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The Fallout From a Flickr DMCA Takedown

Soulskill posted more than 2 years ago | from the potholes-on-the-information-superhighway dept.

The Internet 170

Maddog Batty writes "Dave Gorman, UK comic and Flickr user, recently received a DMCA takedown notice for one of his own pictures which had become rather popular — 160,000 views + lots of comments. The takedown was in error (from a porn company) and Flickr allowed him to repost the image. However, the fallout is that all the original comments are now lost and the many links to the original picture are now broken. Sure, Flickr needed to remove the image, but shouldn't there be a way to reinstate it while keeping all the original comments and links?"

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Of course there should (0)

nedlohs (1335013) | more than 2 years ago | (#39254513)

And he can sue flickr for the damages - likely limited by his agreement with them to at most what he paid them in the first place.

Re:Of course there should (5, Insightful)

HBI (604924) | more than 2 years ago | (#39254517)

I suspect the porn company is not liability limited and probably has lots of cash. Sue them, and let them sort it out with Flickr.

Re:Of course there should (5, Insightful)

Anonymous Coward | more than 2 years ago | (#39254545)

This precisely. The safe harbor provisions are for the ISP. If the takedown notice was in error, and there was no good faith basis for it, I am sure there are several avenues of damages available. The question is quantifying them. It would be better if Flickr had some sort of not shown due to DMCA status, that would just remove the same database entry.

Re:Of course there should (4, Insightful)

Moryath (553296) | more than 2 years ago | (#39254873)

some sort of not shown due to DMCA status

Funny, that's what MegaUpload did. And look what happened to them...

Re:Of course there should (3, Informative)

Anonymous Coward | more than 2 years ago | (#39255255)

Go read 512: "remove or disable access to" - 403 is just fine. You don't actually have to rm.

What they appear to be accusing MU of is having deduplication and therefore knowing that there were multiple links to the same file, only taking down the links actually identified in a DMCA 512(c) takedown, and having actual knowledge that other links to the same file were also copyright-infringing and doing nothing about it.

Whether that is actually illegal under US law has never, to my knowledge, been tested, although clearly the Department of Justice think it is in that particular case.

Re:Of course there should (5, Interesting)

icebraining (1313345) | more than 2 years ago | (#39255721)

What they appear to be accusing MU of is having deduplication and therefore knowing that there were multiple links to the same file, only taking down the links actually identified in a DMCA 512(c) takedown, and having actual knowledge that other links to the same file were also copyright-infringing and doing nothing about it.

Uh, no, they didn't know (at least, not legally) that the other links were infringing.

If I take a picture and upload it to e.g. Flickr, and then someone else downloads it from my profile and uploads to his, that copy is infringing and mine isn't, even though it's the same file.

Whether a file is infringing depends on its colour [sooke.bc.ca] , not just on its bits.

Re:Of course there should (1)

Forty Two Tenfold (1134125) | more than 2 years ago | (#39255465)

And what an apt name, "Wasteland."

Re:Of course there should (0)

Anonymous Coward | more than 2 years ago | (#39254923)

I think Megaupload did the multiple links to the same source, which is what flickr does now ultimately if TF summary is true. It would make sense for them to preserve the database entry for evidentiary purpose in the event that either party filed suit against them. So, if after investigation, the DMCA claim was false, restoring the original link would be easier. But what do I know I am a lawyer, who forgot to sign into his Slashdot account twice... sh*t

Re:Of course there should (2)

Moryath (553296) | more than 2 years ago | (#39255059)

If the takedown notice was in error, and there was no good faith basis for it, I am sure there are several avenues of damages available.

Actually, the only thing you can do under the DMCA is try to get a prosecutor to indict them for perjury.

*gigglesnort* yeah right, a prosecutor ever going after the MafiAA...

Re:Of course there should (4, Funny)

Lumpy (12016) | more than 2 years ago | (#39255347)

"The question is quantifying them. "

100 billion US dollars should work, the RIAA and MPAA can claim such absurd numbers, why cant this guy?

False premise: (3, Informative)

fyngyrz (762201) | more than 2 years ago | (#39255469)

Sure, Flickr needed to remove the image

No. They didn't. They could easily have asked the account holder about the image before completely fucking up.

Re:Of course there should (2)

dkf (304284) | more than 2 years ago | (#39254709)

I suspect the porn company is not liability limited and probably has lots of cash. Sue them, and let them sort it out with Flickr.

Sue both of them. It should also be possible to work out some kind of libel claim in there ("They were alleging I was a copyright pirate, your honour, yet I have enormous respect for all forms of IP as it is a key part of how I earn my living!") Now, Gorman's a UK citizen and is resident in the UK, so using a UK court to pursue a libel claim is A-OK. Heh heh...

Re:Of course there should (1)

Anonymous Coward | more than 2 years ago | (#39254835)

The only libel is against all comics in suggesting that Gorman is among them. The man's awful.

Re:Of course there should (4, Informative)

Samantha Wright (1324923) | more than 2 years ago | (#39255695)

Actually, the summary is slightly in error—it wasn't the porn company, it was on behalf of the porn company, an IP troll called Degban. Like Righthaven, only way, way more stupid and aimless. Degban claims to have been hacked, on top of that. Pretty sketchy, I gotta say.

