We've discussed in the past how the DMCA notice-and-takedown process could be deemed a
First Amendment issue, in that it involves government pressure to block speech prior to any hearing -- in fact, just on the say so of an individual. That's because the way it works is that if a service provider receives a DMCA takedown notice, they either have to take that content down, or face liability themselves. Nearly all service providers take the liability-minimizing position of simply taking down the content. Some go even further and take down entire accounts. It's a massive overreaction, but it's a lot easier than actually figuring out what's going on and the law encourages that.
This is becoming a bigger and bigger problem lately, as more and more people and companies rely on third party service providers for what they do. New social services are popping up left and right and becoming quite popular: Facebook, Tumblr, Twitter and others -- and unlike a blog where you can host it on your own server and (hopefully) find a service provider who doesn't easily fold, these services require you to keep the content on their servers and they often seem less willing to hear people out.
Today, we have two separate examples of this, both involving "big" names, which is really the only reason they're getting attention. Were it to happen to less well known names, their content would likely just have been stifled.
First up, we have our friends over at Ars Technica, who
had their Facebook account taken down due to a vague complaint of copyright infringement. No real details. No clue who filed the complaint. No notice. And the entire account locked down:
Prior to the account lockout, we had received no notices of infringement or warnings. Truly, we awoke to find that Facebook had summoned a judge, jury, and executioner and carried out its swift brand of McJustice all without bothering to let us know that there was even a problem.
Further investigation has revealed just how flawed Facebook's infringement reporting system is. To begin with, someone making a complaint can provide any third-party e-mail address they choose. So it is rather easy to spoof the origin of a complaint, while giving Facebook and the accused no chance for a direct rejoinder.
The Ars crew is now highlighting how big a problem this is on Facebook, and how ill-prepared Facebook appears to be at handling counternotices or complaints about all of this:
"I have had this happen twice now. I am a professional photographer and I have been using Facebook to increase my business. This has been working great so far. The first time, I was the only admin of the fan page and my account got suspended (for what reason, I still do not know). And thus, my fan page was automatically assigned to some random 'fan' of the page. Of course they renamed it and stole all of my fans.
When contacting Facebook to try and get my main account reinstated and my fan page back, (7 total emails spanning a 2 week time) I got no response at all. My network had been crushed and I had to start from scratch."
Apparently, this has been an ongoing issue for a number of websites, including Neowin, which has
had its Facebook page taken down multiple times due to a bogus complaint. In that case, it's even more ridiculous as Facebook claims the
only way to fix it, is if Neowin can convince the person who filed the original notice to change his mind.
Next up, we have Danah Boyd, who is well known for her research and insightful writings into internet culture and social media. Apparently she had a Tumblr account under the name Zephoria, the online name that she has used for over a dozen years. Yet, a few years ago, some marketing consultants, who have nothing to do with Boyd, started a company called Zephoria and have been apparently trying to push Danah out of her online persona. The company apparently filed a trademark claim with Tumblr, who simply
handed her Tumblr account over to the company and changed her account to some other name without her approval. Tumblr claims it contacted her, but gave her very short notice and she apparently did not see the note in time.
Thanks to her going public about the issue, Tumblr has apologized and reverted the mistake, and, I imagine, someone inside Facebook is scrambling to do the same thing for Ars Technica as well. But, this is a really big problem that is impacting more and more people and it's only going to continue. Part of the problem is the absolutely ridiculous way Congress and the courts have increased third party liability, such that these service providers feel that as soon as
anyone says something, they need to totally kill accounts. It's a systematic way to use intellectual property claims to stifle and censor speech. It's a huge problem that's only going to get worse.
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Source: http://www.techdirt.com/articles/20110428/13214514072/bogus-infringement-takedowns-danger-relying-third-party-services-with-no-backbone.shtml
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