Flickr Blunder Shows Problem with DMCA Counternotices

When photographer Mirco Wilhelm logged into his Flickr account yesterday, he received a nasty surprise: His entire Flickr account seemed to be gone.

According to his blog post, he had recently reported another Flickr account containing “obviously stolen material” and feared that Flickr had accidentally deleted his account instead of the infringer. A quick email to Flickr confirmed that fear but it was then Flickr dropped a major bombshell.

Even though Flickr admitted that the account had been deleted on accident, there was nothing that they could do to restore it. Wilhelm’s account, along with years of history and over 4,000 photos, was gone. Basically, there was nothing that Flick could do beyond re-enable his username and offer him four years of “Pro” access for free.

But while many have lamented Flickr’s poor handling of this matter, going as far as to call the system broken, I know well Flickr is not alone in this problem. I routinely hear of horror stories of getting content restored on Facebook and the problem seems to be spreading to other sites.

More to the point, this Flickr debacle points to a serious limitation in the counternotice process and why filing a counter-notice in response to a false DMCA notice is absolutely no guarantee that your content will be restored. In fact, with many hosts, once content is deleted, for any reason, it never comes back, no matter how many counternotices one files.

No Returns, No Takebacks

Let’s turn this situation around and say that, instead of Flickr deleting the wrong account, someone had filed a mistaken or outright false DMCA notice against Wilhelm and, as a result, got his account deleted. Wilhelm, if he disagreed with the notice, could file a conternotice and, if he did so, nothing would happen.

Unless the process for deleting a Flickr account is different for DMCA notices vs. regular TOS complaints, Flickr would be unable to restore his account, even if they wanted.

Of course, this is allowed under the law and Wilhelm wouldn’t have much recourse in the matter. There are two reasons for this:

1. The DMCA Doesn’t Require Counternotice Compliance: The DMCA is about removing liability for the host. By complying with a DMCA notice, the host is no longer potentially liable for the alleged copyright infringement. By filing a counternotice, your host can then repost the content (after the waiting period) without fear of liability. However, nothing says they have to.
2. Terms of Service: When you sign up with a site like Flickr or Facebook you agree to a terms of service that, generally, means that they can deny you service at any time for any reason. In short, if they can’t or don’t want to restore the content, you have no legal lever to force them.

In short, considering that most hosts can simply delete your content whenever they please, you have no means to force them to put it back after a DMCA spat. This has less to do with the DMCA and more to do with the fact we are at the mercy of the companies that host our content, especially those we don’t pay money to or have any kind of two-way business relationship with.

However, as Wilhelm’s situation pointed out, even if you are a “Pro” member and have such a relationship, there’s no guarantee that it will protect you. The contracts are the same and the only lever you have is the threat of taking your business elsewhere.

All in all, not much of a threat at all.

No Easy Fixes

Unfortunately, there is no easy way to fix this. Rewriting the DMCA to force hosts to restore content would likely be a non-starter and would just result in hosts changing their terms to have customers waive that right. It also wouldn’t help situations such as Wilhelm’s where it physically impossible to get the content restored.

In some cases, you may be able to restore the content yourself but, depending on how it is uploaded, it may actually count as a separate “infringement” meaning that the DMCA filer could just refile the notice. Of course, they would be on notice that you disagreed with their assertions, possibly further opening a false DMCA notice lawsuit, but to the host it would be a separate “incident” of copyright infringement.

Really, the only thing that can be done is to find the hosts that aren’t able or willing to restore content after a DMCA notice and then avoid them. However, counternotices are so rare that only the largest companies see them regularly at all.

So, as long as hosts can do what they want with your content, counternotices will aways be a roll of the dice.

Conclusions

If you post content online, you are at the mercy of your host. If they lose your content, delete it, go out of business or if a disaster strikes, you’re out of luck. The terms you agree to upon registering unilaterally favor the host and that isn’t going to change. The only lever we have is bad publicity, as with Flickr in this case.

The good hosts, however, will have provisions in place to restore data that they delete or otherwise take down. Apparently Flickr is working on such a system though it won’t be available until later this year. As such, it’s of no use to Mr. Wilhelm.

This is always why you should assume your host, along with its content, could disappear tomorrow.

That being said, one of the great ironies in this is the reason Wilhelm’s account was deleted: He was trying to report an account with stolen material. Though I’ve never heard of a mistake like this before, I have to worry that it might discourage others from trying to do the right thing.

If Yahoo! (or any other host) is likely to delete the wrong account, it would, understandably, make people very nervous filing a report.