BLOG BIZ: Welcome to the future of blog wars: Tepido Lance Braman temporarily takes down Debito.org by filing DMCA against this site’s critique of his J Times Letters to the Editor
Posted by debito on October 7th, 2011
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Hi Blog. Sorry Debito.org was offline for about a day and a half. Welcome to the future of cyberwarfare, not through spam guns or DNS attacks, but now through a pseudo-legal apparatus.
On October 5, Lance Braman (see below), one the small but very vocal members of Tepido, a cyberstalking blog that obsesses over Debito.org, filed a Digital Millennium Copyright Act (DMCA) infringement claim against this blog (see below).
This was regarding two of Braman’s short Letters to the Editor published at the Japan Times all the way back in 2008. I cited them in full on Debito.org for critique (as they mentioned me and my actions specifically by name). You can see how those allegedly problematic Debito.org sites looked via the Wayback Machine, click here and here.
SUMMARY: WHAT THIS MEANS
The issue here is that procedures against making frivolous and nuisance DMCA claims about online materials will have to be tightened up, or else DMCA will be utilized for blog wars and cyberwarfare. People who are not necessarily the actual copyright holder of cited works (masquerading as the copyright holder and filing the DMCA claim on their behalf) are claiming violations that aren’t there (because under the Fair Use Doctrine, things may be in fact cited, excerpted, and quoted without permission in many circumstances for the purposes of review, critique, etc.).
ISPs (servers), however, often get spooked by a simple email DMCA notice and, without further investigation of the veracity of the claims, unilaterally take the material offline. Although a quick-fix measure for the ISPs, this is in fact counterproductive, because it will encourage more frivolous DMCA claims and ultimately make the ISPs work harder (or just encourage further cybercensorship). All evidence for these claims follow below.
Ironic, that. Cyberstalking site Tepido’s main minions (there are but a dozen or so) complain the most about allegations of “censorship” at Debito.org, i.e., that they can’t be heard on Debito.org because I delete their comments (now you can see why; they’re fundamentally unscrupulous people, and they have an odd and unhealthy fixation about this small, insignificant blog). So, in retaliation, the Tepidos themselves hypocritically try to censor — by deleting primary source materials on Debito.org, or by just trying to interfere with the operations of or take down the site altogether. Unvetted DMCA claims just further encourage and enable those people. It’s not going to stop here, so let’s get thinking about how this Act is being abused and plug the loopholes.
EVIDENCE:
Here is the redacted complaint I received from my server yesterday:
////////////// EMAIL BEGINS ///////////////////////
From: XXXXX Customer Support Team (support@XXXXXXXX)
Subject: [XXXXXXXXXXXX] URGENT: Copyright Concerns…
Date: October 5, 2011
To: debito@debito.org
Hello,
We have received another formal DMCA (Digital Millennium Copyright Act)
notice regarding allegedly infringing content hosted on your site. The
specific content in question is as follows:
http://www.debito.org/?p=1814
http://www.debito.org/?p=2083
The party making the complaint (Lance Braman (hljlance@yahoo.com)),
claims under penalty of perjury to be or represent the copyright owner of
this content. Pursuant to 17 U.S.C. § 512(c), we have removed access to
the content in question.
http://www.loc.gov/copyright/title17/92chap5.html#512
If you believe that these works belong to you and that the copyright
ownership claims of this party are false, you may file a DMCA
counter-notification in the form described by the DMCA, asking that the
content in question be reinstated. Unless we receive notice from the
complaining party that a lawsuit has been filed to restrain you from
posting the content, we will reinstate the content in question within
10-14 days after receiving your counter-notification (which will also be
forwarded on to the party making the complaint).
In the meantime, we ask that you do not replace the content in question,
or in any other way distribute it in conjunction with our services.
Please also be advised that copyright violation is strictly against our
Terms and Conditions, and such offenses risk resulting in immediate
disablement of your account should you not cooperate (not to mention the
legal risk to you if they are true).
http://www.xxxxx.com/tos.html
We also ask that if you are indeed infringing upon the copyright
associated with these works that you delete them from your account
immediately, and let us know once this has been done. We also ask that
you delete any other infringing works not listed in this takedown
notification, if they exist.
If you have any questions, please don’t hesitate to let us know.
