The Fallout From a Flickr DMCA Takedown 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?"
Comment removed (Score:5, Insightful)
Easy but it was not done. (Score:5, Insightful)
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:Of course there should (Score:5, Insightful)
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.
Hiding vs. Removal (Score:5, Insightful)
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:Actually (Score:5, Insightful)
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:Of course there should (Score:5, Insightful)
some sort of not shown due to DMCA status
Funny, that's what MegaUpload did. And look what happened to them...
Re:Actually (Score:5, Insightful)
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:Of course there should (Score:4, Insightful)
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 (Score:5, Insightful)
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 (Score:5, Insightful)
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.
Why are you asking us? (Score:4, Insightful)
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
Re:Of course there should (Score:3, Insightful)
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.