Tag Archive for: DMCA

Sons Of Confederate Veterans Sued Over Bogus DMCA Takedown

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As you’ll recall, earlier this month we wrote about this bizarre situation in North Carolina, in which the University of North Carolina agreed to give a bunch of racists $ 2.5 million to settle a lawsuit before the lawsuit had even been filed. The details of the story came out due to some inquisitive digging by North Carolina lawyer Greg Doucette. And, in response to him publishing the details, including a “victory” letter sent by the head of the North Carolina Sons of Confederate Veterans (in which it is admitted that they obviously had no legal standing to sue), Doucette’s Dropbox account was blocked thanks to a bogus DMCA letter from the group. Doucette retained lawyer Marc Randazza, who sent the Sons a letter demanding they use the $ 2.5 million to fund scholarships for African American UNC students or face a lawsuit for the bogus takedown. That letter argued that the bogus DMCA notice violated Section 512(f) of the DMCA, which (in theory) is supposed to stop abusive takedowns by punishing “misrepresentations” in takedown notices.

As I noted at the time, Section 512(f) of the DMCA is effectively dead, as courts rarely enforce anything about it and, at best, have said that those issuing a DMCA notice simply only need to consider fair use and if they, in their minds, think it’s not, can still send the takedown. However, Randazza and Doucette have decided to move forward anyway and have sued the NC Sons of Confederate Veterans, along with its leader Kevin Stone, and Dropbox (who blocked Doucette’s account). As is fairly typical of a Randazza filing, it’s an entertaining read:

Some claim that memorials like these are there to celebrate “southern heritage” rather than as memorials to the subjugation of African Americans.

When Silent Sam was unveiled in 1913, KKK supporter Julian Carr announced that the Confederate soldiers it honored had saved “the very life of the Anglo Saxon race in the South,” and told the following story:

“One hundred yards from where we stand, less than ninety days perhaps after my return from Appomattox, I horse-whipped a negro wench until her skirts hung in shreds, because upon the streets of this quiet village she had publicly insulted and maligned a Southern lady, and then rushed for protection to these University buildings where was stationed a garrison of 100 Federal soldiers. I performed the pleasing duty in the immediate presence of the entire garrison, and for thirty nights afterwards slept with a double-barrel shotgun under my head.”

With a metaphorical flamethrower taken to this myth of “southern pride,” student protesters tore the statue down on Monday, August 20, 2018. The University of North Carolina did not restore the statue to its former “glory.”

On November 27, 2019, the Sons of Confederate Veterans filed a lawsuit against UNC for its failure to return Silent Sam to his location, despite lacking standing (and knowing it) to bring such a suit. Despite the fact that the NCSCV lacked standing, seven minutes after the suit was filed, a state court judge approved a settlement between the parties.

The lawsuit has been filed not in North Carolina, but in Norther California (the other NC). The reasoning here is that because this lawsuit is over a DMCA takedown notice to Dropbox and Dropbox terms require users to consent to Northern California jurisdiction:

This Court has personal jurisdiction over Defendants because a) in using Dropbox, they consented to personal jurisdiction and venue in the state and Federal courts in San Francisco, California; and b) the sending of the takedown notice at issue constitutes sufficient minimum contacts under Cal. Code Civ. Proc. § 410.10 and U.S. Const., Amdt. XIV, where Defendants purposefully directed their acts toward California, committing an intentional act, expressly aimed at California, causing Plaintiffs harm in California as they have been deprived of the full use of their California-based Dropbox account.

This also appears to be the sole reason that Dropbox is listed as a defendant in the case. The complaint notes that it is not asking for any money from Dropbox, just to have Doucette’s account restored:

Dropbox is named as a defendant herein only to achieve complete relief; Plaintiffs seek no damages against Dropbox.

Well, these are the stated reasons for filing in California. I am assuming that the actual reason for suing in Northern California is that probably the only two successful 512(f) lawsuits both came in the Northern District of California and the 9th Circuit has probably the most caselaw on such claims — but that includes an appellate ruling that the “good faith” requirement is subjective. That is, if the takedown notice filer believes in their minds that the DMCA notice was legit, that’s enough. Of course, one other possible reason for filing in Northern California rather than North Carolina? Folks in California might not be quite as sympathetic to the Confederacy as folks in North Carolina.

As much as I’d like to see better rulings on 512(f) (or for Congress to fix it so that it has some teeth), I find it unlikely that this case will get very far — and, frankly, the California filing feels a bit like jurisdiction shopping. It’s not totally egregious as such (Dropbox is here in northern California and there are legit arguments for why the recipient of the takedown may be the proper party for determining jurisdiction), but… it’s still a stretch. The declaratory judgment for non-infringement seem like much stronger claims, though they won’t generate monetary returns.

In the meantime, the situation with UNC and the statue itself is far from over. Outcry and protests over the sketchy deal has resulted in at least one UNC funder pulling a $ 1.5 million grant to the University. And it doesn’t sound like the outcry and protests are calming down. Separately, a group of UNC students have moved to intervene in the original case (the one that was filed and settled in mere minutes) trying to have the settlement tossed and then the case dismissed entirely.

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Apple Filed A Silly, Questionable DMCA Notice On A Tweeted iPhone Encryption Key… Before Backing Down

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Copyright continues to serve its purpose as a tool for censorship, it seems. This week there was some hubbub over Apple’s highly questionable decision to send a DMCA takedown notice over a tweet by a security researcher who goes by “Siguza,” and who appeared to publish an iPhone encryption key on Twitter:

Twitter took it down upon receipt of the takedown notice, but later put it back after Apple rescinded the takedown — either realizing that the takedown was bogus or futile (or, I guess, both).