////////////// EMAIL ENDS ///////////////////////
This is odd, because under the Fair Use Doctrine:
17 U.S.C. § 107 [...]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.
But this was not taken into consideration. Spooked by the DMCA, my server just took these blog entries down pending my answer. Unfortunately, this meant that my entire site went down without a grace period to investigate (I couldn’t even see the blog entries in question), and took a good 24 hours to get reasonably straight.
This was on the heels of another, I’m sure not unrelated, DMCA attack, regarding my site parodying the republication of the Japanese version of Little Black Sambo back in 2005 (a later version of this site is visible on the Wayback Machine here):
////////////// EMAIL BEGINS ///////////////////////
From: XXXXX Security Team <support@XXXXXXXXXX>
Subject: [XXXXXXXX] URGENT: DMCA Takedown Notification…
Date: October 4, 2011
To: debito@debito.org
Hello,
We have received a formal DMCA (Digital Millennium Copyright Act) notice
regarding allegedly infringing content hosted on your site. The specific
content in question is as follows:
http://www.debito.org/chibikurosanbo.html
http://www.debito.org/ckscover.jpg
http://www.debito.org/cks1.jpg
http://www.debito.org/cks2.jpg
http://www.debito.org/cks3.jpg
http://www.debito.org/cks4.jpg
http://www.debito.org/cks5.jpg
http://www.debito.org/cks6.jpg
http://www.debito.org/cks7.jpg
http://www.debito.org/cks8.jpg
http://www.debito.org/cks9.jpg
http://www.debito.org/cks10.jpg
http://www.debito.org/cks11.jpg
http://www.debito.org/cks12.jpg
http://www.debito.org/cks13.jpg
http://www.debito.org/cks14.jpg
http://www.debito.org/cks15.jpg
The party making the complaint (Tomimasa Inoue , e-mail:
zuiunsya@inbox.com), claims under penalty of perjury to be or represent
the copyright owner of this content. Pursuant to 17 U.S.C. § 512(c), we
have removed access to the content in question.
http://www.loc.gov/copyright/title17/92chap5.html#512
NOTE: I have moved the files offline to the base of your ‘debito’ FTP
user.
If you believe that these works belong to you and that the copyright
ownership claims of this party are false, you may file a DMCA
counter-notification in the form described by the DMCA, asking that the
content in question be reinstated. Unless we receive notice from the
complaining party that a lawsuit has been filed to restrain you from
posting the content, we will reinstate the content in question within
10-14 days after receiving your counter-notification (which will also be
forwarded on to the party making the complaint).
In the meantime, we ask that you do not replace the content in question,
or in any other way distribute it in conjunction with our services.
Please also be advised that copyright violation is strictly against our
Terms and Conditions, and such offenses risk resulting in immediate
disablement of your account should you not cooperate (not to mention the
legal risk to you if they are true).
http://www.xxxxxxx.com/tos.html
We also ask that if you are indeed infringing upon the copyright
associated with these works that you delete them from your account
immediately, and let us know once this has been done. We also ask that
you delete any other infringing works not listed in this take down
notification, if they exist.
If you have any questions, please don’t hesitate to let us know.
////////////// EMAIL ENDS ///////////////////////
Aside from the allowances for critique and parody granted under the Fair Use Doctrine, this DMCA notice against the Chibi Kuro Sanbo parody site is even more suspicious. The president of Zuiunsha Inc. is not “Tomimasa Inoue”, but rather “Tomio Inoue” according to the media (the sender(s) even got the claimaint’s name wrong!) Moreover, since all that information in the notice was easily obtainable from the website in question (if they bothered to cite it right), anyone could pose as the copyright holder and send a DMCA nuisance notice, regardless of any alleged safeguards against perjury (which are of questionable effectiveness anyway, given that Zuiunsha is in Japan, the server is in the USA). There are also issues of the age of the work (illustrations are appropriated from very old illustrations copyright somebody else, if not too old to be copyrighted anymore); it also nukes the entire site hosting my parodies, which are NOT copyright Zuiunsha.
To confirm the actual identity of the sender, I asked my ISP to investigate the IP address of the email. Their response was that “an individual’s IP address is not tied to their identity”. Great. So let’s update that old saying about cyberspace, without the dog: ”On the Internet, nobody knows you’re not the copyright holder.”
I advised my ISP to adopt these countermeasures against frivolous DMCA:
=======================================
1) After receipt of a DMCA, notify the webmaster without taking down the site, and give webmasters 24 hours to take measures to either redact/delete the text or justify their citation under a pertinent section of law (e.g., Fair Use Doctrine, etc.). It those measures are unsatisfactory, then take down the site in question after 24 hours (which will certainly fall under the legal requirement of “expeditiously”).
