Copyright is still high on the list of censorial weapons. When you live in (or target) a country that protects free speech rights and offers intermediaries immunity via Section 230, you quickly surmise there’s a soft target lying between the First Amendment and the CDA.
That soft target is the DMCA. Thanks to plenty of lived-in experience, services serving millions or billions of users have decided it’s far easier to cater to (supposed) copyright holders than protect their other millions (or billions!) of users from abusive DMCA takedown demands.
There’s no immunity when it comes to the DMCA. There’s only the hope that US courts (should they be actually involved) will view good faith efforts to remove infringing content as acceptable preventative efforts.
But terrible people who neither respect the First Amendment nor the Communications Decency Act have found exploitable loopholes to disappear content they don’t like. And it’s always the worst people doing this. An entire cottage industry of “reputation management” firms has calcified into a so-called business model that views anything as acceptable until a court starts handing down sanctions.
“Cursory review” is the name of the game. Bullshit is fed to DMCA inboxes in hopes the people overseeing millions (or billions!) of pieces of uploaded content won’t spend too much time vetting takedown requests. When the initial takedown requests fail, bullshit artists (some of them hired!) decide to exploit the public sector.
Bogus litigation involving nonexistent defendants gives bad actors the legal paperwork they need to silence their critics. Bullshit default judgments are handed to bad faith plaintiffs by judges who can’t be bothered to do anything other than scan the docket to ensure at least some filings exist.
At the bottom of this miserable rung are the people who can’t even exploit these massively exploitable holes effectively. The bottom dwellers do what’s absolutely illegal, rather than just legally questionable. They forge court orders to demand takedowns of content they don’t like.
Eugene Volokh of the titular Volokh Conspiracy has plenty of experience with every variety of abusive takedown action listed above. In fact, he’s published an entire paper about these multiple levels of bullshit in the Utah Law Review.
Ironically, it’s that very paper that’s triggered the latest round of bogus takedown demands.
Yesterday, I saw that someone tried to use a different scheme, which I briefly mentioned in the article (pp. 300-01), to try to deindex the Utah Law Review version of my article: They sent a Digital Millennium Copyright Act notice to Google claiming that they owned the copyright in my article, and that the Utah Law Review version was an unauthorized copy of the version that I had posted on my own site:
Welcome to the party, “I Liam.”
But who do you represent? Volokh has some idea(s).
The submitter, therefore, asked Google to “deindex” that page—remove it from Google’s indexes, so that people searching for “mergeworthrx” or “stephen cichy” or “anthony minnuto” (another name mentioned on the page) wouldn’t see it.
So what prompted Google to remove this content that “I Liam” wished to disappear on behalf of his benefactors (presumably “mergeworthrx,” “stephen cichy,” and “anthony minnuto”)?
Well, it was a court order — one that was faked by whoever “I Liam” is:
Except there was no court order. Case No. 13-13548 CA was a completely different case. Celia Ampel, a reporter for the South Florida Daily Business Review, was never sued by MergeworthRX. The file submitted to Google was a forgery.
And definitely not an anomaly:
It was one of over 90 documents submitted to Google (and to other hosting platforms) that I believe to be forgeries.
The writer continues to say it’s terrible that there are terrible people and you can’t blame Google, when there is definitely a case to be made that Google can indeed do more due diligence. When the DMCA came into effect, people noted that this was ripe for the raping and so it happened. Alternatives were suggested but discarded. DMCA itself is very very poor law and should be revoked as it protects something we shouldn’t be protecting in the first place and does so in a way that allows people to randomly take down content with almost no recourse.
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