DMCA Takedown Notice For a Fake ID

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?"

Wouldn't the picture at least be copyrighted?

Wouldn't the picture at least be copyrighted?

Re:Wouldn't the picture at least be copyrighted?

she did take the picture and the DMCA notice only claimed ownership of the picture in the ID and the signature. see my comment below. I helped her file the DMCA notice.

Re:Possesion

I have a CDL drivers license and the backgrounds on those used to be/are in my area, a different color then the regular licenses were there was a color for the over 21 crowd and under21 crowd when the license was issued.

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.

Re:Possesion

1. Police are free to confiscate illegal items so there is no "but its mine". I encourage you to tell the cops they can't take your drugs because they are yours

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.

Confiscation

In all states that I am familiar with, the alcohol vendor is actually required by law to confiscate fake IDs. Since the store owner believed (incorrectly, of course) that your ID was fake, she was required to confiscate it. Had she not confiscated it, she could be fined.

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.

She Only Claims The Photo

As noted by the parent post, a lot of comments below assume she is claiming authorship of the fake ID. She's not. She's only claiming authorship of the photo and signature. I suppose her defense will be that someone stole her photo and created a fake ID without her permission. I'm not sure that story will be sufficient to create a reasonable doubt in the minds of the jury if she gets charged with forgery.

Re:Wouldn't the picture at least be copyrighted?

Yes, but when you put the picture on a fake ID, said ID (and any image of it) is not copyrighted; it's an (illegal) derivative of a state or national identification and can be posted anywhere for any reason. This just sounds like some rich asshat trying to find a sneaky way around having been caught with an illegal ID.

Re:Wouldn't the picture at least be copyrighted?

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.

Re:Wouldn't the picture at least be copyrighted?

he production of a fake ID is still illegal even if it is never used.

(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...

About "artisitc"

This is something that has confused me for a while. We frequently ask whether something is "artistic in nature" enough for copyright protection, but then I keep thinking about what the constitution says about copyright:

Article I, Secion 8: The Congress shall have the power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

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?

Re:Wouldn't the picture at least be copyrighted?

What is the purpose of an ID card?

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.

Re:Wouldn't the picture at least be copyrighted?

forgery of an official document necessarily infringes on the issuing agency's copyright for the original's graphical design

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.

yes. next question?

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.

Of Course

Do you really believe the DMCA is about copyright? Its about having a stick to poke when anybody says anything you don't like on the Internet. The people that created and passed it don't care if others use it as well, as long as *they* get to use it

Re:Of Course

Having false identification in and of itself is a crime in all 50 states of the union. You don't have to even use it. The mere existence of the fake ID is enough. (In some states, you don't even have to have it to be charged with a crime. They just have to prove you wanted one and were capable of obtaining it.)

Re:Of Course

Nah, a fake ID is illegal full stop. It's a similar idea to banknotes having to have "SAMPLE" written on them even if they're obviously not banknotes ie on other printed material - it is (afaik, ianal) illegal to reproduce or attempt to reproduce or imitate any official document even if it has incorrect information. For example, any form of 'fake ID' runs afoul of this but there is nothing to stop me creating my own 'ID Card' with my false information, as long as it doesn't look too much like an official one.

Re:Of Course

You rang?

Re:hm

Considering that Vint Cerf, the real inventor of the Internet, says that Al Gore's claims in the (admittedly not very good) way he worded them were correct, I have only one thing to say: "What's a groovy ex-vice-president?" "An algorithm!"

land of opportunity?

...or land of litigation and bullshit? you decide.

Rachel is cool

and a good writer and apparently an artist as well. She just doesn't just take the id and post it - she writes some hilarious commentary to go with it. I wish her the best and hope that this young gal isn't as rich as she says, or I fear that it may not go well. While Rachel is completely in the right, justice is expensive.
 
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

To boot, her name lends itself to a built-in joke while she confiscates some kid's ID:

In Soviet Russia, Hyman busts YOU!

