The Ars Technica/Facebook DMCA Debacle

Last week, news emerged that the popular tech news site Ars Technica had its Facebook page deleted. After some initial confusion, it came out that the page was removed due to a DMCA takedown notice filed with Facebook, a notice that turned out to be false.

What followed was a 24-hour firestorm over the removal as Ars attempted to use every channel available, including publicity, to get its Facebook page and its 40,000 fans restored. However, as the story unfolded, it was revealed that Ars was not the only group to have lost its page in this manner. Several others have had lost their pages due to similar notices and they had no luck in getting them restored.

Fortunately though, there was a happy ending for Ars. After about 24 hours of downtime, Facebook restored the page and everything slowly returned to normal. However, for Facebook, the incident was a huge black eye and has called into question their DMCA procedures.

So what happened and what could prevent it from happening again? A lot of the answers aren’t clear but what we do know paints a pretty bleak picture for Facebook in this particular area.

What Happened Between Ars Technica and Facebook

Sometime on the morning of Friday, April 29 Ars Technica noticed that its Facebook fan page was down and they were locked out from editing it. When Ars inquired about it, Facebook’s help team responded with a stock letter that pointed them to a generic help article, one that had no actual information about the notice itself.

Ars posted about the outage and, quickly, others began to provide similar stories, including Neowin and Redmond Pie.

As the media attention grew, Facebook eventually made a statement to ReadWriteWeb where they said they had contacted Ars about the issue, per their policy, but that they were looking into the matter.

However, as the day dragged on, the fan pages started to come back online, one at a time and without any official notice by Facebook.

Facebook did eventually release a statement on the issue, saying in part, “We have investigated a number of recent intellectual property cases and have restored four pages as a result. We apologize for any inconvenience. Abuse of DMCA and other intellectual property notice procedures is a challenge for every major Internet service and we take it seriously.”

There’s been no word what, if any, changes Facebook plans on making to its DMCA policies.

The Problems with Facebook’s DMCA Process

Right off the bat, there are several problems with Facebook’s DMCA process, at least as it unfolded in this situation.

  1. Poor Communication: It took two days before Ars knew what the DMCA notice was over and even the basics of who filed it. This prevented Ars from following through on the notice or preparing a proper counter-notice.
  2. Not a Copyright Issue: The actual DMCA notice lists “Ars Technica” as the work being infringed upon. If this were a legitimate complaint, the DMCA would not be the proper vehicle for this matter as the name of the side is a trademark dispute. Facebook has a form for filing non-copyright IP claims, such as trademark disputes.
  3. No Opportunity to Respond: Facebook simply removed the page without giving Ars a chance to remove the allegedly infringing material. This is related to the first item, but removal of the entire fan page seems to be a drastic step, at least not without giving the page owner a chance to fix the problem surgically.
  4. Questions About Authenticity of Filer: Though we don’t know who filed the notice or if they were a real person, there has been some indication that the individual’s information was clearly false or should have been quickly realized as such. Though hosts have no obligation to verify the filer’s information, they usually at least check to make sure it makes sense and is complete.
  5. Lack of Counternotice Process: Finally, when asked about filing a counter-notice, at least one who had their page removed said that Facebook instructed them to work it out with the filer rather than file a counter-notice. While, as we discussed before, Facebook doesn’t have to answer to counter-notices, they have at least an ethical obligation to consider them.

However, the problem actually goes a great deal deeper than the recent stories. In October we talked about Facebook’s controversial response to a DMCA over a Facebook group for the movie “Let Me In”. There, Facebook removed much of the content from the group but ignored a counternotice that was filed.

On the other hand, those who file legitimate notices with Facebook often report that Facebook is slow to act on proper DMCA notices, often taking a week or more to remove the infringing content. This is something I’ve seen first hand as well.

All in all, it seems Facebook’s DMCA process is in disarray and is in need of a major overhaul.

How to Fix Facebook’s DMCA Process

Fixing Facebook’s DMCA (and other abuse) process is no simple task. However, there are a few steps Facebook can take to rapidly improve the process for both sides of the coin.

  1. Create an Abuse Center: Dreamhost has an excellent abuse center that deals with nearly all kinds of abuse, such as spam, copyright infringement, phishing and so forth. Facebook, to my knowledge, has no such centralized hub, instead scattering their various forms on the site. This is important as it ensures that notices are filed the correct way and get to the right person. No spam complaints in the copyright form, etc.
  2. A “Sanity Check” Before Execution: It seems to me that the problems with the DMCA notice files against Ars could have been spotted in a few seconds by someone with knowledge on the process. As such, it’s crucial that Facebook makes sure every complaint is evaluated by someone knowledgeable about the law and be able to ask for additional information or clarification if needed.
  3. Use In and Out of Account Notifications: One of Blogger’s recent DMCA overhauls made it so that those who had a complaint filed against them had a notice both in their account’s dashboard and emailed to them. Facebook should adopt something similar for all abuse complaints, not just copyright, to properly notify users of the complaint made, what action was taken and what they can do.
  4. A Clear Response Path: Given that Facebook may be too large to let their customer remove infringing material direction (though this is GoDaddy’s policy), the best hope may be to provide a clear path of response, couternotice and appeal. Right now, Facebook is notoriously difficult to reach and that’s not good for customers wrestling with any kind of abuse issue, copyright or otherwise.

All in all, the situation between Ars and Facebook was completely avoidable and has less to do with the DMCA process and more to do with Facebook’s policies.

Bottom Line

Facebook is hardly unique in having problems with its DMCA and abuse processes. Nearly every host has issues and ways that they can improve. Despite that, it seems that, the larger a host gets, the more the problems shine.

Most likely, Facebook’s policies were written and established when it was a much smaller site and they never revisited them after they grew to be as large as they are. This creates a problem as a system that is acceptable when you only get a few notices a day will usually fall apart if it starts getting hundreds.

It’s time for Facebook to revisit its DMCA policies and this incident is an excellent opportunity to do just that.

Hopefully, if they can do that, they can move forward from this incident and start rebuilding their reputation in this area.

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