it impossible to file a counternotice. However, their written policy is, by itself at least, very solid. It gets its own page under the terms and conditions and has all of the information needed to file a notice and a counternotice as well we information on repeat infringers and the dangers of filing a false notice. It is not the easiest policy to find, but it gets the job done. Though I have never had a problem with iPowerWeb taking down infringing works, I worry about their customers and hope that they are being treated better today than they have been in the past.
Grade: C+

Conclusions

My overall impression of these sites can be summed up in one word: mediocre.

All of the sites above fell in the B to D range, none really are doing anything exceptional in this area to be proactive and throw their support behind this issue. However, none truly fall flat on their face either.

All of the polices, with the exception of Dreamhost, are about what you would expect from large hosting firms, lawyer-written, bare bones and to the letter of the law while going no farther than needed.

There were no major surprises, pleasant or unpleasant here. All in all, these sites are just businesses trying to follow the law. Though it would be nice to see more cooperation and forward thinking, these hosts have less motivation to do so than YouTube and other hosts that are under constant copyright fire.

In general, expect cooperation but don’t expect any helping hands.

Recently, Hyman took one of those fake IDs and posted it to her blog. When she discovered that the fake ID was in the person’s real name, she redacted the last name so the Google Cache would not unnecessarily hurt the person’s reputation.

However, tempers had already flared up. Hyman had already been the subject of several angry comments and a few prank subscriptions.

But it was on Monday morning that Hyman got her greatest surprise, the creator of the fake ID filed a DMCA notice with her blog host, Blogger, and got the image removed.

Almost instantly, what started out as a stupid real life mistake by a college student became an Internet-wide controversy. Now it seems that the fake ID “artist” will not be forgotten for a long time to come.

A Quick Dismissal

In her post about the DMCA notice, Hyman is quick to dismiss the notice as invalid. According to her, she spoke with a couple of her friends, who were attorneys, and quickly determined the following:

A fake ID, besides being illegal to create in the United States, is a derivative work of the United States Government, and is not an original creative work of authorship.

However, the statement has at least one flaw in it, namely that the ID is not a derivative work of the U.S. Government, but of the issuing state. That is a big difference in that works by the U.S. Government are automatically entered into the public domain whereas state government creations can enjoy copyright protection.

Still, the overall sentiment is fairly accurate. A fake ID, taken as a whole, is indeed a derivative work and would not be protected under copyright law. The issuing state, not the person who created the ID, would seem to be the one to file a DMCA notice in these situations as they own the copyright on the original work.

It seems, on the surface, to be an open and shut case of a false DMCA notice being used to silence criticism. But a closer look at the original notice shows that things are not as cut and dry as they seem.

A False DMCA Notice… With Some Merit

The original DMCA notice, under the heading “Identification of Infringed Material”, contains no mention of the fake ID itself, but rather of the following (notes are my own):

The image referenced above (assumedly the fake ID) contains a scanned image of a picture and a signature that I created and own the rights to

It appears, based upon this letter, that the person filing the DMCA notice is not complaining about the fake ID itself, but rather, the image and signature contained within it. If the person did indeed take the photo and draw the signature, there is a good chance that he or she owns the copyright in one or both of them.

Copyright law seems to back this up when it says the following in Title 17 – Chapter 1 § 103(b) when it says the following:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

In short, when creating a derivative work, such as a fake ID, one retains the copyright to the material that they contributed as long as it is distinguished from the preexisting material.

The photo, without a doubt, is protected under copyright law and the signature, depending on how original it is, may be as well. In short, by posting the fake ID to her site, Hyman was indeed posting copyrighted material without permission.

However, the story doesn’t end there. There are still other legal issues that need to be resolved.

Fair Use and Fake IDs

The fact that Hyman, most likely, posted copyrighted material without the owner’s permission does not necessarily mean that it was copyright infringement. Fair use is designed, by its very nature, designed to protect people who wish to use such works in a limited set of circumstances.

