Wednesday, August 26, 2015

Ashley-Madison uses DMCA Safe Harbor to collar leak; more on DMCA interim agent designation

Electronic Frontier Foundation, in an article this morning by Mitch Stoltz, reports that Ashley-Madison (through owner Avid Life Media) is using the Digital Millennium Copyright Act Safe Harbor to file takedown notices to platforms (like Twitter and Reddit) regarding personal information leaked by hackers.  It’s not clear if the takedowns could be narrowed to isolated tweets or posts.  (If Blogger or Wordpress got a takedown notice, would it apply only to one posting, or the whole blog? Would Twitter or Facebook have to remove an entire account over one post?)  YouTube will take down individual videos, and suspend or close accounts after multiple requests. More about this below. 

Whether copyright specifically protects personal information as a matter of law sounds like an interesting legal question (and if so, what about “Fair Use”?).  Other laws (tort and sometimes criminal) are in place to protect personal data, so the use of copyright is gratuitous, because it is an easier way to get something down in a hurry, requiring little gatekeeper’s oversight. It isn’t hard to see that this could get a lot of someone’s content removed (or a whole account) from some sites, to silence it (more details below).

EFF has often pointed out that that the DMCA Safe Harbor makes a convenient tool to quash embarrassing criticism, disguising the complaint as copyright.

Adi Robertson, of the Verge (a Vox subsidiary) has a story about a takedown notice regarding tweets by Joseph Cox on Motherboard, apparently containing fragments of the material, here.  Joseph Cox writes that the Tweet was “withheld” here so apparently Twitter will take down individual tweets.  He says the material had photographs from an Ashley-Madison office and some spreadsheet stuff that did not identify personal information.  

It’s easy to how this could merge with the “right to be forgotten” problem, at least n Europe, maybe here later if France gets its way.

It does appear that Avid Technologies (which owns the music composition software Sibelius) is a totally separate company from Avid Life Media (the trade dress designs are totally different).  The Ashley Madison site (of Avid Life) is still up and has a normal-looking welcome page this morning. It even displays a “Trusted Security Award” and an icon as a “SSL Secure Site”.

I have not personally looked at or encountered any material from the leak. I have no intention of looking for it. 

There is one other matter to mention here.  An attorney, Gordon Firemark, discusses the concept of “interim designation of a DMCA Agent”, a filing with the Copyright Office which he says any website needs to file if the site allows guest posts or comments.  

The purpose is so that a complainant would know where to file a DMCA takedown if a guest post or comment was itself infringing.   Without a contact point, a complainant still has the right to sue directly (although the complainant would have to serve process). I had been under the impression (I haven’t checked this in a while) that agency filing was possible only if you allow others to post and don’t moderate or pre-screen posts.  This question has come up before in the discussion of video embeds.  Section 230 would not protect the website owner from copyright claims (that’s what DMCA Safe Harbor does), “only” from libel or privacy or certain other claims.

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