Re:Of course there should (5, Interesting)

Marillion (33728) | more than 2 years ago | (#39254623)

Better yet, go after the company that issued the false takedown. While I'm all in favor of legitimate rights holders defending their property, we've seen too many erroneous takedown notices issued with cavalier disregard for the rights of owners who prefer to share their intellectual property with the world. This has to stop. As long as takedown notices have no risk to the issuers, don't expect the errors to stop.

Re:Of course there should (2)

Fluffeh (1273756) | more than 2 years ago | (#39254793)

Better yet, go after the company that issued the false takedown.

I believe that this is the best approach. You won't make much money ffrom this sort of action, but I am pretty sure that there are some fairly strict rules about issuing false notices and the penalties for doing so. He wouldn't make too much from it, but the company that issued it would surely be in a world of hurt. Perhaps this is a great opportunity for the EFF or someone similar to take up the cause and do it on behalf of the photographer?

Re:Of course there should (3, Insightful)

icebike (68054) | more than 2 years ago | (#39255113)

but I am pretty sure that there are some fairly strict rules about issuing false notices and the penalties for doing so.

No. Not really. And that is the whole problem with this one-sided legislation. Zero penalties for false take downs.

Because virtually all of congress is in the pocket of big media, there is almost zero chance of getting this fixed any time soon.

Re:Of course there should (5, Insightful)

Jane Q. Public (1010737) | more than 2 years ago | (#39255459)

No, it isn't the whole problem. It is only part of the problem. Another part of the problem is that it allows takedowns BEFORE any "due process" has been undertaken. (A statement of "this is an infringing post" does not qualify as "due process".)

The whole takedown notice scheme needs to vanish from this country. Completely. Things need to go back to the way they were before, when someone actually had to demonstrate a violation in front of a court before expression could be suppressed.

Re:Of course there should (2)

icebike (68054) | more than 2 years ago | (#39255671)

Well in principal I agree, but "Due Process" is a slippery term. Essentially passing a law stating what the requirements are becomes the definition of "due process" in that context. But further It only applies to actions of governments [thefreedictionary.com] .

Clearly fairness is at issue here.

With virtually every web user able to upload photos, writing, music, and video, the rights of the actual IP holders of those items was swamped by the masses. There aren't enough courts in the land to handle these issues. It could never be handled in the court system.

If you had to individually sue every person who posted your copyrighted short story or picture, you could go broke trying to enforce your rights.

Under the prior law there was, in effect, zero protection for the rights holder. As a small artist or writer, there was really nothing you could do against people who posted your work without your permission. There was even less you could do against the individual downloader of your works.

The current situation flips that on its head, handing the big hammer to anyone who cares to make a claim of copyright violation. There is some recourse in the law for the poster to prove the takedown was invalid, but there is no penalty for filing a false claim.

The only solution that is workable without totally swamping the courts would be some sort of (rapidly escalating) penalty for a false take down notice. Both a fiscal penalty, and perhaps a "Rights" penalty. Abuse your right to bear arms and you lose the arms (and perhaps your liberty). Abuse the right to issue take down notices, and you pay a fine, continue to abuse it, and you lose the right to issue take down notices (and, effectively, your copyright).

You probably still need a way to prevent people from posting an entire 60 million dollar movie on the web somewhere. A quick take down should be available in this case without going to court in every jurisdiction in the world.

Re:Of course there should (4, Interesting)

Fluffeh (1273756) | more than 2 years ago | (#39255567)

There have been a few nice cases [targetlaw.com] where the folks that issued a false takedown notice ended up being given some interesting punishments. It's not a level playing field, but it's not totally utterly one sided.

Re:Of course there should (5, Insightful)

Richard_at_work (517087) | more than 2 years ago | (#39255203)

There is certainly a case to be made that the issuing company should serve a penalty for making a false or mistaken claim, but its hardly their fault that Flickr have a completely brain dead way of reacting to takedown notices, so I doubt that any court would agree that they are responsible for the loss of comments or broken links - Flickr knows that the DMCA exists, they have an established process for dealing with violation notices and they know that there is a grace period during which a counter claim can be made.

The loss of data and links here is entirely Flickr's fault - their DMCA process should never result in the mess that it did, because there are always going to be situations where counter claims are successful.

The police don't summarily execute everyone they arrest when an allegation has been made, and thats basically what Flickr did here.

Re:Of course there should (2)

Idbar (1034346) | more than 2 years ago | (#39255831)

And if not legally, let them know that false claims will cause them at least 1 year of not able to claim. If another comes up.. 2 years, 4 years. And so on. There should be a mechanism to avoid those takedown bombs.

Re:Of course there should (3, Insightful)

hemo_jr (1122113) | more than 2 years ago | (#39256011)

A bogus take-down notice can be much more damaging than actually putting up infringing files. Yet putting up an infringing file can result in the dismantling of the company that put it up, the company hosting it, and imprisonment or even death (if arrest is resisted) for any real person involved.

The lack of appropriate and equitable punishment for wrongful take-down encourages recklessness and fraud on the part of alleged rights-holders or their agents. There have been multiple examples of fraudulent claims by bogus rights-holders, as well as by those who would trample fair use and criticism. All this has been done without any real consequence to those who issued the false take-down notices.

