| | | I might have accidentally run across another copyright troll. For those who don’t know what that means, the term refers to someone who abuses the Digital Millennium Copyright Act (DMCA) for personal gain. The most abusive case to date is Righthaven. Here’s a brief summary:
Righthaven was a copyright-enforcement business dreamed up by Las Vegas attorney Steve Gibson. He managed to convince the largest newspaper in Nevada, the Las Vegas Review-Journal, to let him use its copyrights to sue more than 200 mostly small-time bloggers and demand several thousand dollars apiece from them for reposting Review-Journal articles. Righthaven struck a similar deal with the Denver Post, which led to about 50 more lawsuits.
The plan went on for over a year. It included lawsuits against a cat blogger, a mildly autistic hobby blogger, and one Ars writer; but by mid-2011, Righthaven had been absolutely pounded in court. They lost a few cases on fair use grounds. Even more profoundly, Righthaven was found not to have standing to sue at all. The contract it struck with the Review-Journal didn't transfer the whole copyright, a judge found; it merely transferred a "bare right to sue," which is not allowable under a legal precedent called Silvers v. Sony Pictures.
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The Righthaven v. Hoehn case was actually won on two separate grounds: first, that Righthaven didn't have standing to sue, and second, that Hoehn's posting of the Review-Journal article was "fair use," even though he posted the entire piece. Source: arstechnica.com Righthaven appealed… and lost. See: eff.org.
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Way back in 2007 I posted a short AP article that began:
NEW HAVEN, Conn. — A Greenwich mortgage broker admitted that she helped her college-age son recruit investors in a multimillion-dollar hedge fund scam but said she really believed he was a savvy money manager.
Ayferafet Yalincak, 51, pleaded guilty to conspiracy to commit wire fraud, a charge that could send her to prison for up to five years. Her 22-year-old son, Hakan, has pleaded guilty to bank fraud and wire fraud and faces up to 50 years in prison for managing the scheme.
Message 23145570 The above SI URL -- eight years later -- was supposedly just ordered removed because it violated the DMCA. The filer, attorney Michael David Kessler, notified Google about the URL, which then simply passed it onto SI. SI, not wanting to offend Google, then deleted the content. I can't blame SI for playing it safe, and nor do I really care about the content of that post. However, I do care that SI (and Google for that matter) are essentially getting scammed. Here's all we know of the request:
SENDER: Law Offices of Michael Davis Kessler[Address listed as "private"]
Sent on January 02, 2016
RECIPIENT: GoogleReceived on January 02, 2016
SUBMITTER: Google
NOTICE TYPE:DMCA
Copyright claim #1
KIND OF WORK:Unspecified
DESCRIPTION: The work is an article dated July 14, 2006 written by the AP and appearing on the NBC website. The use of the article on the NBC website is authorized use granted via a license. The unauthorized version below is copied into a message board verbatim. I am aware of the provisions of the DMCA and do not believe any of the safe harbor or fair use provisions apply and have not received a response from the webmaster for Silicon Investor boards.
ORIGINAL URLS: nbcnews.com
ALLEGEDLY INFRINGING URLS: Message 23145570
Source: lumendatabase.org Could it be possible Kessler represents the Associated Press, the copyright holder? Or is he perhaps representing someone who is trying to purge the internet of an unflattering story? Well, there's an easy way to find out by simply looking at what other stories have Kessler crying foul:
Copyright claim #1
KIND OF WORK:Unspecified
DESCRIPTION: The work is a story written by Kari Milchman. The story was first published on March 20, 2007. The entirety of the work is owned by Mr. Kari Milchman and West Side Spirit. As explained below, the infringing story is an identical copy, bearing Ms. Milchman's name. I have contacted the webmaster and received no response. We have also checked the who is data and could not locate a working phone number for the second website. Since the work is owned by Ms. Milchman, its use is not authorized by any provision of the DMCA and not covered by the safe harbor provisions, we request the unauthorized link by NY Press be removed from Google search.
ORIGINAL URLS: westsidespirit.com
ALLEGEDLY INFRINGING URLS: nypress.com
Source: lumendatabase.org
Yep, another story on Yalincak. As only legal copyright holders are allowed to invoke the DMCA, we have to assume Kessler also must represent westsidespirit.com. Hmm. The problem there is that Kessler actually admits he does not, but apparently is contending that he doesn't have to. Rather, because he hasn't been able to contact the actual copyright holder to verify she's OK with someone reproducing her story, he is entitled to demand it be deleted. Not sure whether to reply LOL or WTF! Yes, no action has been taken. But it gets worse.
Here is Kessler trying to tell the San Diego Tribune they had no right to publish a story from the AP. Not all AP stories. Just one. One about his client, apparently Yalincak. See: lumendatabase.org. Again, no action has been taken.
Here are a couple more. Same topic: Yalincak. The copyright holders this time are the NY Daily News and Florida State University. How convenient Kessler represents only companies that want stories they wrote about the exact same person deleted on DMCA grounds.
lumendatabase.org
lumendatabase.org
So who is Michael Davis Kessler anyhow? I have no clue. He's not listed on martindale.com. He doesn't show up in Google except as the filer of copyright complaints about the Yalincak arrest. And make no mistake, he *is* claiming to be the copyright holder: google.com. And given that Google says they honor 97% of such requests, why not (see: google.com But despite those odds, so far, Google has only deleted one of the requested URLs: my post on SI. Why? Likely because SI volunteered to take action, believing the request to be valid.
Again, I'm not blaming SI. Rather, I'm helping SI recognize if indeed they've been conned. As I joked with Dmitry:
I am also "aware of the provisions of the DMCA and do not believe any of the safe harbor or fair use provisions apply" to ANYTHING on SI "and have not received a response from the webmaster for Silicon Investor boards" about deleting EVERYTHING on SI. So please delete EVERYTHING! I didn't lie. I am aware of the DMCA. And for sure I never got a response from SI (which I assured by not sending a request to them lol). So does that mean SI is forced under the DMCA to delete everything on SI? Of course not. But apparently attorney Michael Davis Kessler, or at least the person using that name, thinks that's not just sound logic, but the law. I beg to differ. And I contend he's breaking the law.
- Jeff |
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