You can understand (sorta) why Apple would want to protect the key, but copyright seems like exactly the wrong tool for the job. Of course, that’s often the case, but copyright is such an easy tool to abuse to try to silence speech that it is often the preferred tool of would-be censors. This is just one example. But it does raise questions. Is an encryption key even copyright-eligible? That seems highly unlikely. Copyright only is supposed to apply to the creative elements of a work, and it would be difficult to argue that an encryption key meets the “creative” level necessary. US courts have already decided that phone numbers are not subject to copyright (even made up numbers), so it seems unlikely that an encryption key would pass muster for getting a copyright.

Potentially Apple could have been making a DMCA 1201 “anti-circumvention” argument as well — but even that seems silly, and only highlights the problems of the anti-circumvention provisions of Section 1201 of the DMCA. When a single tweet with a single code is seen as “circumvention” then there’s a big problem — and that problem is the law.

It’s good that Apple backed down on this, though it still highlights the problems of the DMCA takedown process, and how it can be used unfairly for censorship — even if that “censorship” completely backfired this time.

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Nintendo Does The Nintendo: ‘Mario Royale’ Fan Game Becomes ‘DMCA Royale’… And Is Now Dead

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I’ve often made the point before that Nintendo hates you, dear Nintendo fan and general gamer. Between taking down fan-made levels, fan-made games, and going to war with all the ROMs everywhere, Nintendo values an overwhelmingly tight grip on its intellectual property rights far more than the natural desire by its own fans to express their fandom. The speed and reliability of Nintendo’s lawyerly involvement has become something of a legend on the internet, with folks that make these expressions of fandom often joking upon release that it’s only a matter of time before the suits come calling.

This held true with Mario Royale, a delightfully simple little web game created by a fan that allowed players to play through Mario Bros. levels alongside up to 74 other simultaneous players. The classic game had never been used for this sort of thing and it was quite interesting to watch how it all worked. It’s also worth noting that the game was playable for free, meaning there was no commercial aspect to it. Despite that, you all know what happened next.

Given Nintendo’s litigious reputation when it comes to fan games, it’s perhaps no surprise that the “game got DMCA’d,” as creator InfernoPlus noted in a comment on the game’s YouTube trailer over the weekend. InfernoPlus himself didn’t seem all that surprised. In an interview with Vice last week,he said he “anticiapate[d]” a letter from Nintendo. “I’d say it’s [a] 50/50 [chance of attracting Nintendo’s legal ire], maybe more, because it got so big all of a sudden. If [Nintendo] does, I can just re-skin it.”

Now, that’s precisely what’s happened. Following a June 21 “DMCA Patch,” the game that was Mario Royale is now DMCA Royale. While the gameplay is unchanged, the game’s music, sound effects, and in-game sprites have been replaced with much more generic versions—including a new player character named “Infringio.”

Beyond how clever this all is on the part of InfernoPlus, the changes made to the game are important for other reasons as well. By changing the assets to no longer be clear rips from the original Nintendo game, it should have put the game in a place where it was no longer infringing. By changing the name of the game, the characters, and the messaging around the game to focus on the fact that the original was DMCA’d by Nintendo, the game also transformed from a cool experiment into something in the realm of parody and social commentary. That last bit is important, because it should have also transformed the game into something that would pretty clearly fall under fair use.

Which is why it’s odd, given both of those factors, that you also no longer can play DMCA Royale, as Nintendo’s lawyers apparently issued threats over that game as well. At the URL for the game, all that is left is a message from InfernoPlus saying it had to take the new game down as well.

Unfortunately, Uncle Nintindie’s lawyers have informed me that, despite my best efforts, the game still infringes their copyright.
They refused to give me specifics (I asked multiple times) but it would seem that either the level design or general mechanics are still too close to the original game.

As a result I can’t just blindly change the game and leave it up. Doing so would put me at risk of further legal action. I’ll likely talk in detail about the game and it’s short lifespan on my youtube channel in the coming weeks.

I’m sorry about this guys. It was fun while it lasted.

It is equally unclear to me what Nintendo’s continued problem with the reskinned game could be. The specific expression in the game assets that might have been copyrightable were removed. What was left was a transformative work that may have mirrored the basic game mechanics from the original Mario Bros. game, but those aren’t copyrightable. On top of that, as I mentioned above, this new work seems like pretty clear fair use to me, in that it both serves as commentary on Nintendo’s aggressive behavior and is also a clear parody of the original game. Were this to go to court, it’s hard to see how it wouldn’t result in a win for InfernoPlus.

But, given the legal war chest at Nintendo’s disposal, that doesn’t ultimately matter. A small developer making a game as a fan and as a cool little experiment isn’t going to risk its existence to have such a legal fight. It’s worth pointing out briefly here, and I’ll expand on this in a separate post, that Nintendo had many other options than DMCAing this game to hell at its disposal. Why didn’t it engage any of those other options?

Because Nintendo hates you, that’s why.

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Magistrate Judge Says Grande Shouldn’t Be Able To Use The DMCA Safe Harbors Because It Didn’t Really Terminate Infringers

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We’ve written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG’s “vicarious infringement” claims, while letting the “contributory infringement” claims move forward. In October, the court rejected UMG’s attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.

The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande’s use of the DMCA safe harbor defense. I still have general issues with the idea that the “repeat infringer” part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can’t make use of the safe harbors because… it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.

So, without a policy, they couldn’t have reasonably implemented it… and thus, no safe harbors. Given the facts of the case, that’s perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn’t have a policy, but because it didn’t follow its own policy).

Of course, that doesn’t necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted “that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue.” Effectively, UMG will need to show that Grande “induced” infringement by its actions, and Grande will claim it did no such thing. But it can’t just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.

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