Re:Of course there should (1)

Caesar Tjalbo (1010523) | more than 2 years ago | (#39254911)

What damages?

Re:Of course there should (0)

Anonymous Coward | more than 2 years ago | (#39255009)

Hosting and Domain cost for every website affected.

Re:Of course there should (2)

erroneus (253617) | more than 2 years ago | (#39255145)

While that's one approach, the real problem is the DMCA law which enables this. The courts system can rule a law "bad" and can limit or even revoke a law. What has to be done to prove it's a bad and highly abused law? Surely there's more than enough evidence that it is being abused on a global scale.

Remove it, why? (0)

Anonymous Coward | more than 2 years ago | (#39254521)

Why did Flickr need to remove it? Just because someone said that it violated their copyright? Did they prove it before the removal? No? Then there was no need to remove the it!

Re:Remove it, why? (5, Informative)

Anonymous Coward | more than 2 years ago | (#39254587)

Because if Flickr doesn't remove it, they lose their safe harbor protection under the DMCA. If the photograph turns out to be posted without authorization, then the rights holder can sue Flickr for damages.

Blame the DMCA and the corrupt congressmen + President who signed it into law.

Re:Remove it, why? (5, Informative)

Frank T. Lofaro Jr. (142215) | more than 2 years ago | (#39254883)

They didn't need to DELETE it, just BLOCK access to it.

Only delete it if there was no DMCA re-instatement in a reasonable time.

By DELETING it they are unable to RE-INSTATE access, and are LIABLE for THAT under the DMCA.

Allowing a reposting is not the same thing, even after one gets the right to repost one has to re-upload the content and the comments, original file name, etc are lost.

Also, not following the DMCA takedown procedure just denies you an automatic safe harbor, you aren't automatically guilty, just not automatically innocent. Of couse, most judges and juries are idiots so being in front of either is usually bad unless you are a plaintiff. Judges and juries only feel they are doing "justice" when they award damages.

Re:Remove it, why? (3, Interesting)

pixelpusher220 (529617) | more than 2 years ago | (#39255015)

'How' they implement the DMCA is up to them. 'How' they repost the content is also up to them. I don't believe there's anything in the DMCA about where that content needs to be located beyond posted by the people who previously took it down so Flickr has covered their requirements.

The important question, is why isn't Flickr doing the grand gesture of simply restoring the content from BACKUPS. They have to have backups of the damn content, they didn't have 160K comments residing in memory...

Re:Remove it, why? (1)

sjames (1099) | more than 2 years ago | (#39255257)

Unfortunately, just appearing before a judge and jury is fantastically expensive. Even if you win, you lose.

Re:Remove it, why? (1)

fyngyrz (762201) | more than 2 years ago | (#39255779)

Unfortunately, just appearing before a judge and jury is fantastically expensive.

To elaborate: Money; Time; Stress; Interference with your life; potential for losing even when you are in the right.

Avoid the US court system by any means practical -- it is corrupt, biased, unfair, and in the final analysis, unjust.

Re:Remove it, why? (2)

NormalVisual (565491) | more than 2 years ago | (#39254969)

All they'd need to do would be to replace the image with a placeholder "Temporarily removed due to DMCA action" image at the same URL, and maybe hide the comments. When the DMCA request turns out to be faulty, they either restore the image, or have the owner re-upload it and point the page at the new image, with all the comments and links remaining intact.

Re:Remove it, why? (0)

Anonymous Coward | more than 2 years ago | (#39255033)

Blame the DMCA and the corrupt congressmen + President who signed it into law.

No, I blame the assholes who vote for and reelect them

Re:Remove it, why? (0)

Anonymous Coward | more than 2 years ago | (#39255423)

>No, I blame the assholes who vote for and reelect them

I suggest you look further, at what it is that gets them to vote the way they do. I bet capitalism and it's distributed propaganda machine might be a good candidate.

On the other hand: Who are you gonna vote for instead? Maybe many feel they vote for the lesser of two evils.

I feel we're infuriatingly stuck, but the powerful are perhaps being too greedy and many people are starting to feel less comfort and convenience. Change is brewing,.

Re:Remove it, why? (1)

fyngyrz (762201) | more than 2 years ago | (#39255795)

Who are you gonna vote for instead?

Ron Paul. Best choice by far.

Re:Remove it, why? (1)

MattW (97290) | more than 2 years ago | (#39255531)

The takedown process of the DMCA is one of the better things to happen to the Internet. It provides genuine safe harbor. Without the DMCA, for example, YouTube would have been stillborn.

The problem is Flickr's handling is just not graceful. They are required to take down the item when a notice is received. The user files a counter claim, Flickr can then restore the image and send the user's info to the complainant, who must then sue the user directly, and Flickr remains protected until it is adjudicated by a court, even if they image stays up.

Re:Remove it, why? (1, Funny)

fyngyrz (762201) | more than 2 years ago | (#39255853)

Without the DMCA, for example, YouTube would have been stillborn.

