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DMCA Takedown Notice For a Fake ID
Posted by
kdawson
on Tue May 08, 2007 03:45 PM
from the points-for-chutzpah dept.
from the points-for-chutzpah dept.
TrippTDF writes "Rachel Hyman, an artist and bartender in New York City, maintains a blog where she regularly posts images of fake IDs she confiscates from would-be underage drinkers, along with a description of the confiscation. Recently, one of her posts (Google cache) was taken down when the owner of the fake ID invoked the DMCA against Blogspot. Can one claim a forged document as a copyrighted work of art?"
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Wouldn't the picture at least be copyrighted? (Score:5, Insightful)
Re:Wouldn't the picture at least be copyrighted? (Score:5, Informative)
Parent
Re:Wouldn't the picture at least be copyrighted? (Score:5, Informative)
Well, you can copyright a derivative work, but that right only applies to the content that is, in fact new. Indeed, "Feist Publications v. Rural Telephone Service" held that information in a pure form (facts) cannot be copyrighted. Therefore, photo notwithstanding, a fake license cannot be copyrighted. As for the photo, it is a mug shot, which is inherently not artistic in nature, and as such, cannot be copyrighted.
Finally, Title 17, Chapter I, Section 113 pretty much takes the wind out of their sails:
(c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.
Note: producing the fake ID was done lawfully; that is, the owner of the copyright of the photo gave permission in a legal way for it to be used in the production of the product (the fake ID) which was later offered for sale. What is unlawful is to pass the fake ID, and probably to sell it. There's nothing illegal about producing the article.
So no, that argument probably doesn't pass muster.
Parent
About "artisitc" (Score:4, Interesting)
So tell me... where does pure "art" come into play? Let alone photography or photographers? Don't give me the "they couldn't forsee photographers" bit, cause they surely could foresee painters, and they didn't mention them while explicitly mentioning the other professions.
The use of "authors" seems to imply creative writing, but I wonder if they didn't simply mean the writers of instructional books like "a guide to the production of lead bullets" or "how to pack a cartridge." My educated guess would be that the intent of "useful arts" would be things like metalsmithing, carpenty, etc. The kinds of things that had economic use, not just aesthetic.
Regardless, how would photographs fit into either a strict-text or intent-based reading of the Constitution? The best I can figure would be a really, really loose reasonable-construction test. But hell, I think the process for forging licenses would be more of a "useful art" than any individual mug shot, so how would the photo be more copyright-able than the license itself?
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Re:Wouldn't the picture at least be copyrighted? (Score:4, Informative)
(IANL) in the US almost all criminal statues require Mens rea [wikipedia.org] IE a "guilty mind", or a clearly negligent act, so even if you broke "a law" creating a fake ID, that doesn't make it a criminal act. For example I have recieved "fake id's" in email of the bush family as a joke. IE they were clearly fake, to make them funney (IE a Dictator title, etc.) but those creating them obviously had no intent of the fake id being used for a criminal purpose...
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Re:Wouldn't the picture at least be copyrighted? (Score:5, Interesting)
ID cards are meant to cram all the information deemed necessary for the intended purpose on a wallet-sized piece of plastic or plastified cardboard. Basically, all that the card contains is a graphical template copyrighted by the organization that issued the ID with cold-hard-facts printed on top of said template.
Cold-hard-facts are non-copyrightable.
The ID's graphical design and layout are copyrighted by the agency. Since the relevant agency here is public, issued documents are practically public-domain as far as faithful duplication is concerned.
By inappropriate use of the template, whoever manufactured the fake ID is infringing the agency's copyright on the ID's graphical design... but this is a minor inconvenience compared to felony charges for forgery.
Since forgery of an official document necessarily infringes on the issuing agency's copyright for the original's graphical design, a forgery is most likely not entitled to any sort of copyright protection.