The four factors considered when determining if a use is fair or not are as follows:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. the effect of the use upon the potential market for or value of the copyrighted work

With that in mind, it seems that a very strong argument for fair use can be made.

1. The use, by all accounts, was non-commercial and was in order to make commentary about the incident.
2. The works in question were a very small photograph of someone’s face and a scanned signature. Neither very creative in nature nor was this the first “publication” of the work as the creator distributed the work previously as a fake ID.
3. The sentiment of fair use is “take only what is necessary”. If the whole image is needed, then courts have found that such usage can be considered fair.
4. Finally, since there was no market or potential value for the work. There is no potential harm that the use can bring to it.

When it is all said and done, it is likely that the DMCA notice is indeed invalid not because the material wasn’t protected by copyright, but because the use of it was fair.

However, that is a determination that would have to be left up to a judge and/or jury and would likely hinge on many unknowns at this time, including the article written around it, Hyman’s intent in posting the ID and more.

Still, the argument, on the surface at least, looks strong.

Conclusions

The bottom line in all of this is that the copyright issues are much more complex and involved than Hyman originally indicated. It, clearly is not as simple as dismissing the fake ID as a derivative work and walking away.

However, the real lesson here is to first be careful with everything not yours that you post without permission. One needs to ben constantly thinking about potential copyright issues that might arise.

Second, it’s important to remember that the DMCA is a great way to deal with serious copyright infringement. However, it is a horrible way to bury criticism or embarrassing information. As Michael Crook can testify, that only serves to draw more attention and create more problems.

Finally though is the obvious lesson: Don’t make fake IDs. It is stupid, it is illegal and it can cause a variety of problems down the road. Don’t do it and definitely don’t include your real name on it if you do. It can come back to bite you in so many ways.

The good news is that it appears that the case has a happy ending. Not only has Hyman filed a counter-notice with Google, as she was right to do, but she and the subject of the ID have worked out an arrangement where the ID can be displayed on the site sans any personal information.

In the end, I am not sympathetic to the creator of the fake ID. They made a stupid decision, they did something illegal and they are wanting to bury their mistakes by applying copyright law when it likely doesn’t apply.

This was clearly a situation where cooler heads could have prevailed and no legal entanglements needed to be involved. Sometimes all of the legal complexities in the universe by just asking someone nicely to do something.

The only one being unreasonable, when it’s all said and done, is the person filing the DMCA notice.

With that being said, several new stories have cropped up that deserve mention as the issues they raise do pertain directly to ones handled by those posting their works on line. If this column is popular, I might move it to Friday’s and make it a regular event.

So, without further ado, here’s a look at some of the stories that have been impacting copyright on the Web.

False DMCA Notice Results in YouTube Takedown

Mashable reported that a fifteen-year-old teen from Australia filed a false DMCA notice against YouTube as a prank. In the notice, he pretended to be a representative from the Australian Broadcasting Company (ABC) and requested the removal of hundreds of clips from the show “Chaser’s War on Everything”.

However, ABC has repeatedly stated that they support users uploading clips of the show to YouTube and elsewhere. Nonetheless, the notice resulted in the removal of hundreds of videos and many YouTube users that had posted the clips were sent stern warnings about violating copyright.

ABC, in a statement, said the following:

Everyone does dumb stuff when they are 15. But what was of concern to us was the fact that YouTube was sending copyright infringement notices to people who have been uploading Chaser clips to YouTube, threatening to shut down their access to YouTube if they persist that’s what was worrying to us.

The DMCA worked exactly as designed. A notice was filed, the works were removed and they can now be put back. However, what is scary, and what the prankster probably did not think about, is that he has opened himself up to legal action.

As per the DMCA, he had to swear, under the penalty of perjury, that the information was accurate when it obviously was not. False DMCA cases in the past, including the Michael Crook case and the Diebold case, dealt harsh penalties to the party abusing the DMCA.

