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?"

Rachel is cool

[stoolpigeon]

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."

from google cache

[Anonymous Coward]

here is the posting from google's cache that got this started. haha

Dear Ashley Heyer,

There was no way you could've known. You had this really astoundingly good Maryland fake ID, and you were on a date with a boy who was over 21 and would show you the world of beer. Except, one hitch, me.

Something seemed wrong. Maybe it was the way the hologram reminded me of iridescent paper I had used once at an art studio, maybe it was how my old Maryland license had a bump where the rather ghetto real hologram was- and yours didn't.

So I asked you for a back-up ID. It was a NYU undergrad ID. Never the fool I asked, where did you go to high school? You replied, actually I went to school in Iowa.

Iowa.

No one from Pikesville goes to school in Iowa. I know, because I went to school with half of Pikesville. It's a predominantly Jewish neighborhood, which would also bring into question that altruistic organ donor choice. And the road, oh Ash, you couldn't have known that only rural or inner city (DC) roads are labeled like that. You definitely couldn't have guessed that I knew the road naming patterns from Pikesville, because I drove home so many kids from my high school, and developers are never creative.

You jumped to the rescue with, it's the new Maryland ID, and I said, no, it's the old one. I have the new one. You can't drink here, darling, and I'm keeping your ID.

But you went to high school in Iowa. Your father, Bradley, donated 125$ to a campaign for Iowa State House representative, republican, Carmine Boal. You were a a page at the Iowa State House for a bit too. You did grow up on 3601 NW 92nd Place-- in Polk City IA 50226.

It does have a very nice photo on it, better than the real Maryland machines take. And you were sweet and sad and smiley, in that friendly Iowa way - even though you're a republican. I'm sure you cursed me when I was out of sight.

Maybe, some day, you'll come back to the castle, when you're 21, with your totally real Iowa ID, and order that glass of Lucifer you so desire. Perhaps we can talk politics for a while. Maybe you'll know how to defend yourself.

http://72.14.209.104/search?q=cache:jirEhYabN6wJ:w ww.rachelhyman.blogspot.com/+rachelhyman.blogspot. com&hl=en&ct=clnk&cd=1&gl=us&client=firefox-a [72.14.209.104]

Re:Odd Issues.

[DragonWriter]

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.

Re:Confiscation

[metlin]

I think by law she is expected to confiscate fake IDs - I could be wrong, though.

In fact, she mentions it in her blog, as well (emphasis mine):

See, I collect the fake ID's by confiscating them from underage people who attempt to buy alcohol. I've been informed that I'm required to do this. I don't mind because frankly, our bar is for adults, and not a NYU undergrad hangout. My bar has not had a problem with underage drinking, only other bars that my bar's owner also owns. I have never knowingly served a minor, and never will. Enough of my friends work in the service industry in the neighborhood that if I don't confiscate the ID's, I'm putting their jobs and livelihoods at risk.

Re:Not to support the DMCA itself...

[Romancer]

Two points.

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.

Re:yes. next question?

[TheRaven64]

(IANAL but...) US Government agencies are not allowed to claim copyright. For this reason, a government-issued ID might not be covered by copyright. In this case, the design would be in the public domain (unless held by a private individual or firm and licensed to the government). Derived works of Public Domain pieces may still be copyrighted, and so it is quite possible that this really is a copyrighted work. Owning a fake ID might or might not be illegal, but attempting to use one is fraud, which definitely is.

Re:Surprisingly, in theory, yes. At least here...

[BewireNomali]

I live in NY and in New York State a bartender can be held liable and even arrested for serving underage customers. I bartended in college and had a friend arrested for serving underage customers and I was myself arrested for being an underage bartender. So it wasn't so much playing police aid as protecting herself from potentially being arrested or otherwise held liable, which includes getting fired and blacklisted as a bartender. Posting on her blog was a little much though - i agree.

new york has become a relatively sedate city and is not a high crime area anymore (not as high as before anyway) - but still uses police tactics from a high crime era. so police troll for arrests/wrongdoing, etc. it's not uncommon to be in a club that is raided - and patrons all have to produce ID - it's an easy way for cops to find people with outstanding warrants and it also drums up business for the city - as clubs found to have underage patrons lose their cabaret licenses and have to pay fines and might even be shut down. All for the great bureaucracy.

