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The Fallout From a Flickr DMCA Takedown 170

Posted by Soulskill
from the potholes-on-the-information-superhighway dept.
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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The Fallout From a Flickr DMCA Takedown

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  • by WillRobinson (159226) on Monday March 05, 2012 @06:19PM (#39254543) Journal

    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.

  • Hiding vs. Removal (Score:5, Insightful)

    by ShaunC (203807) on Monday March 05, 2012 @06:22PM (#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?

    • by AK Marc (707885) on Monday March 05, 2012 @06:28PM (#39254659)
      There's also no legal requirement to take down something upon receipt of a properly formatted DMCA takedown notice.
      • by FrangoAssado (561740) on Monday March 05, 2012 @07:11PM (#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].

        • by AK Marc (707885)
          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."
          • The "safe harbor" provisions are the only thing that keeps Flicks from being completely taken down when someone claims it's hosting material that violates copyright (yes, the DMCA sucks).

            So, saying that there's no "requirement" in this case is like saying that there's no "requirement" that you comply when someone points a gun at you and asks for your wallet. It's technically true, but irrelevant.

            • by AK Marc (707885)

              The "safe harbor" provisions are the only thing that keeps Flicks from being completely taken down when someone claims it's hosting material that violates copyright (yes, the DMCA sucks).

              You don't lose safe harbor in the future if you fail to follow it for any previous actions. They can do some verification on their own for individual claims and "violate" the DMCA on a case by case basis and not lose safe harbor for any future claims.

              So, saying that there's no "requirement" in this case is like saying that there's no "requirement" that you comply when someone points a gun at you and asks for your wallet. It's technically true, but irrelevant.

              More like you have a gun in your hand pointed at them. You can shoot or not, and shooting may "win" you that conflict, but land you in trouble. Failing to follow the DMCA for any one specific claim does not have the effect where anyone else with a claim can

              • Look, this is silly. Take the example of what happened to Napster [murdoch.edu.au]: in the end of their court battle, the court found that they didn't qualify for the "safe harbor" provisions of DMCA [which is exactly what would happen if Flickr decided to ignore DMCA notices]. Since they didn't qualify, the court ordered them to "monitor the activities of its network and to block access to infringing material when notified of that material's location" [which seems to be in part what you want Flickr to refuse to do]. They c

                • by AK Marc (707885)
                  The issue with Napster was that they were mostly infringing, so even if they did honor every DMCA takedown request, they'd have lost. You are agreeing with my point in the most disagreeable point possible. DMCA takedown notices were not related to the loss of "safe harbor" for Napster. And the same is true of Flickr.
                  • The issue with Napster was that they were mostly infringing, so even if they did honor every DMCA takedown request, they'd have lost.

                    On the appeal of the Napster case, the Ninth Circuit ruled that "Regardless of the number of Napster's infringing versus noninfringing uses", the question could be resolved on the basis of whether "Napster knew or had reason to know of its users' infringement of plaintiffs' copyrights" (taken from Wikipedia [wikipedia.org], I'm too lazy to rummage through the ruling itself right now).

                    If you read the "safe harbor" provisions from the text law itself, you'll see clearly that willfully ignoring notices of infringement surely

          • by mattack2 (1165421)

            But it IS a requirement, since they don't want to be charged with (and possibly convicted of) infringing themselves.

            • by AK Marc (707885)
              That's like saying door locks are a requirement because if you don't have them, you'll get carjacked. It may help in that case, but not a "requirement".
        • I don't think that's right.

          It is right. A DCMA takedown notice is a legal document that has to comply with the specific requirements of the act. You can't just write "Yo, doodz, take this off your webs" on a post-it and expect it to have legal weight. From the actual law:

          Probably most crucially, one of the things the takedown notice must have is:

          (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of

          • I don't think that's right.

            It is right.