Parent
Re:Wouldn't the picture at least be copyrighted? (Score:5, Informative)
One cool thing about copyright (in the US): it does not protect the government. Anything the gov't puts out is in the public domain.
Parent
Re:Wouldn't the picture at least be copyrighted? (Score:5, Informative)
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Re:Possesion (Score:4, Interesting)
I was at the store and some broad asked for ID for the beer I was buying, she looked at it and declared it fake then refused to give it back. I was furious and demanded the return of the license and eventually called the police after locking the front entrance to the store to get it back(she called the law after I locked us in too). Fake Id or not, I don't understand what gives people the gull to keep something that doesn't belong to them when they obtain it though the course of a normal transaction. I was about to just beat her over the head to get it back but decided calling the police and reporting it stolen by her was better.
Now, I'm not sure what the laws for a fake ID are but I would think that anything that belongs to me, no matter how legal it is or not, still belongs to me no matter who has it in their possession. And without some court action declaring it illegal or fake to the respect of it not meeting the requirements of the legal system, I'm not sure how someone can make this claim with impunity. Just because someone refused to give something back doesn't mean it is now theirs, it just means it is now in their possession. I think whoever took the ID in order to profit from a website should be sued or fined by a competent court without consideration of the validity of the document. I have no sympathy for them. And yes, Anything on the license could still be that persons property and should warrant a DMCA take down notice. In possession doesn't equal ownership. Especially when the name and picture on the ID shows it belongs to someone else.
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Re:Possesion (Score:4, Informative)
2. You apparently don't understand what happens to booze slinging places if they DO sell to underage kids fake ID or not. Typically they get shut down, completely. Well at least they lose their license to sling booze and get hit with a hefty fine, and when a bar doesn't sling booze, the bar doesn't exactly do business, but they still have to pay the rent, electric, etc...so in effect their business gets completely shut down. So because some dumb shit kid wandered in and you didn't catch the Fake ID you lose your entire business and all your employees lose their jobs?
3. Just in case you aren't aware. While it may vary from state to state, your drivers license or other such IDs rarely belong to you, they frequently belong to the state. Any sane court would toss out any claims of theft of a false ID in a heartbeat and not waste a dime of taxpayer money pursuing such nonsnese, and would then proceed to punish the fool with the fake ID.
4. I bet you one of those people that thought it was smart when the drug dealer called the cops because someone stole his drugs too huh?
5. Kudos on your rational behavior locking yourself in while demanding your ID back. I am certain that there was very little attempt to explain or work this out rationally. As you said you were furious and eventually locked yourself in. Next time try to be a little more sane and rational, and if needed call the cops to handle the dispute, but acting a fool and locking yourself in is just childish.
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Confiscation (Score:4, Informative)
Your recourse, of course, is to call the cops and let them sort the mess out, which you did. Locking yourself in the store was a cute, yet freakish gesture.
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She Only Claims The Photo (Score:4, Informative)
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yes. next question? (Score:5, Insightful)
Of Course (Score:5, Insightful)
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Re:Of Course (Score:5, Informative)
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Re:Of Course (Score:4, Insightful)
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Re:Of Course (Score:5, Funny)
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Re: (Score:3, Interesting)
In much the same way that I can claim to have invented computers, someone can claim that an illegal document is covered under the DMCA. It is an invalid claim, as no illegal document can be protected in such a manner, but it is a claim none the less.
Why can't an illegal document be protected under the DMCA? The DMCA is about copyright and I don't see any reason why an illegal document wouldn't be copyrighted. Now the forged ID may not necessarily be under copyright since it may not be considered an original work but if it is copyrighted than it should be protected by the DMCA (of course the copyright owner probably wouldn't want law enforcement involved but that's another matter).
Re: (Score:3, Informative)
Re:hm (Score:5, Funny)
Parent
land of opportunity? (Score:3, Funny)
Rachel is cool (Score:5, Informative)
Here is a great gem from her site, "Oh Kathleen O'Brien.. what terribly unjust irony that your fake Id would be confiscated on St. Patrick's Day."