Ok, now you're just teasing us with a dangling, forlorn hope. No more blurry videos of idiots, nowhere for the dumbest comment writers on the planet to spew their endless misspellings and mangling of grammar and pop-culture bewilderment? Un-possible!

No. Just, NO. Youtube will always be with us. "Shall not infringe" will always mean "infringe all you want"; and we have always been at war with Eastasia. Uh, drugs. No wait, with the children. For, I mean. Well, you know. Stuff.

Re:Remove it, why? (1)

HarrySquatter (1698416) | more than 2 years ago | (#39254705)

Because those are the terms of the DMCA.

Re:Remove it, why? (2)

SuricouRaven (1897204) | more than 2 years ago | (#39255155)

Because if they don't remove it immediatly, they become liable. Their role under the DMCA isn't to decide if the claim of infringement has merit - their role is to get it down as fast as possible, and then let the poster and complaintant sort it out in court between each other. This actually makes more sense than might at first be apparent - do you really want companies with no experts and no interest in law to make decisions as to what is infringing?

On the other hand, you can be confident that if the upload were by someone with a lot of money and influence, flickr would have found some way to stall - if not, the official Disney channel on youtube would have been pulled a hundred times over by activists fileing fraudulent takedowns just to prove how easily the system can be abused. It's the same old legal situation as it has always been: The law is written to protect all equally, but in reality it protects you a lot more if you've deep pockets and friends in high places.

Re:Remove it, why? (2)

fyngyrz (762201) | more than 2 years ago | (#39255873)

(Removal) != (deletion + loss + additional unnecessary harm)

Easy but it was not done. (4, Insightful)

WillRobinson (159226) | more than 2 years ago | (#39254543)

Most cases in games, for example they put a place holder picture, saying waiting for review or something. They could have done that. Then put the picture back when it was straightened out. No loss of comments etc.

Re:Easy but it was not done. (1)

pixelpusher220 (529617) | more than 2 years ago | (#39255147)

Agreed, of course what is preventing them from loading this picture + comments from backups is beyond me...

"Sure, Flickr needed to remove the image," (0)

Anonymous Coward | more than 2 years ago | (#39254563)

Sorry, what? It didn't take the author of the photo much legwork to find out this was frivolous, and even if we assume the people processing these DMCA takedown requests for Flickr can't be bothered to look into every DMCA takedown request they get it, surely they should be able to quarantine these files in the event the Flickr-publisher wants to dispute the takedown.

Hiding vs. Removal (5, Insightful)

ShaunC (203807) | more than 2 years ago | (#39254581)

Sure, Flickr needed to remove the image

Is that actually true? From various YouTube DMCA stories, it seems like YouTube just hides the video content and renders an error message when you try to view it. If the takedown is reversed, they re-instate the video at its original URL; the uploader doesn't have to upload it again. Surely Flickr could implement a "hidden" flag as opposed to deleting an image outright?

Re:Hiding vs. Removal (3, Informative)

AK Marc (707885) | more than 2 years ago | (#39254659)

There's also no legal requirement to take down something upon receipt of a properly formatted DMCA takedown notice.

Re:Hiding vs. Removal (4, Informative)

FrangoAssado (561740) | more than 2 years ago | (#39255205)

I don't think that's right. If I understand things correctly, if the service provider (Flickr, in this case) wants to stay protected by the "safe harbor" provisions of the DMCA, it must "expeditiously" take down the (allegedly) infringing material:

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed. [my emphasis]

From http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=130 [chillingeffects.org] .

Of course, if the user then says that he can legally use the material, the provider must (if the matter doesn't go to court) put the content back up:

[...] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)] [again, my emphasis]

From http://www.chillingeffects.org/dmca512/question.cgi?QuestionID=713 [chillingeffects.org] .

Re:Hiding vs. Removal (1)

AK Marc (707885) | more than 2 years ago | (#39255889)

Everyone is so afraid of violating "safe harbor" that they knowingly take actions that hurt their customers. I used the word "requirement" and no such "requirement" exists, though there are differing levels of liability based on actions, but no "requirements."

Re:Hiding vs. Removal (1)

Narcocide (102829) | more than 2 years ago | (#39254677)

Correct, they're blaming the law for a corner they cut in their own software development that now would cost more to correct than potential legal fallout from the loss of user data.

Re:Hiding vs. Removal (0)

Anonymous Coward | more than 2 years ago | (#39254843)

Correct, they're blaming the law for a corner they cut in their own software development that now would cost more to correct than potential legal fallout from the loss of user data.

Assuming by "they", you mean Flickr/Yahoo!. The article doesn't mention Flickr giving any kind of reason why they couldn't or wouldn't just reinstate the image as was.

You sound very sure of yourself, where did you get your information from?

Re:Hiding vs. Removal (1)

Narcocide (102829) | more than 2 years ago | (#39255615)

Just a lucky guess from seeing it happen 1000 times first-hand I suppose. How about you?

Re:Hiding vs. Removal (1)

lennier (44736) | more than 2 years ago | (#39254949)

From various YouTube DMCA stories, it seems like YouTube just hides the video content and renders an error message when you try to view it. If the takedown is reversed, they re-instate the video at its original URL

Hmm. Isn't that behaviour (hiding rather than deleting DMCA-challenged content) exactly what Kim Dotcom did and is now facing criminal charges for? How can it be legal when Youtube does it, but not when Kim did?