However, the sheer geography of this matter makes such a suit unlikely. Still, if one of the parties that were the subject of the takedown had the ability and the desire to do so, they could easily file suit against either the prankster or his guardians, possibly to a very unsightly end.

Premature Mob Justice

Earlier this month, several reports on the Web surfaces saying that GSC Game World’s recently released shooter S.T.A.L.K.E.R. ripped much of its artwork from other commercial games including Doom 3 and Half-Life 2. The story took off almost immediately, even hitting the front page of Digg, and even prompted a comment from Todd Hollshead, the CEO of Id Software, the makers of the Doom series.

I’ve seen a post on a web forum that claims DOOM3 assets are used in another game, but we’ve been working hard on Enemy Territory: Quake Wars as well as our own internal project and have not had the time to fully investigate or otherwise verify that the claim is true. Only from what I’ve seen on the Web, it’s concerning. However, it may turn out to be nothing. Nevertheless, it would be improper to make any decision about a course of action until we find out whether the claim is true, and what assets from DOOM3, if any, have potentially been used.

However, the fury was for nothing. It was almost immediately discovered that the artwork was actually purchased from a third party, Marlin Studios, which makes texture packs specifically for video games and movies. The use was both licensed and for the exact purpose it was intended.

All in all, it is just another example of why mob justice is generally a bad idea. Often times, the full story is not known until after the snap decisions are made.

Strong Bad Does Copyright

Finally, on a lighter note, the most recent Strong Bad Email on Homestar Runner pokes fun at the current copyright climate.

In the episode, Strong Bad and his cohort/lawyer The Cheat threaten to “sue” the email submitter for violating their “copyrights” by producing a comic strip of them. They also relive a time they used water balloons to file a similar “suit” against Homestar himself when he attempted sell Strong Bad flavored water.

It’s great fun for anyone interested in copyright humor, however, it does make me want to consider enlisting the Cheat’s services in my consulting practice. A briefcase full of water balloons might make a great deterrent to scrapers…

The article was posted in the wake of the settlement of the Michael Crook case and references back to it multiple times. According to the entry, DreamHost received several of the now-famous Crook DMCA notices. After initially removing at least one, the DreamHost abuse team realized what was going on and began to reinstate removed images and ignore Crook’s further notices.

This spawned a series of threats from Crook against DreamHost, some legal in nature, others more personal. One, for example, included the following statement:

Also..just out of curiosity….how would your vendors and customers like an “anonymous� Tip that your company was founded and is run by child molestors [sic]?

Just wondering is all.

Though all of the DMCA issues were resolved in the wake of the settlement, the post also contains a rare, but very valuable, look at how an abuse department such as DreamHost handles DMCA matters.

Behind the Curtain

Hosts, for legal reasons, rarely talk about their DMCA policies. Even I, who has filed over 300 notices and forged good relationships with many abuse teams, hear very little about what happens to a notice after it is sent.

The DreamHost post is one of the first times a major host has publicly and frankly talked about their DMCA policies. From it, there are several pieces of very interesting information to be gleaned including the following:

1. DreamHost sympathizes with copyright holders.
2. DreamHost regularly shuts down accounts that are clearly infringing on copyright, even without a notice.
3. They receive many incomplete DMCA notices, even for cases where the complainer has a legitimate reason for filing one.
4. DreamHost, all in all, seems to like the DMCA, though they do have several gripes with it.
5. The biggest such gripe, in their mind, seems to be the lack of formal penalties for filing a false notice.
6. If you file a notice that is clearly false, they will tell you to leave them alone, even if the notice is complete (as they did with Crook).

On paper, it seems as if DreamHost has one of the best balanced DMCA and copyright policies out there. This is very rare for such a large host, especially one that specializes in large-quantity, low-cost hosting. They’ve clearly thought this through and strike a great balance between protecting copyright holders rights and the free speech rights of their users.