Re:Rachel is cool (Score:5, Funny)
In Soviet Russia, Hyman busts YOU!
Parent
Re:Power trip more like it (Score:5, Informative)
Actually... as she says, the law (apparently) in NY is that if she doesn't confiscate them, she's liable. I know here in Ohio, barstaff are required to confiscate them as well.
If you actually like the bar, why the hell do you want the staff to pay several thousand dollars so you can have a drink, and why do you want the bar to risk being shut down?
Nephilium
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Re:Rachel is cool (Score:5, Insightful)
Wrong. Under the text of the law you quoted, if she actually relied on the document (that means she subjectively believed it was accurate) and that belief was reasonable, then she would not be liable. If she, in fact, recognized the document as false or merely believed it to be false, she would have been liable—even though it may be difficult to prove if she lied about it—because then she would not have relied upon the document, reasonably or otherwise.
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Re:Rachel is cool (Score:5, Informative)
First, yes, she is liable. Affirmative defenses are justifications, not blame-removers. I dunno about you, but I'd rather be blameless to start, and not rely on trying to prove a safety net. And, about that safety net, you also have:
sixty-five of this article, it shall be an affirmative defense that such
person had produced a driver's license or non-driver identification card
apparently issued by a governmental entity, successfully completed the
transaction scan , and that the alcoholic beverage had been sold,
delivered or given to such person in reasonable reliance upon such
identification and transaction scan.
Parent
Re:Rachel is cool (Score:4, Interesting)
Except we do have, on the face of it, good reasons to believe that a legal drinking age of 21 is effective at reducing drinking among minors. Specifically, rather than acquiring alcohol from their immediate peers and classmates, minor high school students must acquire alcohol from their parents, older siblings, or whoever didn't cut it in college and hangs around looking to pick up highschool chicks instead. Absolutely this impacts the supply of alcohol to minors. Not enough perhaps, but certainly it narrows and lengthens the supply chain, and makes it an easier target for future actions.
And we do have good reasons to limit the supply of alcohol to minors, which is a major argument in favor of a legal drinking age of 21. While there are many exceptions, if you can't see the difference in the decision making maturity of, for example, an average 16 year old compared to an average 22 year old, you're just not thinking. There is significant brain development occurring up to even 18. We need to give minors every opportunity to be at a place developmentally where they can fully think through and appreciate the consequences of their actions before we as a society entirely remove the safeguards.
If you are yourself 21 or older, I feel sorry for you that you still see your parents and past teachers as involved in some sort of conspiracy to maliciously oppress and control you. It's an important step to your own self realization that you come to see yourself as an adult, recognizing how you have changed and progressed over the course of your own development.
Parent
Odd Issues. (Score:5, Interesting)
"Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture." says the U.S. Copyright office.
A fake ID, besides being illegal to create in the United States, is a derivative work of the United States Government, and is not an original creative work of authorship.
At least the article answers the questions of the summary directly. I like not having to think. Either way, trying to claim it was an original work seems really dangerous as its basically an admission of forgery. To any lawyers out there, is a DMCA Takedown notice considered a legal document for which charges could be filed if they implicate themselves within it?
Good question concerning the image of the individual itself from the FPer, does the fact that its included on an unauthorized document void the persons right to control over their own image? If not will video stores be forced to ban "BAD RENTER" walls and such other devices for shaming/controlling problem customers?
Re:Odd Issues. (Score:5, Informative)
There are two errors here:
First, most real (government-issued) IDs are not works of the US government but of state goverments. This is a minor point, but perhaps very tangentially significant since US government works are not subject to copyright on creation but state government works are.
Second, an original work that is derivative of another work is still, insofar as it contains original work, subject to copyright. Now, it may itself be a violation of the copyright of the work on which it is based, but that's an issue between the creator of the original and the creator of the derivative, not something which grants a license to third parties.