Course the trial hasn't happened yet so the Dotcom case could still backfire.

Re:Hiding vs. Removal (1)

Seraphim1982 (813899) | more than 2 years ago | (#39255097)

Hmm. Isn't that behaviour (hiding rather than deleting DMCA-challenged content) exactly what Kim Dotcom did and is now facing criminal charges for?

No. In that case the content was still available, you just had to take a different path to get to it.

Re:Hiding vs. Removal (2)

Jane Q. Public (1010737) | more than 2 years ago | (#39255305)

I am not positive, but I think the issue with Megaupload was that they DID take down the particular file that was being complained about, but did nothing about the (possibly several or even a hundred) other copies of the same file that other people had uploaded.

Of course, if you want to do that, you run into other issues: how do you know two uploaded files are the same? You could do a CRC check, which is non-intrusive, but also not a very good method. I could add a short text file to the .zip I upload, which changes the CRC beyond recognition. Basically, what they would have to do would be intrusively scan and catalog everything that was uploaded, which arguably throws away any "safe harbor" they might claim.

That's one of the big problems with all these schemes calling for repositories and ISPs to monitor the content passing through them: it is fundamentally intrusive, and might endanger any "safe harbor" provision they could otherwise use as a defense.

Re:Hiding vs. Removal (1)

icebraining (1313345) | more than 2 years ago | (#39255763)

Actually, they did deduplication of files, so there was really only one copy, with multiple links to it. They just took down a particular link when they got a DMCA missive.

Personally, my issue with it is that a file is never infringing by itself - it depends on whether the person who uploaded it has a license to do so or not. So even if a particular link is infringing, MU had no way to know if the others were too.

Actually (4, Informative)

WiglyWorm (1139035) | more than 2 years ago | (#39254597)

The DMCA does not require that Flickr take the images down. Only that they respond appropriately to the DMCA takedown notice. A perfectly reasonable response would be to pass on that notification to the user, and allow them to challenge it BEFORE you take it down.

Re:Actually (3, Funny)

Anonymous Coward | more than 2 years ago | (#39254741)

You're talking about logic, which falls into the same realm as unicorns and fairies for most people...

Re:Actually (4, Insightful)

girlintraining (1395911) | more than 2 years ago | (#39254871)

A perfectly reasonable response would be to

Do exactly what the lawyers and industry wants you to do, because you're a web-based company with a lot of competition from other competing products, run on razor-thin margins because your product offering is free and supported only by advertising, and the prospect of a multi-million dollar loss to legal fees would probably end your company, and send all those hard-working employees to the unemployment office.

Slashdot readers often fail to understand that you can be right and still lose. You can even win... and still lose. In the copyright game, if you're a small to medium-sized business the only winning move is not to play.

Re:Actually (4, Insightful)

Cirvam (216911) | more than 2 years ago | (#39254983)

I think having a market cap of 17.75B isn't really in the "small to medium-sized business" category. So Flickr/Yahoo could do it that way assuming their in-house counsel says that it abides by the law.

Re:Actually (1)

bhcompy (1877290) | more than 2 years ago | (#39254991)

Would +1 Insightful if I had points.

Also, if this isn't the definition of first world problems, I don't know what is.

Re:Actually (1)

Brannoncyll (894648) | more than 2 years ago | (#39255793)

A perfectly reasonable response would be to

Do exactly what the lawyers and industry wants you to do, because you're a web-based company with a lot of competition from other competing products, run on razor-thin margins because your product offering is free and supported only by advertising, and the prospect of a multi-million dollar loss to legal fees would probably end your company, and send all those hard-working employees to the unemployment office. Slashdot readers often fail to understand that you can be right and still lose. You can even win... and still lose. In the copyright game, if you're a small to medium-sized business the only winning move is not to play.

Maybe a few high profile casualties of this piece of shit legislation are necessary in order to make it clear to the lawmakers that something needs to be done. Sucks for the guys who lose their jobs, but you can't make an omelette without breaking a few eggs.

Re:Actually (2)

QuasiSteve (2042606) | more than 2 years ago | (#39255171)

The DMCA does not require that Flickr take the images down. Only that they respond appropriately to the DMCA takedown notice. A perfectly reasonable response would be to pass on that notification to the user, and allow them to challenge it BEFORE you take it down.

Legalese is a language all of its own, but maybe an 'IAAL' can clarify...
Under USC 512 ( http://www.copyright.gov/title17/92chap5.html#512 [copyright.gov] )
Section (c) Information Residing on Systems or Networks at Direction of Users.
1c, states:

upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

(emphasis mine)

Doesn't that mean that the clause does in fact require that Flickr 'take the images down' insofar as making them inaccessible?

This is more Flickr than the DMCA (2)

gurps_npc (621217) | more than 2 years ago | (#39254619)

From what I can tell it is a moronic, incompetent FLICKR programing mistake.

Don't blame the poisonous that doesn't bite you for the idiot doctor that removed the leg before checking to see if the snake actually bit you.