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

[Talgrath]

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:Not to support the DMCA, but..

[Mattintosh]

You can die for your country at 18, but you can't have a beer. If you're old enough to die for your country, you're also old enough to have a beer.

If you're in the military, you can buy and consume alcohol, but only at a military base. Try again.

Re:Confiscation

[theBraindonor]

A liquor store clerk is not authorized in most states to confiscate anyone's ID under any circumstances. However, they are allowed to retain possession of the ID until law enforcement can be reached to ensure that the ID is indeed valid. As a former liquor store clerk (booze paid for college!), I've been asked this by many a patron. After I inform them of the law, I ask them if they would like to wait for law enforcement to verify the ID, or they can just leave it with me. In 5 years of work on a college campus, not a single patron ever volunteered to stay.

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

[hamburger lady]

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?


actually, most rabbinical authorities are totally cool with organ donation anyways as saving a life is a bigger mitzvah than avoiding 'desecrating' a dead body.

Re:yes. next question?

[insignificant_wrangl]

This might differ state to state, but I doubt. Through the miralce of the interweb:

The following summaries explain the law regarding the use, possession and production of falsified identification documents and the penalties for such actions.

COV 18.2-204.1. Fraudulent use of birth certificates, driver's licenses, etc.

• It is illegal to use another's identification as one's own.
• It is illegal to possess or sell an ID for the purpose of establishing a false identification.
• Persons who possess, use or distribute fake IDs are charged with a Class 1 misdemeanor. If the document is used to purchase a firearm, the charges increase to a Class 6 felony.

This comes from Virginia [state.va.us], and a quick search showed similar laws in NC and CA. It is illegal to own a fake ID, regardless of your intentions.

Re:Power trip more like it

[Nephilium]

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

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

[Anonymous Coward]

No, actually you do not have to file anything.

From the US Federal Copyright website:

"The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright." - http://www.copyright.gov/circs/circ1.html#wci [copyright.gov]

Re:Not to support the DMCA, but..

[BewireNomali]

I posted this above: in NY a bartender can be held liable for and even arrested for serving a minor. I know from first hand experience - I bartended in NY during undergrad and a friend was arrested for serving a group of girls with fake IDs. Interestingly enough, I was arrested a while later for being an underage bartender. She was a bit of a douche for posting the stuff online, but her diligence protects her job, possibly her criminal record, not to mention the other unmentionables that occur when you enter the new york city corrections system.

so in short she potentially has a lot to lose. also, the bar owners lose cabaret licenses and liquor licenses - which is a death knell for the business.

let it not be understated that bartending in NY can be very lucrative because of population density and the type of clientele. So this is not trivial to the bartender or the bar owner.

Re:Of Course

[technos]

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:Not to support the DMCA, but..

[Anonymous Coward]

"The minimum drinking age on a DoD installation located outside the United States shall be 18 years of age. Higher minimum drinking age will be based on international treaties and agreements and on the local situation as determined by the local installation commander."

http://usmilitary.about.com/od/justicelawlegislati on/a/drinkingage.htm [about.com]

Re:hm

[dAzED1]

No it (my previous post) shouldn't (state that). making invalid claims isn't illegal, unless you're under oath or a few other specific things. IE - claiming you're a police officer, etc.

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

[ubuwalker31]

It is a little more complicated than that. From judiasm.about.com, a known chalachic authority:
"Organ donation is permitted in the case when an organ is needed for a specific, immediate transplant. In such a case, it is a great mitzvah for a Jew to donate organs to save another person's life. Organ donation is not necessarily limited to dead people: Someone who can afford to spare a kidney, for example, may donate one to someone in need.

Yet in consideration of the prohibition against desecrating the body, it is forbidden to simply donate to an "organ bank," where there is no specific, immediate recipient. Furthermore, for general medical research or for students to practice in medical school, a Jew is not permitted to donate organs.

Even when there is a specific, immediate transplant, you need to be careful, because oftentimes in order to obtain organs as fresh as possible, a doctor will remove the organ before the patient is actually "dead" according to Jewish law. The doctor is therefore effectively killing the patient, which is of course forbidden.

The bottom line is that each case comes with its own myriad of detailed halachic factors. So before gong ahead with any procedure, you need to consult with a rabbi well-versed in Talmud and Jewish law. It is clearly not as simple as blankly signing an organ donation card."

