Tuesday, March 16, 2021

California court considers a "new style" of (DMCA) copyright trolling


San Francisco 2018

Mike Masnick reports in Techdirt on a new style of copyright trolling.  The troll sends automated DMCA takedown notices to the platform (often YouTube or Instagram) and then agrees to allow the materials to be restored of the user pays the troll a fee, a kind of extortion.

So ENTTech (owning Paper Magazine) sued Okularity over this practice, regarding claims over photographs of celebrities.  The venue was in San Francisco.

The Court allowed this to go forward, on a variation of the usually unreliable 512(f) provision requiring a takedown party to have made a subjective fair use analysis of the use of the item.  ENTTech said this did not happen because the notices were cut-and-pasted and automated, and the Court is allowing the discovery phase of the case to go through.

It is not allowing the RICO analysis claim to go forward, however.

“Lawful Masses” Leonard French explains the case.  He notes that copyright does not seek to exist just because an owner doesn’t enforce it for a while on everybody, but trademark might.

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