            Uh, I'm confused. By "it is right" do you mean that Flickr could have chosen to not take down the picture? I don't see how it fits the rest of what you said:

            A DCMA takedown notice is a legal document that has to comply with the specific requirements of the act. You can't just write "Yo, doodz, take this off your webs" on a post-it and expect it to have legal weight.

            Sure. I was responding to someone who wrote "upon receipt of a properly formatted DMCA takedown notice". I take that to mean that the notice complies to the specific requirements of the DMCA.

            Probably most crucially, one of the things the takedown notice must have is: [...]

            Yes. The text you quoted is also present in the first page I linked. I just didn't think it was relevant enough to quote it. To be completely honest, I still don't

    • by lennier (44736)

      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.

      • 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.

        • 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, w
          • 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.

            • by LocalH (28506)

              No, Megaupload went far beyond mere deduping. Internal corporate correspondence was found showing that they willfully allowed and encouraged people to post material copyrighted by others.

            • Okay, I understand the difference. But deduplication -- as I already explained -- does not address the real issue, if by "deduplication" you mean they simply remove files with identical CRCs or a similar method. Because I could put my movie in a .zip file, with a text file included, and thus the CRC would no longer be useful for that purpose.

              Actual deduplication would require uncompressing compressed files and checking their contents, among other things. Doing that is both intrusive and time-consuming...
  • Actually (Score:5, Informative)

    by WiglyWorm (1139035) on Monday March 05, 2012 @06:23PM (#39254597) Homepage
    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: (Score:3, Funny)

      by Anonymous Coward

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

    • Re:Actually (Score:5, Insightful)

      by girlintraining (1395911) on Monday March 05, 2012 @06:43PM (#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 (Score:5, Insightful)

        by Cirvam (216911) <slashdotNO@SPAMsublevo.com> on Monday March 05, 2012 @06:52PM (#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.

      • by bhcompy (1877290)
        Would +1 Insightful if I had points.

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

    • 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 o

  • by gurps_npc (621217) on Monday March 05, 2012 @06:24PM (#39254619) Homepage
    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: (Score:3, Interesting)

      by PRMan (959735)
      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.
      • by LocalH (28506)

        How did you get this speculative tripe from the story at hand? The photog in question was served a DMCA complaint through Yahoo.

        And this got upvoted? What the hell...

  • 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.

  • 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?

    • 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.
  • by metrometro (1092237) on Monday March 05, 2012 @06:33PM (#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: (Score:3, Interesting)

      by byolinux (535260) *

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

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

    • by c0d3g33k (102699)

      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 gra

    • 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
  • 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

    • by c0d3g33k (102699)

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

    • by icebike (68054) *

      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 wit

    • by muridae (966931)

      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 u

  • ...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.

  • 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).
    • 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 a
    • by nedlohs (1335013)

      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'v

      • by MLCT (1148749)
        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] - the
  • 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.
  • by Restil (31903) on Monday March 05, 2012 @08:32PM (#39255945) Homepage

    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

    • by mysidia (191772)

      Shouldn't you be asking Flickr?

      Flickr is a yahoo property. If they're anything like Google, they are "too big" to talk to us peons who just utilize their free services.

      And i'm sure the flickr EULA contains enough cya that they won't be concerned about being sued by the user of their free service; ok, maybe you get a refund of the $0.

  • by pluther (647209) <pluther.usa@net> on Monday March 05, 2012 @08:51PM (#39256129) Homepage
    Doesn't the DMCA takedown request state somewhere something about asserting the statement is true "under the penalties of perjury"?

    Whatever happened to that?

    Has that ever been enforced?

    • by mysidia (191772)

      Doesn't the DMCA takedown request state somewhere something about asserting the statement is true "under the penalties of perjury"?

      The penalty of perjury doesn't apply to a DMCA takedown notice, unless the complaining party is not authorized to act by the copyright owner of a work alleged to be infringed; the " has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner" in (v) does not apply a penalty of perjury.
      Interestengly: the penalty of

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