My personal experience, however, does not tell me how many hosts share this approach, especially with false DMCA notices. However, my experiences can add a few other points to what DreamHost said.

My Personal Experience

DreamHost’s entry seems to largely coincide with what I’ve learned from other hosts that I’ve worked with. However, I would add a few points to it:

1. Hosts seem to really hate services that send automatic DMCA notices such as BayTSP.
2. Many hosts, if not most, do not handle DMCA notices with their abuse department, but rather turn that over to their legal team.
3. Though hosts do respond quickly to DMCA complaints and give them a high priority, there are higher ones, spam being a good example.
4. Hosts try to handle DMCA complaints the fastest and cheapest way possible, usually by just disabling the account.
5. Larger hosts tend to have better organized DMCA procedures but smaller hosts are usually faster to act, if they act at all that is.

All of these points are, of course, generalizations and won’t apply to absolutely every single host out there. With literally thousands of Web hosts out there and each with their own DMCA policies, it is very difficult to take knowledge about one host, or even a few hosts, and apply it to all.

Still, the sampling seems to be large enough and the results consistent enough to get an idea of where at least a good number of Web hosts stand.

Conclusions

Though I, nor anyone else, can say for certain that most hosts are like DreamHost in its handling of the DMCA, it would certainly seem that they have the best possible approach.

They have a brave and intelligent approach that doesn’t shy away from closing down accounts that infringe or telling DMCA abusers to go away. They neither hide behind the law nor ignore it. It sounds as if it is a perfect balance.

Personally, I have not needed to send a DMCA notice to DreamHost. Though the likelihood of that grows steadily as paid hosting becomes cheaper and plagiarists turn to it more, I can not, at this time, comment on my experience with them or add them to my Host Report.

But regardless of how it works in practice, in theory they have a nearly-ideal policy and one that other hosts, especially larger ones, should aspire to.

If other hosts were to follow the DreamHost example, hosts would not be the biggest problem with the DMCA and the likelihood of the law being used for evil would be greatly reduced.

That, in turn, would make everyone happier and make the Web a better place all around.

Tags: Content Theft, Copyright, Copyright Infringement, Copyright Law, DMCA, EFF, Fair Use, Michael Crook, Plagiarism, DMCA, Dreamhost

This brings a relatively quick end to the case, which was started in November, and puts to rest the issue of Crook’s false DMCA notices.

All parties involved seem to be very happy with the settlement. EFF staff attorney said, “We’re pleased that Crook has taken responsibility for his egregious behavior. Hopefully, this will set a precedent to prevent future abuse of the law by those who dislike online news-reporting and criticism.”

Crook, on the other hand, issued a press release saying that, “I am thankful that this matter is finally coming to a close.” He also announced the creation of a new Web site dedicated to redacting the Fair Use Act.

It’s the predictable end to a very strange and very entertaining case. However, in its current form, it’s unlikely that the outcome will have any major impact on Webmasters protecting their content.

However, that’s probably the best news of all.

Some Brief Background

The case began after Crook, upset at the posting a screencap of his appearance on the Fox News program Hannity & Colmes, filed DMCA notices notices against several sites, including Jeffery Diehl’s site, resulting in the takedown of several of the images and forcing Diehl to change hosts in order to keep the article intact.

The EFF agreed to represent Diehl and sued Crook for filing the false notices. Crook countersued, citing harassment and “emotional distress”, and the case case seemed destined to drag on. Crook furthered that impression by posting several articles on his site about avoiding being served for legal papers and hiding assets from judgments.

However, just before the new year, Michael Crook offered a settlement to the EFF. The initial offer was refused but in January the case entered arbitration.

Eventually, a settlement was drafted and, after several revisions, a final one was settled upon some time this month. That version was filed yesterday, following Crook’s completion of his requirements.