Parent
forgery, uttering, and big fish-little-pond-ness (Score:5, Insightful)
Either way, trying to claim it was an original work seems really dangerous as its basically an admission of forgery.
Yep, it was not very smart. Until the DCMA request was filed, the only thing the underage girl could be reasonably convicted of when she hands a fake ID to someone is uttering, ie, presenting forged papers as legitimate. Well, and any additional laws she broke that may be specific to presenting false ID for the purpose of buying alcohol and being underage.
If she filed a DCMA request which implies she's the creator of the work, it's not terribly hard to prove that she's guilty of both forgery and saying.
Sidenote: I've seen half a dozen slashdotters declare "OF COURSE you can't copyright a forged document!", and yet have not offered any citations, explanations (that make any kind of sense) or case history. A cookie to the first poster that does.
Sidenote number two: I'm not really cheering for this waitress. She's got a severe "big fish, little pond" complex going.
Parent
Re:forgery, uttering, and big fish-little-pond-nes (Score:4, Insightful)
I think you need to go read the articles again, I never got the impression that she actually said all that to the girl, but that she was posting about her own mental thought processes as to why the girl's answer as to where she was from just set off yet more alarm bells about the ID being fake. In that context it's perfectly reasonable, she already had reason to suspect the ID was fake, and the other information the girl provided was at best suspect. Seeing as her job is on the line if she accepts a fake ID she's going to err on the side of caution (for herself) and find that the possible, but not very likely, situation of her being a non-Jewish person from the area is most likely not the case here.
And now you've failed today's reading comprehension test completely. In the article from the first link she says "I've been informed that I'm required to do this." about confiscating the licenses. She doesn't say who has informed her but in context it's pretty clear her boss(es) were the ones who told her. Others in the comments have pointed out that it is indeed the law in New York that fake licenses are to be confiscated. And she didn't taunt her at the bar, she questioned her briefly, found her answers to be unlikely to be true and confiscated the ID and told her "You can't drink here, darling, and I'm keeping your ID." (That's from the cached copy in the second link.)
She apparently does this regularly and hasn't had a rock through her windshield or tires slashed yet. She's had a bunch of people commit mild identity theft over this one post, just ONE out of who knows how many mind you. And why is that occurring? Because the girl who used the fake ID is stirring up attention. Now, tell me, who exactly is "attention-whoring on the 'net" here? The bartender, or the girl who tried to use a fake ID and got busted? Looks to me like it's the latter, and she's even upping her crime level from presenting a fake ID to admitting she MADE the ID to filing a false DMCA report, etc.
If you'd bothered to research any at all and find out that it is indeed the law for fake IDs to be confiscated in New York you'd know that there isn't any question that the ID was fake at this point. If it had been all it would have taken is a quick visit to the police and they would have come to the club and got the girl's license back that night. Before the bartender went home with it. Before it got posted online. But that did
Parent
Re: (Score:3, Interesting)
I'd say shaming people is still a technique that's in fairly active use, whether intentionally or unintentionally.
Sex offender registries, and resultant websites mapping their residences [google.com] would be an example.
"Scarlet letter" plates [google.com] for DUI/DWIs seem to be gaining traction as well.
Granted, both sex offenders and DUI/DWIs are horrible crimes, but it does seem as if we're not giving people a fair chance at reintegrating into society . . .
I'm sure there are other examples out there . . .
Um ... (Score:5, Insightful)
I sure hope this ends badly for the underaged drunk wannabe.
Re: (Score:3, Insightful)
Does it matter? (Score:4, Interesting)
Say you've got a website discussing a certain aspect of book cover design. You post example images for the purpose of demonstrating and discussing it. You're in the clear in this case, yes?
Sounds like the same thing.
Surprisingly, in theory, yes. At least here... (Score:5, Interesting)
Though in reply they'd immediately get charged with forgery of an official document. In other words, you go to a civil court, they hit the criminal one. You stand against their lawyer, they stand against the general attorney.