2) Verify that the claimant under the DMCA is actually the copyright holder, using the IP address of the email. If they are not the copyright holder, then they cannot obviously file the DMCA.
=======================================
I hope this advice is taken.
Anyway, if Debito.org does go down again, please understand it is probably due to another DMCA attack, probably connected to those cyberstalking fanatics at Tepido. Be patient. It’ll take some time, but I’ll get the site back up again, of course. Arudou Debito
Final note: Tepido’s modus operandi is unrepentant exposure, so in that vein:
Since Braman has deleted his LinkedIn Profile from Linkedin.com and apparently from the Wayback Machine too, here’s GM Lance Braman’s position of department head at HobbyLink Japan (courtesy public documents at www.hlj.com, so belay any claims of cyberstalking):
(Wonder if this will also result in a frivolous DMCA. If so, here’s the primary source: http://www.hlj.com/documents/hljwholesale.pdf)
ENDS
October 7th, 2011 at 5:33 am
This makes my brain hurt.
October 7th, 2011 at 5:48 am
[...] visited, solo-bloggers about Japan-side expat issues, debito.org, is offline this morning. [Update: The site is back. No more 404 [...]
October 7th, 2011 at 7:08 am
As I mentioned before, I experienced something similar when critically commenting on Japan’s government policies on a (well-known?) Japan-Forum. But, as the saying goes, “Flak means you’re close to the target”
October 7th, 2011 at 7:33 am
Oh Jeez. The guy’s going off the deep end. I guess the bulb in his head has burnt out when his pet theory got challenged.
October 7th, 2011 at 8:08 am
The internet certainly seems able to bring out the worst in people, sometimes…
This is, the employer you refer to above has a perfectly servicable domain and their own e-mail server. So why would someone working for them have a generic “yahoo.com” email address that gives the appearance of being a company email address?
Have you considered, with the apparent innacuracy of the details in the second complaint, and what appears to be a strange — and easily created public — email address in the first, that there may be some third party in the middle stirring this up?
There’s the possible smell of an agent provocateur here…
October 7th, 2011 at 8:34 am
Ril, why in the world would someone who has a job use their work email address for something personal? In most companies that is a fireable offense.
October 7th, 2011 at 9:10 am
Find a server host that is NOT located in the USA, then any DMCAs you may receive (should) have no teeth and your site should stay up.
October 7th, 2011 at 10:27 am
By the way, you mean DMCA, right? (Digital Millennium Copyright Act)
– Yes, quite. Flare up of the old dyslexia, I guess. Thanks.
October 7th, 2011 at 10:36 am
I’m as big a fan of fair use as anyone, and I think frivolous DMCA takedowns are extraordinarily harmful to freedom of speech, but posting scans of an entire book or the full content of a letter or article hardly qualify as having the things “cited, excerpted, and quoted” on your website. Prune your quotes more judiciously and you’ll be much more immune to this sort of attack. (Glad to see your site back online, BTW!)
October 7th, 2011 at 11:03 am
I remember the hobbylinkjapan e-mail address. Wasn’t this dude…er…freak a fan of yours, once? Or was the name Scott?
– No no, Scott, the boss of HobbyLink, is still a friend of mine and a very good, level-headed guy.
October 7th, 2011 at 11:18 am
Sad news that these people are stooping to an even lower level of human behavior.
I wonder what Mr. Braman’s employer would think of his actions?
October 7th, 2011 at 11:50 am
Heck of a coincidence that these two different people complained within a day of each other, too…
October 7th, 2011 at 11:59 am
The guy is a dork, a freak, a stalker, wtf is its problem? Im guessing a severe case of low self esteem and self hate. Why would anybody spend 24/7 365 obsessing over somebody?
October 7th, 2011 at 12:05 pm
I’m not sure what the point in posting LB’s photo is. As Ril says, we don’t even know that it is LB.
In any case, it might be a good idea to quote relevant parts of the copyright legislation concerning fair use:
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;”
You do tend to reproduce works, including LB’s letter in full.
October 7th, 2011 at 12:07 pm
So publishing material on a blog that might be copyrighted is a no no but mirroring someobodys blog on another site, slandering him, discrediting him, defaming him, stalking him, obsessing over him, making every effort to destroy his book reviews, and other freak behavior is perfectly acceptable and legal? I actually saw one of his delusional post where they claimed Debito was a stalker, but I dont see Debito trying to take down their stalker site, insulting them here or anything about them unless its a last effort defense move. Whoever follows these people are truly sad indeed.