Re:Rachel is cool

If she asked for an ID, and reasonable documentation was provided, she's fulfilled her obligation under the law, and the liability now rests with the minor.

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.

Re:Rachel is cool

God, I love people who only read the part of the law that supports their position.

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:

7. (a) In any proceeding pursuant to subdivision one of section
        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.

Emphasis mine. In other words, the defense applies only if she scans the mag strip on the ID, not just looks at it. I can imagine that not everyone has a strip reader dedicated to carding teens, can't you? So, yes, she would be liable, even if you don't like her attitude.

Re:Rachel is cool

"Hilarious. Because nothing's funnier than making fun of people who are younger than you."

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.

Re:Power trip more like it

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

Odd Issues.

Nope.

"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.

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.

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.

forgery, uttering, and big fish-little-pond-ness

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.

• It's not her job to play Twenty Questions, or Detective, or engage in religious profiling. Apparently the girl is from a "mostly Jewish" neighborhood, and while Jewish law prohibits desecration of a dead body, that does not mean someone from a "mostly Jewish" town WOULDN'T be an organ donor. Maybe their parents were Jewish, and they're agnostic, for fuck's sake. Why should someone have to explain all that to get a beer?
• Confiscating a license, or any other ID, is a great way to end up in a heap of trouble unless it is specifically allowed in your jurisdiction (which it is, in many cases. But stupid if it's not.) The right way: take the ID, walk to the office, call the cops. Wrong way: taunt her, make fun of her, and NOT call the cops.
• Posting people's IDs, forged or not, is a great example of spitting into the wind. The state is probably not terribly pleased at seeing examples of counterfeit documents posted, and if it turns out it IS a legitimate ID, now you're doubly fucked, because you just confiscated a valid ID, provided proof, AND copied an official state document, AND posted private information. If the forged ID came from a ring, they're going to be pissed their ID made it onto the net. The girl, her parents, friends, etc are going to be pissed too.That's a great way to wake up one morning and find your tires slashed and a rock through your windshield. Lose, lose, lose situation. And for what? Some attention-whoring on the 'net....

Re:forgery, uttering, and big fish-little-pond-nes

It's not her job to play Twenty Questions, or Detective, or engage in religious profiling. Apparently the girl is from a "mostly Jewish" neighborhood, and while Jewish law prohibits desecration of a dead body, that does not mean someone from a "mostly Jewish" town WOULDN'T be an organ donor. Maybe their parents were Jewish, and they're agnostic, for fuck's sake. Why should someone have to explain all that to get a beer?

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.

Confiscating a license, or any other ID, is a great way to end up in a heap of trouble unless it is specifically allowed in your jurisdiction (which it is, in many cases. But stupid if it's not.) The right way: take the ID, walk to the office, call the cops. Wrong way: taunt her, make fun of her, and NOT call the cops.

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.)

Posting people's IDs, forged or not, is a great example of spitting into the wind. The state is probably not terribly pleased at seeing examples of counterfeit documents posted, and if it turns out it IS a legitimate ID, now you're doubly fucked, because you just confiscated a valid ID, provided proof, AND copied an official state document, AND posted private information. If the forged ID came from a ring, they're going to be pissed their ID made it onto the net. The girl, her parents, friends, etc are going to be pissed too.That's a great way to wake up one morning and find your tires slashed and a rock through your windshield. Lose, lose, lose situation. And for what? Some attention-whoring on the 'net....

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

Um ...

... isn't claiming to be the "creator"/"artist"/"author" of a fake ID admitting to counterfeiting? Perhaps not the smartest move ever. And since a DMCA 'takedown notice' is a legal document denying authorship of the fake ID later would probably be perjury.

I sure hope this ends badly for the underaged drunk wannabe.

Does it matter?

Even if it is art, would it matter?

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...

In fact it is a piece of "original" art. Though I doubt they'd want to go through court with it, over here they could.

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 ... pffft, let a lawyer get creative, they get money for that. And see if the other side is REALLY interested in seeing this in court. But then, that would be here. I dunno if in the US, copyright violations are already superior offenses to crimes against the state.