It's a bit like disassembling a trojan. In theory, it is a piece of software, protected by copyright. But I doubt any writer would ever drag you to court for it.
In fact, if I was in her place, I would not comply and instead challenge it on grounds of
Re: (Score:3, Informative)
new york has become a
Here's to you, obnoxious girl with the fake ID... (Score:4, Funny)
(hum the theme song as you click the link, folks...)
http://www.google.com/search?q=ashley+heyer [google.com]
The answer is a twisted yes (Score:4, Interesting)
Not exactly. (Score:3, Interesting)
EVERYONE has the legal right to post a take-down notice. No proof of anything is required.
But, as part of posting a take-down notice, you must state, under penalty of perjury, that you are the owner of the material in question, or an authorized representative of the owner.
So if you file a DMCA complaint about a fake ID, you would be screwed one way or the other - either you created (or paid someone
File counter-notice, put blog back up (Score:5, Interesting)
The author should most definitely file a counter-notice against Blogger, and have the page restored.
Directions for such can be found on ChillingEffects [chillingeffects.org]
The girl is stupid. Stupid in the same way that every person we interview here gets a MySpace and Google search done on them, informally, just to see what kind of things the Intarwebs have to say about them. It's nothing official, but if we're borderline about bringing on someone, that search might tip our decision one way or the other. If we're "eh" on hiring someone, and find out they prefer to spend their nights playing games until 4 AM, then coming in late to their last 4 jobs, we're probably gonna go with "poor work ethic" and not hire them. In the same way, if she's, say, at NYU Law as an undergrad, when it comes time for internships, all those law firms are probably going to be very interested in the fact that she got caught with a fake ID when she was an undergrad.
As the author states in her writings, "actions have consequences" . In this case, for a young woman who is "going places", her actions are that those places she's going are going to know she, when she was underage, she was willing to break the law just to go out drinking.
I hope Rachel gets the post back online...and maybe even gets the chance to file suit for abuse of DMCA Takedown notices. We'll see what kind of places this girl goes when it's not just a post about her fake ID, but her disregard for the valid use of the law.
I'm conflicted (Score:5, Funny)
Short answer: No (Score:5, Interesting)
Copyright protection subsists in original works of authorship fixed in any tangible medium of expression. 17 U.S.C. 102.
1. What is original in the driver's license?
The graphics? No. The layout? No. The selection of the fields of data? No. The photograph? Arguably. The data? Arguably.
2. What is original and protectable in the driver's license?
Are photographs protectable? Yes. Is data protectable? No. FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340 (1991).
3. Is the reproduction likely to infringe the protectable content?
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. 107.
The purpose and character appears to be criticism, or at least not commercial. The nature of the copyrighted work is at least allegedly a government ID, which does not favor copyrightability by someone other than the government. The amount and substantiality of the portion used is essentially all, which does favor copyrightability. However, the effect of the use upon the potential market or value of the photograph is, at least to the best of our knowledge, none, since Google is bereft of interesting content regarding Ms. Ashley Heyer.
The fair use factors balance out somewhere along the lines of 3 against, 1 in favor. There could be a more involved analysis, and there could be ancillary factors for consideration, but if I were the one being faced with this DMCA notice, I would file the counternotice and take my chances.
The Bar Managers guide to how you look too young. (Score:5, Interesting)
It is easy to spot the under age drinkers, here are just six red flags:
1 They don't look around - regular punters always check out the pub because surprising as it is, most people come to the pub for the social aspect and like to see who is in. It is not unusual for a group of woman to come in look around and then immediately leave because there is a lack of male totty.
2. They try to find a seat immediately, preferably down the back or as far away from the bar as people. This is so the youngest of them can attempt to hide in the dark and they can have a committee meeting to decide who looks the oldest and is going for the round (for non-UK residents this is the special social custom of buying all the drinks in rotation). Most regular punters usually try to get served first (well, that's the third reason they came in!) and prefer to worry about a seat afterwards and anyway - you can always just stand near the bar, that's how you meet people!