October 7th, 2011 at 12:09 pm
Well done on getting this back up, Debito. We missed you. It seems these petty tactics can be hard to get around if you have a cowardly host. So glad you’ve got an understanding host for this site. Hope that you keep a backup of all this somewhere, in case he tries to get at you again.
I think the fair use policy is there to allow quoting, whilst prevent wholesale republishing of the complete original text; your changes mean that I don’t think he can resort to the DMCA now.
As you probably don’t follow the happenings on tepido.org, just to let you know that the claimant in this incident, parted company with “Tepido” some months ago, deleting all posts/comments that he had made there. There was a lot of puzzlement on tepido.org about why, but no reasons were ever revealed accept for the site owner saying he had blocked his admin access. So I don’t think it is fair to style this as an attack by “Tepido”. With the deletion of Mr Braman’s LinkedIn profile as well as all his contact with tepido.org, and now this take down notice, maybe he is trying to cleanse his digital presence from the web?
– He’d find that hard to do with his history of Letters to the Editor in the Japan Times. Will he issue a DMCA notice to them too?
October 7th, 2011 at 12:17 pm
“Notdelusional Says:
October 7th, 2011 at 8:34 am
Ril, why in the world would someone who has a job use their work email address for something personal? In most companies that is a fireable offense.”
Not my point. This email address (unless debito.org made it up to shield the real address) just looks made up. And it looks like it is made to look like their work email address, even though HLJ have their own email addresses.
Just makes me think this might be somebody else, deliberately trying to stir the pot.
– Maybe. But my getting punked or not is irrelevant. My server is the one with the veto gates in this relationship, and took these claims seriously enough to take Debito.org completely offline. My server admins are the ones who have to come up with some policy to deal with DMCA notices to safeguard against them being frivolous or potentially fraudulent.
And fuck you for saying that I would make up that email address. That is the email I received from my ISP.
October 7th, 2011 at 12:19 pm
@John
I think the best idea is to actually let these tepido freaks employers know that they do this on the employers time… all the hate evidence is stupidly posted at Tepido, and can be easily used against them…
ken y-n clearly posts and aproves LB and the like as per his time stamps during their work hours… either that or they get alot of lunch breaks…
me thinks that ken (who works as a security officer at panasonic) and lance at (hobbylink) need a liitle more work to fill their day…
or you can do as i have done let their employers know that you wont buy their products until these humans stop attacking others livelihoods … fair is fair
October 7th, 2011 at 12:23 pm
I’m in a bit of a rush here, so there will probably be a few inaccuracies in this, but I thought I should explain a little about the legal situation the ISP faces. Most of my knowledge is gleaned from reading reports at arstechnica.com
1. Under the DMCA, your site host can be held fully liable for your copyright infringement. Their ONLY DEFENCE is if they respond PROMPTLY to a DMCA takedown notice, no questions asked. Your request for 24 hours notice is, therefore, a non-starter.
2. I don’t think your host WANTED to take down the whole site. In the Little Black Sambo case they just took down the images. However, for technical reasons, when the allegedly infringing materials are part of the text of a blogpost, they can’t easily take down just that post.
This is because their view of the system is different from yours. They see the system as a bunch of files. The Black Sambo images were all separate files, so they could take them down individually. The text of your blogposts are squirrelled away somewhere in a monolithic database file which they are not on intimate terms with, so they just took down the database file, and your whole site went with it.
3. You do have the right to file a DMCA counternotice, in which you can claim fair use. It is NOT the site host’s role to decide who is right and who is wrong They just have to administer the notice and counternotice. From that point onwards, it’s a matter for the courts.
If you want the site managers to improve their service I suggest the following:
1. They should explain to the recipients of DMCA notices how to file a counternotice.
2. They should investigate ways to efficiently takedown blogposts, etc, without taking down the whole site.
– And 3. they should ascertain the claimant is actually the copyright holder.
Enforcement of the DMCA is pretty flawed, as this case showed. I wanted to point that out so we can start a discussion on how to improve it.
(And PS: In terms of the separate-files issue you mention (within chibikurosanbo.html), they didn’t only take down the images in question. They took down the whole html as well. Thus we need more sophistication.)