The DMCA (PDF) can be a very difficult law to use. Many, when starting out, make mistakes in trying to apply it, myself included. It’s simply too easy to leave off one of the required elements or direct it to the wrong party.
This is a large part of why a large percentage of DMCA notices are invalid and so many people struggle to apply the law when their works are being stolen.
However, some “mistakes” go well beyond innocent errors and become either a case of recklessness or outright malice.
A recent example of this involves holocaust denier and controversial political activist Michael Crook who used the DMCA against several sites critical of of his work. The outcome of this was a great deal of outrage and a lawsuit against him filed by the EFF.
Clearly not the reaction he desired.
The notices were originally targeted at 10 Zen Monkeys, which is run by Jeff Diehl, and were sent to both the site’s original host and its new host. The first host threatened to suspend the account unless the work was removed and the latter simply ignored the notice as invalid.
Crook then sent a similar notice to BoingBoing’s host (doc), which is located in Canada, requesting the removal of the same image. That request was ignored as well since A) The DMCA does not apply in Canada and B) The image was not actually hosted on BoingBoing’s servers.
The end result was that none of the sites kept the image down for long and a tremendous backlash against Crook was inspired including a fair amount of name calling and photoshop humiliation. It also prompted the Electronic Freedom Foundation (EFF) to take up the case on the behalf of Diehl, suing Crook for misinterpretation, interference with contract and unfair business practices among other counts.
While none of this bodes well for Crook, it doesn’t appear to be ending anytime in the near future. He seems to have stirred up torrent of anger not only at himself, but also the DMCA.
What Went Wrong
The problems with Crook’s DMCA notices are so numerous that it is hard to know where to begin. Even without getting into the specifics of the notices themselves, here’s a short list of the problems with these notices:
- Crook is Not the Copyright Holder: The DMCA requires that you be either the copyright holder or an “agent” of the copyright holder. Unfortunately for Crook, he is neither. The screengrab, along with the rest of the episode, is owned by Fox News and its parent companies. Crook has no copyright claim to the image.
- Fair Use: Even if Crook were the copyright holder of the image, fair use would almost certainly permit the image to be used. It was an insignificant part of the broadcast, used for non-commercial criticism or commentary purposes that did not damage the market value of the original work. It’s practically a textbook fair use argument.
- Wrong Country: At least one of Crook’s DMCA notices wound up in the hands of a Canadian Web host, where the DMCA does not apply. Though Canada has similar legislation, both the procedure and outcomes are different.
- Wrong Host: In addition to going to the wrong country, at least one of the notices was sent to a host that had nothing to do with the image.
Though mistakes are common with DMCA notices, to have these kinds of flaws with a notice before even putting pen to paper (or keyboard to word processor) is either a sign of extreme recklessness, or malice.
No matter the reason though, the backlash against these false DMCA notices has already expanded to well beyond the Crook himself and to the law as a whole. Something that might have repercussions for countless other Webmasters.
Almost immediately, Crook’s DMCA notices were used to highlight the problems with the DMCA and as a reasoning for why the notice and takedown provision is evil.
Though at least one lawyer has stepped in to clarify that the DMCA is not as “drastic” as many have alleged, much of the rhetoric has been directed at the DMCA notice and take down provision, not the actions of one lone individual.
To be certain, this isn’t the first time that the DMCA has been used in an attempt to silence critics. However, most cases of that happening seem to have been resolved. The DMCA has several provisions to defend against false notices including a counter-notice provision and possible legal ramifications (the entire notice is signed under the penalty of perjury).
- You are not required to be the copyright holder.
- There is no need to swear under the penalty of perjury
- There is no clear counter-notice provision
- There is no stated penalty for filing a false notice.
In short, the United States notice and takedown system worked like it was supposed to. The material was only down for a brief period of time and, though changing hosts was likely a good idea, it was not necessary.
Furthermore, Crook is being sued and, right now, it appears that the suit has merit.
Could the law be improved? Absolutely. I would be in favor of an improvement to the checks and balances of the DMCA to help prevent anything like this from happening again. However, the overall idea seems to be sound, especially for Webmasters without the legal resources to file lawsuits.
The concern is that there are others who are unable to fight back either due to lack of resources or lack of knowledge. However, the DMCA is just one form of “legal harassment” that critics can use. It’s important for bloggers, especially controversial ones, to be aware of their rights and how to protect them.
Of course, that’s a good idea for all citizens, not just those posting to the Web.
Not quiet on the issue, Crook posted a statement on his site (nofollowed) dealing with the EFF lawsuit. In it he says that:
“This litigation has been initiated with the sole intent of malicious revenge, blatant lies, misrepresentations, omissions of fact, and refusal to accept responsibility for one’s actions, all while pounding one’s own chest….”
He went on to say that the lawsuit is “frivolous and without merit” and that the EFF and Diehl were engaging in “pity-whoring”.
He also accuses the EFF of engaging in a form of “Internet terrorism” and calls the suit “questionable” because Craigslist provides hosting and hosting and bandwidth to the EFF. (Note: Crook formerly ran a site entitled Craigslist Perverts where he posted personal information from men he had contacted while posting sexually suggestive ads under the guise of being a woman).
Despite the harsh words and threats of future lawsuits from him, the statement only touches briefly on the notices themselves saying that “at no time was there intentional misinterpretation”.
Whether or not that will be enough will have to be seen in court.
In the end, it appears that Crook has done most the most damage to himself. The photograph he sought to bury is no plastered all over the Web, his name is now eternally connected with this matter and, perhaps worst of all, he’s on the wrong end of an EFF lawsuit.
Though many will likely talk about how this points to the flaws of the DMCA and how ripe it is for abuse, the only thing that Crook has managed to abuse is his own reputation.
To be certain, there are problems with the DMCA notice and takedown provision, but Crook was not able to exploit them to his gain. He attempted to, either through ignorance or malice, but the safeguards worked and are continuing to do so.
Still, it is important to remember that even the most grim estimations show that the majority of DMCA notices are completely valid and only a very small number are malicious or otherwise abusive.
Fortunately, the vast majority of those seem to do more damage to their own reputation than to the sites they target.
Hopefully that fact will discourage others from going down the same road in the future, making the Web a better place for everyone.