The Settlement

As part of the settlement, there are seven key things that Michael Crook agreed to do:

1. Never again file any cease and desist notices concerning the image of him on Fox News
2. Withdraw each and every DMCA notice he served regarding the image
3. Take three two courses on copyright law basics
4. Refrain from filing any DMCA notices for 5 years unless the material in question is personally authored, photographed or originated by him or his wife
5. Include in any DMCA notice during that 5 year period, URLs pointing to the EFFs web page summarizing this case
6. Turn over ownership of any domain names to Jeff Diehl and 10 Zen Monkeys if he is caught violating any of the terms of the agreement
7. Publish a video apology for his actions (see below)

Noticeably absent from the settlement is any mention of monetary damages. Michael Crook was able to prove that he is indigent and would be unable to pay any such damages. Thus, he was released from doing so.

The settlement seems to sit well with others involved in the case, including others that received threats from Crook. Likewise, those not directly involved in the case are largely pleased as well. Even Jason Fortuny, the Craigslist sex-baiter Crook copied initially, was supportive of the settlement and even created his own video on the subject of Michael Crook.

The greatest criticism of the settlement came from Michael Arrington at TechCrunch, who felt that EFF might have been overzealous in demanding the video apology, destroying Crook’s dignity along the way. Others, though very happy about the outcome, criticized the video because they felt Crook’s apology was insincere.

Everyone, however, seems to be very pleased that the matter is said and done and they hope that it will be the end of Crook and his DMCA notices.

My Take

Overall, I am very pleased with the settlement. It acknowledges the potential usefulness of the DMCA while taking a firm stand against using it for illegal purposes. It changes little for Webmasters protecting their content as legitimate use of the DMCA is supported by both sides.

However, I do share Arrington’s concerns that the EFF may have been overzealous. Demanding a video apology definitely makes a statement, but it also raises ethical concerns. I worry, like others, that they are stooping to Crook’s level by using public humiliation as a tool to make their case.

On the flip side, I also agree that the apology seemed insincere in places. Much of that, however, was probably due to the scripted nature of it. It’s clear from the video (see end of article) that Crook was reading an agreed-upon script.

What is surprising is that the video apology also included a great deal of explanation from Crook. He claims that he had no fraudulent intent, that he was genuinely mistaken in the assumption he had copyright over the images and that now he understands he was wrong.

That sentiment is summed up neatly when Crook asks the camera, “Who knew you can’t control your own image?”

The other points of the settlement are pretty standard. The point that enjoins Crook for five years from sending out DMCA notices on works he did or his wife did not author seems a bit odd. As a consultant, I’ve sent out many notices for work I didn’t author, but I am a rare case. Few would ever have a need to do that and it hardly seems to be a severe restriction placed on Crook.

Despite these concerns, the settlement does the job it set out to do and bring a very clean end to this case. It is over, Crook is clearly the loser in the matter and, though no legal precedent will be set since the case was settled without a verdict, a very important moral and ethical one will be set by this.

Conclusions

My sincere hope, and the hope of others, is that this is the true end of the saga. It has been a long and winding road but it appears that, finally, it is over.

Though Crook himself appears to be unbowed by this settlement, he posted a response to the settlement on YouTube, most hope that this will be the last time the Web hears of him as well.

Sadly, in the the long run, this will not be the end of Crook or of DMCA abuses. Others will follow.

Hopefully though, now that this case has been resolved so handily, others will be discouraged from attempting what Crook did and that those who do will be easier to deal with.

In short, he world of copyright law did not change overnight. The villains did not slink back into the shadows and all of the old problems still remain. However, with any luck, all of those problems have become a little easier to deal with and, with time, that can make the Internet a much better place.

That was, when it is all said and done, what the lawsuit was about in the first place.

Read the full article on 10 Zen Monkeys.

Tags: Content Theft, Copyright, Copyright Infringement, Copyright Law, Diehl, DMCA, EFF, Michael Crook, Plagiarism, Youtube