15 Comments

  1. alex

    Here’s the problem: It’s not a win, it’s a default. No caselaw is made, nothing is established. Instead, Automattic gets pretty much whatever they ask the court for, but they may find it hard to actually enforce the judgement. Moreover, because it establishes no caselaw in the area, it’s an empty judgement and certainly not a win.

    If the defendant had come to court and argued a case, then it might be a win. As it is, it’s like winning an argument on the internet…. you only win when the other person doesn’t participate!

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  2. mikeschinkel

    Nope, Automattic’s attorneys are not expensive. Not if you compare them. With. Every. Other. Attorney. Out. There.

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  3. Pam Blizzard

    It can be called a win, in that Automattic has shown it’s willing to up the ante up and push back.

    They’re sending a message: If you’re going to file a DMCA take down notice, you better be ready to defend it in court if you feel that strongly about it.

    This might make those who might file DMCA’s frivolously think twice about whether it’s worth their time. That’s a win for writers like Hotham.

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  4. sunilwilliams

    If we can look past the politics (and I’ll be the first to admit that they are worth *not* looking past), there is another problem:

    DMCA enforcement mechanisms are all-too abusable.
    Big company gets complaint. Big company acts on complaint, failing to look at details.

    It’s great that Automattic rectified the problem eventually, but only after it was brought to their attention dramatically. Most self-publishing people don’t have the resources to defend themselves from a takedown.

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  5. alex

    Well, let’s see. Lawyers are expensive. Flying from the UK to the US to appear in court is expensive in time and money. If Mr Steiner never intends to visit the US to be served it’s unlikely the judgement will ever truly be fulfilled.

    Moreover, and it’s very important: By not appearing, he rendered the judgement meaningless. There is no finding of fact, no precedent set, no ruling which can be pointed to in other cases. It’s an empty default judgement against a guy who appeared to be all but collection proof.

    It’s nothing – but yes, the torrent freak guys love anything anti DMCA.

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    • Jeff Chandler

      Well, I guess that’s one way of looking at it.

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      • alex

        Jee, it’s just that your conclusion is wrong. The case does not set any precedent at all. It’s just an empty default judgement. No law has been decided, the case was not won or lost on it’s merits. Basically, nothing happens, so it cannot be cited in future cases as a caselaw example.

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    • Samuel "Otto" Wood

      Yeah, but there really aren’t a whole lot of 512(f) cases out there, so anything surrounding it is somewhat interesting.

      You’ve got:

      – OPG v. Diebold, which says that if you misuse DMCA takedowns against clearly fair use material, you can be held liable for doing so.

      – Rossi v. MPAA, which says that the “good faith” bit means that a copyright holder has to knowingly make a false takedown to be held liable, and it can’t be an unknowing mistake.

      – Lenz v. Universal Music, which backs the fair use thing again, and says that copyright holders must evaluate fair use before issuing takedowns.

      And that’s about it. There’s probably a few more, but 512(f) doesn’t come up all that often. Not enough challengers which make it as far as a court case. The typical process for a DMCA takedown works like this:

      1. Copyright holder issues takedown
      2. Material is taken down
      3. The person who had the material taken down can send a counter claim, stating that the material is not infringing.

      Now, in a fair world, what is supposed to happen next here is that a) the material goes back up and b) if the copyright holder wishes to file suit against the person (not the provider) in a court, then they can totally do so. What typically happens is that the host of the material either never informs the person about the DMCA takedown, or just cuts that person off, or never bothers to have any means to accept counterclaims and thus there is no way to get the material back up, etc. It’s a crap process, basically, because while it does provide safe-harbor to the providers, it doesn’t give them any reason to care about counterclaims, as such. It’s a rare provider that will go to bat with you and file suit.

      Providers like Automattic and WordPress.com should be pissed that they basically have to take down content and treat their own users badly just because any jerk can send them a letter and have no repercussions happen even if the material is reinstated later. It interferes with their business and the relationship between them and their users.

      The courts are not setup for the case of 512(f) claims being brought against every single false DMCA takedown request, but that’s what needs to happen to stop the glut of them. File a false takedown order, and not be willing to sue when the counterclaim comes in = pay the fees, sucker. Copyright holders do have rights, and they need to exercise those rights responsibly or pay for the consequences of exercising them irresponsibly.

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      • Paul Sieminski

        Quick but important clarification: just because the judgement was issued by default doesn’t mean it’s invalid. The court still did examine the case on the merits, and had to decide whether the damages we sought were allowed under the law. The court answers these questions whether or not the defendant shows up to argue, and we had to submit a few legal briefs to make our case (hence the big legal bill).

        Now that we have the judgement – we can collect the damages from Nick Steiner (if he ever turns up), and more importantly, the decision is on the books. As Otto points out, there’s very little case law in this area, and previously *no* case law about what damages were available if a plaintiff were to win. It’s important here that the court held that we could recover attorneys’ fees and costs of suit…which were by far the biggest piece of damages. Now, any future victims of DMCA abuse can cite our case as precedent, and use it to collect damages/attorney’s fees in cases like this. If you’re interested, the case citation is: Automattic Inc., et al. v. Steiner, No. 13-cv-05413-JCS, 2014 WL 7894441 (N.D. Cal. Oct. 6, 2014).

        It also sets the precedent that Automattic will fight back against DMCA abuse. Hopefully that, along with the rule that victims can collect damages (esp costly attorney’s fees) may cause future DMCA abusers to think twice before they pull the same stunt. Yes, it bites that the abuser will probably never pay up and so will go unpunished this time. But we did make a little bit of good law here, and don’t want that to be overlooked.

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        • Mike Schinkel (@mikeschinkel)

          Huge Kudos to Automattic for fighting back on this. I hope they can continue to do so such that it automatically becomes expensive to misuse DCMA takedowns, pun intended. :-)

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        • alex

          “The court still did examine the case on the merits, and had to decide whether the damages we sought were allowed under the law.”

          yes, but they did not have to consider if in fact that the DMCA was invalid by hearing both sides, rather it accepted the Automattic claims because of a lack of rebuttal, and grants was was requested in the plaintiff’s brief as it was within the allowance of the law.

          In simple terms, you cannot take this case into a courtroom on the next case to show anything other than what a default judgement may look like. Otherwise, there is nothing there.

          “previously *no* case law about what damages were available if a plaintiff were to win” – and all you have done establish what was already known, that the law does allow for these things, like any other case.

          Yes, it’s a win – but the other side wasn’t playing. It would be a much bigger win if the defendant had argued the case and lost. Here, it’s just taking the plaintiff’s request for damages and accepting it by default.

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