Re:This is more Flickr than the DMCA (2, Interesting)

PRMan (959735) | more than 2 years ago | (#39254665)

MegaUpload admitted that many of their "partners" had DIRECT DELETE access to MegaUpload. It sounds like Flickr may have the same arrangement, making the lawsuit for damages against the complainant even more likely to succeed.

Flickr's all eggs in one basket (1)

ackthpt (218170) | more than 2 years ago | (#39254667)

Must have cost too much to have a coder put [Disable] somewhere, so something could be taken from public view and then reinstated as necessary.

US dmca my.... (1)

polle404 (727386) | more than 2 years ago | (#39254717)

I'm sorry, what?
Shouldn't Flickr repost? what?
why the f... didn't they just # out the post and related data, and then re-instate it?
and why oh why does this s#it even effect anything outside the legal bounds of the US?

Re:US dmca my.... (1)

SuricouRaven (1897204) | more than 2 years ago | (#39255173)

Because Flickr is a US company, with servers in the US, employees in the US and management in the US. If you want DMCA-proof hosting, take your image to a company based elsewhere in the world. Just make sure you don't pick anywhere else with an equivilent law.

Own your hosting (2)

metrometro (1092237) | more than 2 years ago | (#39254731)

Screw the cloud. They have their goals, you have yours. Hosting photos isn't that hard. Posting comments isn't that hard. We can figure this out. But as long as we use these for-profit, economies-of-scale cloud intermediaries, there's not going to be the resilience, freedom or security that you get with an open source, user owned, user operated platform.

WordPress works. EtherPad works. We can't do spreadsheets. We can't do video (easily). We can sometimes do community (Diaspora, Appleseed, etc; status updates; BuddyPress).

Get hacking.

Re:Own your hosting (2, Interesting)

byolinux (535260) | more than 2 years ago | (#39255041)

GNU is working on a project to replace Flickr and such sites.

http://mediagoblin.org/ [mediagoblin.org]

Re:Own your hosting (1)

c0d3g33k (102699) | more than 2 years ago | (#39255309)

And all of these "alternatives" you mention are hosted where? Unless you are the owner of the network cables, someone stands between you and the internet, whether you're using a "cloud service" or "cloud hosting provider" or "cloud accessible colocated server", or even "business-level internet access" from your local provider. Even the latter can block access to your IP if they decide to honor a DMCA request (or they suspect you violate their terms of service). As long as you have to rely on the good graces of someone else, you're vulnerable. Some less vulnerable than others, I'll grant you, but still vulnerable. And if you have the wherewhithall to have completely independent internet access, you can probably just be sued directly, because you'll be a big enough target to make it worthwhile.

It seems to me the future lies in smarter and less "public" uses of the internet, where the folks likely to post a takedown never see your stuff, because you're sharing with a much smaller and more exclusive audience. I guess that's in part what the darknet is all about. The internet is still pretty darned useful without relying on all the privacy stealing public services that masquerade as a service but are really meant to serve you up as the product. That's possibly what you were advocating.

The alternative is to fully embrace the concept of the cloud for things you want to make public - just throw it out there and make sure it gets dispersed as far and wide as possible into the cloud of information. You'll relinquish all control (can't get it back once it's out there), but it will be hard to take down.

Re:Own your hosting (1)

Jane Q. Public (1010737) | more than 2 years ago | (#39255351)

And we can do perfectly good spreadsheets too. Libre Office (a fork of Open Office) does perfectly good, open-souce and open-format spreadsheets. That's not online, of course, but it is possible to do online spreadsheets also, using open-souce code, too, involving "edit-in-place" routines using tables to represent the spreadsheet.

Online, open-source spreadsheets are not an easy thing to implement, which is why they are generally limited to single-purpose tables rather than generic spreadsheets. But they are possible.

Re:Own your hosting (0)

Anonymous Coward | more than 2 years ago | (#39255501)

I am pretty sure we have had photo hosting software for quite a while: http://gallery.menalto.com/

problems of posting on sites other than your own (1)

k6mfw (1182893) | more than 2 years ago | (#39254739)

Yes, Flickr is convenient but posting your images on sites you do not own... well they can remove them. Or worse are sites, I think picasaweb, have fine print that says images posted become "property" of them and not you. I forgot specifically which photosharing site but a pro photog says he rarely posts his work on such sites except his own domain because fine print says person given up ownership.

Though Flickr provides means for people to post comments which can be great fun when you have something that resonates with the public, but don't want to spend time moderating every comment. Sure is terrible Gorman lost all those comments, there must have been some real doozies of sorts posted.

Re:problems of posting on sites other than your ow (1)

c0d3g33k (102699) | more than 2 years ago | (#39255319)

Sites you "own" can be taken down too, if you've been paying attention to the news lately.

Re:problems of posting on sites other than your ow (1)

icebike (68054) | more than 2 years ago | (#39255353)

Or worse are sites, I think picasaweb, have fine print that says images posted become "property" of them and not you.

No Picasaweb explicitly states that you continue to own pictures you put on Picasaweb. And you can remove them, and mark them private.
Google's pretty good about following that policy.

If you mark it as public, or submit it for inclusion in Google Earth or Images for Google Maps, they reserve the right to use those even after you delete them from your picasaweb account. You submitted them explicitly for that purpose.

