Case Study: When DMCA Takedowns Go Wrong

I'll be the first to admit that there are problems with existing Intellectual Property Right Laws--from here IPR laws. They're long, they're confusing, they're weighed heavily in favor of big corporate interests, they're not enforced often enough, and they're so confusing that people believe myths are reality. No, not including "(c)[year]" on your art doesn't lose you the copyright (anymore). No, mailing your copyright to yourself does not constitute a legal argument of date of creation. And no, fair use does not mean you can use anything you want for commercial purposes if you have a legitimate claim on nonprofit/educational use. This is the problem photographer Jay Lee is facing right now. Jay Lee took a photograph of Downtown Houston in 2008. He put it up online as part of his blog and didn't expect it to be popular. He was wrong.

DMCA takedown formRecently, he decided to see how many people were using that photograph without his permission. The answer is a lot. He set to work sending in DMCA (Digital Millenium Copyright Act, perhaps the only recent IPR law to actually have an impact on artist's rights in a good way) takedown notices to get the unlicensed and unaccredited photos removed from various websites.

Then he sent a takedown notice that affected a lawyer/non-profit volunteer named Candice Schwager. Per Candice's account, she's been facing a lot of trouble because of her attempts to support a new candidate for a sheriff position in her town. The DMCA takedown from Jay Lee came in right when that other drama peaked and she immediately put the two together. Candice did not even believe that Jay Lee held a copyright to the photo in question at first. Instead, she thought he was a conspirator trying to shut down her political blog and fundraising sites to silence the challenger for the sheriff position.

Candice now admits that Jay owns the photo. However, conspiracy aside, she's crying out that she had the right to use his photo without permission. She runs a nonprofit legal assistance program for developmentally challenged children and premature babies and nonprofits get to call out fair use. Is she correct?

Not really. The copyright laws concerning fair use do mention nonprofits as a protected group. However, this is after they define what constitutes fair use:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright

DMCA TakedownCandice was not using the photograph for criticism, comment, news reporting, teaching, scholarship, or research. Therefore, even if she only used the photo on her nonprofit site, she was not covered by fair use. She also had that photo on for-profit sites and social networking profiles connected to her business. Fair use doesn't cover businesses at all.

Do I think Candice really intended to hurt Jay Lee's photography business? No. Do I think Jay Lee overreacted in sending out a DMCA notice in regards to Candice's site? No. Do I think we're getting the full story from either person? Nope. I will say that Jay actually does provide evidence while Candice describes evidence that doesn't exist anymore by her own admission. That might mean something here.

Do I think that Candice has a case in the lawsuit she's basing on Jay Lee's systematic attempt to shut down her child-focused nonprofit through malicious lies, "hacking," and fraudulent copyright attacks? No. Do I think that Jay is telling this story to be vindictive and ruin her business? No. Is this even close to a cut and dry case now that lawsuits are being threatened and dirty laundry is being aired? Sadly, no. It should have been. This was a very black and white copyright case turned gray by temper.

What are the takeaways from this bizarre story? Artists need to protect themselves. Stay on top of where your images are going. Use watermarks or sign up for a program like creative commons to make it clear how your art displayed on the Internet can be used. Watermarks discourage theft and creative commons spells out what is acceptable.

For non-artists, know where your images are coming from. Everything on the Internet is not free, especially images. Fair use only applies in a specific set of circumstances for a specific group of people. You cannot claim fair use when you unknowingly steal copyrighted content and you certainly can't sue someone because you stole their content and a DMCA takedown hurt your business.

Thoughts? Am I missing anything big in either side's claim? Share your ideas below. Love to hear from you.

The Link Rally: 25 May 2012

The Apparition Trailer