3. Before smoking was made illegal they always either smoked at the bar or lit a cigarette as they were about to be served. Regular punters simply never did this, even the lowest drunken old bum never did this, they waited until they had secured their drink and then they lit cigarette. Regular punters who actually had a cigarette in their hand when they went to buy their round (to fulfill the complex anthropological necessities of doing this sometimes you have to quickly buy an extra drink for a new arrival just as you are settling down.) would make a great effort to hide the cigarette - not blow it in your face.
4. Behave as if you had roundly insulted them when you ask for their id. Real people who are the legal age are always very amused and smug whenever they are asked for their id and give it willingly and with great enthusiasm. One particulary short and baby-faced student who was actually 25 was always amused when asked for his ID - and boy did he have ID!
5. Avoid eye contact or use inappropriate eye contact. Under agers are always tempted to address their inner child during this stressful trial and find it difficult not to look down or in attempt to overcome this desire, stare straight at you like a mad wookie.
6. Pick the wrong gender of staff for the wrong reasons on the wrong night. Friday night is the end of the week and the traditional night for most customers to be engaged in the search for a sexual partner (...eh your all still with me...? Okay.) This means that women want to be served by the most attractive man behind the bar and men want to be served by the most attractive woman, at the very least you understand, it's practice. Gay men and women do the same thing but obviously with the same sex and if you are wondering how to tell the difference, perhaps you need to get out more. Saturday is for getting drunk, since you may as well console yourself at not having sex the previous evening, so you are not interested in which member of staff serves you.
So Ashley Heyer failed on number 4. And now she's the talk of slashdot. Paris Hilton, eat your heart out... at least until 5th June!
Is this an issue of copyright or privacy? (Score:4, Insightful)
Leaving aside the possibility that it is a valid ID, let's look at a hypothetical-- say only the picture has been forged. Say a legit ID was stolen/copied and someone slapped their face (or the face of someone else) on it. Or maybe it's an innocent "borrowed" big brother's ID or a picture with a similar enough face for the scammer to get by. The rest of the info is valid, and now the innocent cardholder has not only had their ID taken, but now their personal info has been posted on the Internet too!
How many of you have been asked for your birthdate, street name, or driver's license in lieu of a password as a kind of phone verification? I've had credit card companies and others do this all the time.
Even assuming the IDs ARE faked, forget shaming- is it not vigilante justice to violate the suspected faker's information online and subject them (or their victims) to an increased likelihood of identity theft? Does this violate state or federal privacy laws?
Just a consideration that occurred to me..
W
More info on artist (Score:3, Interesting)
Re: (Score:3, Interesting)
It's one thing to deny entrance into your business based on suspicion (as thousands of bar owners do silently each day) - yet another to make a public sp
Re:Not to support the DMCA itself... (Score:5, Informative)
The DMCA takedown notice couldn't have been filed in good faith without the admission of creating a fake ID to which the individual is claiming the rights due her by creation of this document. Also attempting to use a fake document to gain entrance to the establishment would be a crime in itself. Seperate from making the ID. To issue a DMCA takedown requires at least the admission of attempting to use a forged document and even if someone else created it, she would have to name that person or accept the responsibility of creating it herself. Which would be admission to committing a second crime.
If the ID was real and illegally confiscated, the notice would have been delivered by law enforcement officials and would not have been a DMCA takedown notice, it would have been a search warrant based on the account given by the victim and the supporting admission on the theifs website. Stealing someones ID is a crime and someone on the right side of the law can use the police to get justice especially if the theif freely admits it in their blog.
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Re:Confiscation (Score:4, Informative)
In fact, she mentions it in her blog, as well (emphasis mine):
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Re:Confiscation (Score:4, Informative)
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