Your Content in our Services

Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.

Specifically, Picasaweb allows you three choices of privacy: Public on the web, Anyone with a link, Private.

Re:problems of posting on sites other than your ow (2)

muridae (966931) | more than 2 years ago | (#39255417)

Or worse are sites, I think picasaweb, have fine print that says images posted become "property" of them and not you. I forgot specifically which photosharing site

You mean Flickr. Picasa's terms were, when I read them, that you gave them a revocable license to the image for the sole purpose of displaying the image in the manner that you choose. They had been different at a much earlier state, but the terms were changed when people spoke up. Flickr's terms were "irrevocable, world-wide, perpetual, sub-license-able" license meaning they could redistribute the file to anyone under any terms they choose, completely ignoring what terms you choose to distribute the photo under. They couldn't claim to be the owner of the copyright, but they could sell the picture without recompense.

Maybe that's the future definition of a professional vs amateur photographer: pros either understand the law enough to not get bitten by crap like this or have a lawyer to help them, while amateurs complain about laws they don't understand and don't want to deal with.

Seems to me... (1)

roc97007 (608802) | more than 2 years ago | (#39254781)

...this (accusing DMCA, get someone's content temporarily removed, then oh sorry, mistake, reinstated with all links broken and comments gone) could be used as a weapon. Especially with an election coming up.

Um..... (1)

ThisIsNotMyHandel (1013943) | more than 2 years ago | (#39254797)

Not sure why you wouldn't just flag the picture as "deleted" in the database like every other social networking site.

Re:Um..... (1)

bhcompy (1877290) | more than 2 years ago | (#39255019)

Maybe they actually take "delete" requests seriously and permanently remove the data, unlike every other social networking site that continues to possess, mine, and sell your data after you've "deleted" it.

Re:Um..... (1)

Xeno man (1614779) | more than 2 years ago | (#39255349)

The question is does flagging a file "deleted" satisfy the legal requirements of a DMCA notice. If it does, then why didn't Flicker implement this method. If is does not, how does the law expect files to be restored when a DMCA notice is challenged?

Basically this is just another example of why DMCA is such crappy legislation and why we don't need more like SOPA.

This is the problem with DMCA take downs. (1)

GmExtremacy (2579091) | more than 2 years ago | (#39254801)

This is the problem with DMCA take downs. They force websites to take down the material even if it isn't certain that it is infringing. Websites don't have the resources to police the content, so sometimes they even have to resort to faulty automated systems (Youtube) that generate false-positives, or (even worse) give copyright holders the power to remove content (which will, again, be abused).

All this does is hurt the little guy. It's guilty until proven innocent, and if you don't have the resources to fight them, you're doomed.

Re:This is the problem with DMCA take downs. (1)

GmExtremacy (2579091) | more than 2 years ago | (#39254827)

Or, more precisely, that's how it works out when applied to the real world. Everyone is paranoia about copyright infringement and no one wants to be held responsible (even if the content isn't permanently deleted).

facebook (1)

Spaham (634471) | more than 2 years ago | (#39254819)

This is what would happen everyday if facebook *did* really erase pictures that people delete.
But I agree, they should at least keep it *some* time.

Re:facebook (1)

SuricouRaven (1897204) | more than 2 years ago | (#39255183)

Facebook? Delete? Hah. Not likely. Facebook may remove images and comments from public view, but I am sure they keep them internally for analytics and advertising purposes.

So If someone takes a picture... (0)

redkcir (1431605) | more than 2 years ago | (#39254831)

Wasteland sells used clothes. They take pictures of models in those clothes. Those clothes are the creation of someone else. Did they get permission to upload and use someone else's work (the clothes) before doing so? Questions, questions, questions.

Re:So If someone takes a picture... (1)

Purity Of Essence (1007601) | more than 2 years ago | (#39254947)

Fashion doesn't have IP protection. You should have used a car analogy.

Re:So If someone takes a picture... (1)

redkcir (1431605) | more than 2 years ago | (#39255963)

Fashion wasn't the issue, pictures were. Question remains, at what point does a picture end it's copy-write life?

Re:So If someone takes a picture... (1)

The Archon V2.0 (782634) | more than 2 years ago | (#39255897)

Parent:

Wasteland sells used clothes.

Summary:

The takedown was in error (from a porn company)

The clothes probably aren't that used at all. But I suppose that depends on one's point of view: I think of gimp masks and strapons as wearable equipment rather than clothes, and I imagine those are well used.

(Someone shoulda read TFA a little closer. ;)

Alternately (0)

Anonymous Coward | more than 2 years ago | (#39254841)

Even when you own the ip rights in question, doesn't contesting the DMCA claim immediately cause you to be susceptible to lawsuit? If true, that's a worrying chilling effect. Litigious corporation X can slap you with a DMCA on your own content, wait for you to contest it, bury you in court fees, and then win ownership of your property when you can't afford to continue defending yourself. That's my understanding of it.

The Real Point (1)

MLCT (1148749) | more than 2 years ago | (#39255079)

The real point of this story is not some minutiae of how flickr's back-end is organised wrt take-down notices.