And to the parent of the post who accuses the bartender of "religiously profiling" a jewish kid who was using a fake id and giving him an earful...I would have too. Thats why Jewish people do, look after each other, and make sure that each member of the tribe know that stepping out of line is a shame to the whole community.

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

[goatsandmonkeys]

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:Wouldn't the picture at least be copyrighted?

[dgatwood]

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:Rachel is cool

[Anonymous Coward]

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:Not to support the DMCA, but..

[Mattintosh]

I did a bit of research and I stand partially corrected...

It seems that what I said was the case until 1982. (source [about.com])

Since 1982, the legal drinking age for U.S. military personnel (on active duty only!) has been the same as the age legally enforced by the location of the military base. Or in the case of bases within 50 or 100 (conficting sources here) miles of an US-to-[other nation] border, the base commander has the option to allow it to go as low as the lowest age legal for either the local laws or for the nation across the border. Also, bases in other countries can have a drinking age as low as 18, but also dictated by local laws and customs. (source [potsdam.edu])

Apparently, Wisconsin and New Hampshire are/were proposing to allow military bases in their states to have a drinking age of 18.

Re:Not to support the DMCA, but..

[Anonymous Coward]

Incorrect.

It used to be correct, but it was changed quite a few years ago. I was in Germany in 98-01 and they were unable to sell alcohol to persons under the age of 21 from the Class 6 on base. You could go off base and have as many as you liked, however.

Obligatory Facebook link

[bkgood]

http://nyu.facebook.com/s.php?q=Ashley+Heyer [facebook.com]

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

[DoorFrame]

But a license is not "pure facts," the facts were arranged in a particular way and with particular choices. Feist only covers facts when they are arranged without any creativity, a fake license could very well have been arranged in a creative or unique way. Now, if the fraudster's fake was the standard license design, it would probably be unprotected, but we'd really need to SEE the thing to know for sure.

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

[cbr2702]

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.

Re:Confiscation

[UglyTool]

A liquor store clerk is not authorized in most states to confiscate anyone's ID under any circumstances.

Well, then the clerks at the liquor store are working under different laws than those of us who have 'just' worked at bars. In Ohio, bartenders and bouncers are obligated to retain any and all fraudulent identification. I took a course offered by the Ohio Division of Liquor Control, and was informed that, indeed, we had to retain fake IDs. As well as learning neat tidbits, like that it is okay for underage people to drink with their parents or over age spouses. Of course, the person who was trying to use the fake ID could request that a police officer verify it but, for some reason, that never came up with me.p>

Also:

MANUFACTURING FALSE ID:

It is illegal for any person other than the state to manufacture, sell, or distribute in any manner any identifaction card issued for the purpose of establishing a person's age that displays the great seal of Ohio, the words "Ohio", "State", "Official", "Chauffer", Commercial Driver", "Driver", "Operator", or any other designation that represents the card as the official driver's license or identification card of Ohio

Source (PDF warning) [ohio.gov]

That's just Ohio, though, but I can imagine that about every state has laws very similar.

It is in New York State

[Anonymous Coward]

I checked the NY laws, creation, possession and/or use of a fake ID that looks like a government-issued ID is punishable by up to 7 yrs prison time.

wings.buffalo.edu/law/bclc/web/NewYork/ny3(a)(2) [buffalo.edu]

NY Penal Code Section 170.10 Forgery in the second degree

  A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:

    3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality;

  Forgery in the second degree is a class D felony.

  NY Penal Code Section 170.25 Criminal possession of a forged instrument in the second degree

  A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10.

  Criminal possession of a forged instrument in the second degree is a class D felony.

She Only Claims The Photo

[mrcaseyj]

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:Power trip more like it

[CmdrGravy]

I was on holiday in New York ( from the UK ) a few years ago when I was 27 or 28 or something. In the UK I haven't been asked for ID since I was 15 so it was quite surprising the amount of places I was asked in NY.

It was even more surprising and not a little annoying when morons in some bars wouldn't even accept my passport as valid ID !

I think this Ashley person comes across as a slackjawed idiot whereas Rachel seems like an amusing person to know. I don't think Ashley will get very far with this ridiculous behaviour.

Re:Possesion

[db32]

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.

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

[Dare nMc]

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...

Confiscation

[Slashdot Parent]

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.