The real point is that this image only went back because it was Dave Gorman - who is a pretty well known person (in the UK at least). These take-downs occur all the time aimed at "normal" people, who have no profile, and thus their protests are ignored. I hope Dave realises this and works out that he should be championing the little guy (which he generally is good at doing).

Re:The Real Point (1)

SuricouRaven (1897204) | more than 2 years ago | (#39255265)

I've been hit by two takedowns and a false positive on contentID myself. One was actually a legitimate takedown (I used an old Disney cartoon to demonstrate some video filters I wrote), one was infringing but also a perfect textbook example of fair use (40 seconds from a 25-minute program with altered audio for purposes of noncommercial parody), and the contentID was a pure error (The 'offending' audio was so old it couldn't possibly have been copyrighted even in the US - about as old as you can get, with audio recording invented not that long before).

On the latter two I did appeal, but youtube never responded at all. Neither in the positive nor the negative - my complaint was simply ignored. So I closed my account in protest, and relocated my videos (Minus the infringing Disney cartoon) on a host I now rent. Where they shall forever languish in obscurity, because whenever people want to find video they go first to youtube now.

Re:The Real Point (1)

nedlohs (1335013) | more than 2 years ago | (#39255283)

Do you have any evidence for that at all?

I would suspect they don't know or care who he was and just followed the process.

1. Get a DMCA takedown notice, so remove access to the content and notify the account holder.
2. If the account holder responds with a counter notice then forward that to the party who sent the takedown notice.
3. If after 14 days they have not responded then allow then restore the content.

it's a pretty simple process (though there are branches for if they do respond and so on).

What they've done is implemented "removing access to the content" with "delete the content" and "restore the content" with "allow the user to reupload it". Which is retarded but certainly not specific to this one user.

Re:The Real Point (1)

MLCT (1148749) | more than 2 years ago | (#39255485)

I can't speak specifically on flickr (any more than you can), but there have been many many many examples of takedowns being erroneously applied and appeals ignored (see post above yours). Not only erroneous, but downright fraudulent in some cases.

So given those facts, one is led to the conclusion that this case is different due to the person who has been slapped with the notice - and his penchant for turning personal experiences (especially in the digital arena) into award winning shows [wikipedia.org] and films [wikipedia.org] - then it wouldn't surprise me in the slightest if his name would carry more weight, lest he decide to turn some dcma hell into a film or book.

Flickr needed to remove.... (1)

deciduousness (755695) | more than 2 years ago | (#39255251)

Why did Flickr need to remove it again? I think due process should apply to this along with everything else. This whole idea that we can destroy data first, then figure out if the person is in the wrong seems to be one of the main issues with current tactics and future legislation that is trying to be pushed through.

So can you actually make money by posting photos (0)

Anonymous Coward | more than 2 years ago | (#39255291)

to Flickr?

Gorman should sue for infringement (1)

kawabago (551139) | more than 2 years ago | (#39255461)

The porn company infringed his copyright and now he cannot be made whole again. The posts and discussion are gone and links around the world are broken. He deserves $200,000 in statutory damages from the porn company. That should reduce these false take downs.

Re:Gorman should sue for infringement (1)

ExecutorElassus (1202245) | more than 2 years ago | (#39255753)

That didn't work out very well for MegaUpload, did it?

I'm not very optimistic about the present copyright clusterfuck being resolved without Cory Doctorow's war on general computation [youtube.com] coming to pass. Big Media has too much money, too many hands on too many politicians' strings, too much power.

The only reasonable response I can think up is civil disobedience, which conveniently for me would involve copious downloading of unlicenced content until my eyes bleed. Huzzah!

No (1)

pubwvj (1045960) | more than 2 years ago | (#39255817)

No, Flickr did NOT need to take down the image. When they receive the take down notice they then need to present that to him and get his response. If he says it is his original artwork then they go back to the person sending the take down notice and give that response to them.

That's the end of Flickr (0)

Anonymous Coward | more than 2 years ago | (#39255869)

In order to maintain URLs for images subject to takedown, they'll have to make a code change. Since they're now owned by Yahoo, there's a significant chance that a Yahoo coder will be making the change. Within a month Flickr will start to have increasing "server errors", they will begin adding JSON elements to the layouts for no good reason, it will only work half the time, they will lose customers, and eventually be shut down.

So long Flickr, it was good to know you.

Only half joking here. One of the marvels of Flickr is that they didn't get destroyed by the acquisition. There must be somebody at Yahoo that was smart enough to realize they had to take a "hands off" approach to that acquisition. I just hope they can keep those hands off...

Why are you asking us? (3, Insightful)

Restil (31903) | more than 2 years ago | (#39255945)

Shouldn't you be asking Flickr? Yes, there SHOULD be a way to restore it, assuming Flickr designed their system to account for that possibility. Of course, if the company policy when responding to DMCA requests is to simply delete the image and all associated references (including comments), then that is their policy and something you may wish to consider when posting something there in the first place. If anything, this should entice hosting companies to amend their user policy to include what happens in situations like this. Add a few more lines to a very long document that nobody ever reads anyway. Ultimately, if you want control over content you think belongs to you, then you need to host it yourself and not rely on other sites to do it for you.

-Restil

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