{"id":23752,"date":"2014-02-18T11:57:41","date_gmt":"2014-02-18T17:57:41","guid":{"rendered":"http:\/\/rankexploits.com\/musings\/?p=23752"},"modified":"2014-03-09T06:30:18","modified_gmt":"2014-03-09T12:30:18","slug":"dmca-takedown-linda-ellis","status":"publish","type":"post","link":"https:\/\/rankexploits.com\/musings\/2014\/dmca-takedown-linda-ellis\/","title":{"rendered":"DMCA Takedown: Linda Ellis"},"content":{"rendered":"

Serial DMCA writer and Author of The Dash<\/a> is at it again<\/a>: issuing dubious DMCA takedowns. She sent my host one. I’m posting to solicit tips on writing a counter DMAC. <\/p>\n

Some of you are familiar with Linda, who tends to send letters demanding very large sums of money<\/a> to people who post her poem in practically un-circulated pdf newsletters, very lightly read blogs, and so on. When I wrote about this previously<\/a>, I included a hotlinked parody image of a Linda-Ellis-Troll caricature<\/i> similar to the one posted at copyright trolls<\/a> and April Brown’s post about Linda Ellis<\/a>.
\nI am contemplating writing a counter DMAC. <\/p>\n

Of course writing such a counter-DMCA could potentionally trigger a time consuming counter productive lawsuit which Ellis might file in response. I’m fairly certain I would win. So it’s just a matter of “Is it worth the potential hassle and drama merely to keep a hotlink in a post?” I’m currently undecided. However, I generally advise people (myself included) that in these situations, it is usually best to avoid the drama. (Note that the Minnesotan’s for Global Warming took a similar tack when threatened by Mann with a suit about… whatever it was exactly. For that reason they are not now involved in what appears to be an endless suit like Mann vs. Steyn\/Simberg\/CEI\/NRO. Queue the “Chilling Effects”<\/a> music we play when we suspect attempts to censor speech<\/a>. )<\/p>\n

What I’m hoping for today is for legal-eagles or anyone with copyright experience to suggest how much information belongs in a counter-DMCA response. My main questions are :<\/p>\n

    \n
  1. Should I be brief and merely state that I believe that the DMCA is mistaken? Or should I include some discussion of the specific issues? (I’ll discuss these below.) <\/li>\n
  2. If I write do write this, what legal precedents should I consider? (Once I am aware of are discussed below.)<\/li>\n<\/ol>\n

    Alternatively, if someone could suggest path that will result in Ellis’s issuing this DMCA in a way that might highlight the whole story — including the issues surrounding her business plan that resulted in someone making that image in the first place– that might be a more time effective method of dealing this issue. After all: my priority in writing the post in which I embedded that image was to disseminate information about Linda Ellis’s business model. <\/p>\n

    Now returning to the direct copyright issue: Because I am contemplating the counter DMCA, I would like to invite feedback on my view that the DMCA tak-edown is mistaken, I am providing the main reasons why I believe DMCA is mistaken. My belief the DMCA is mistaken should be enough to permit me to write the counter-strike. Unfortunately, it would not be sufficient to permit me to prevail in court (should Ellis sue). To prevail, I would need to be (a) correct in my belief and (b) well represented. That said, if I am obviously wrong, I would like to know that. So, I would especially like the view of people who know copyright law to comment on my thoughts about where copying or display of this image might fall. (Note: I live in the the northern district of the 7th circuit.)<\/p>\n

    Here are the two main reasons I think I would prevail in court. <\/p>\n

    Reason I: The image is not and never was “displayed” at my site<\/strong><\/i>, or at least it is not “displayed” as that term is defined under US Copyright law <\/em>which is the relevant definition in any suit alleging a copyright violation. That is: I do not host the image it is hosted elsewhere but displayed by means of an inline link. This is called “hotlinking”. Hotlinking has never been ruled “display” under US copyright law and has, in fact been ruled by the 9th Circuit court of Appeals to not<\/I> fit the definition of “display” (see Perfect 10 v. Amazon.<\/a>) Some might note that I live in the 7th circuit court of appeal which declined to treat Perfect 10 v. Amazon as a precedent when ruling inFlava<\/a>. But it seems to me that Posner’s ruling in Flava<\/a> protects me just as well as Perfect 10 would and as such reduces<\/I> the uncertainty in rulings that might occur at any level below SCOTUS. <\/p>\n

    The relevant paragraph assessing whether myVidster was infringing by framing videos hosted elsewhere<\/i> would seem to be <\/p>\n

    As the record stands (a vital qualification, given that the appeal is from the grant of a preliminary injunction and may therefore be incomplete), myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer.<\/p><\/blockquote>\n

    That is to say: as far as I can tell, Posner’s ruling ends up agreeing with the 9th circuit ruling. It’s just that being at the same circuit court level, he did not treat the 9th circuit as binding his court. (Lawyers, do correct me if I’m totally bungling this interpretation.)<\/p>\n

    Now, on to Reason II: The image posted is a transformative use of the original its use falls under fair use provisions of the copyright act. <\/i>. My copying and display would not violate any copyright Linda Ellis<\/i> holds even if<\/i> I hosted it. (Note: I am of course, assuming Linda Ellis did not create this derivative image and that she does not own the copyright for the derivative image. In fact I don’t now who did create the image; I suspect one of two people. Neither of them has complained.) <\/p>\n

    There are four aspects to fair use. I think all four cut in favor of anyone and everyone being able to use the derivative<\/i> image with permission of the author of the derivative<\/I> image and without regard to the wishes or inclinations of the underlying image that was transformed. I’m not going to belabor all four. But I’ll touch on two, which I think with respect to this use are the most important:<\/p>\n

    Factor a: “Purpose and Character of Use”<\/em>:
    \nThe purpose and character of the use is commentary and speech about Linda Ellis<\/i>: that is to say, it attempts to make a statement about Linda Ellis through imagery. This is protected speech. To communicate an opinion about Linda Ellis (and use in articles commenting on her business model involving heavy copyright demands) the image in question was ‘transformed’; this would be evident by side by side inspection. (I would link, but I think I can’t do that until after I send a DMCA counter-strike!)<\/p>\n

    In the original image which currently displays on her “about page”,Linda Ellis’s eyes, complexion and teeth suggest a persona who might write sickly sweet poems ( www. linda-ellis. com\/about-linda-ellis.html remove spaces to see). This fits her marketing spin as some sort of inspirational poetess. In the transformed image her eyes burn a fiery burning red, her skin has been rendered in a pebbly lizard like green, and she has been given a down hanging fang, all of which suggests the an evil fairy tale troll. After transformation, the image communicates the message “Linda Ellis is a Troll”, an opinion formed by some who are aware of her business practices aimed at demanding heavy fees for what amount to de minimus uses of her poem.<\/p>\n

    As far as I can determine, at least some courts interpret creating transformative images of the sort shown in the image Linda Ellis complains of in her DMCA filing both “transformative” and “parody”; the later enjoys broad protection. While some argue that parody requires the item copied<\/i> must be parodied and the person transforming the image intends to parody the subject of the image<\/i>, the judges ruling in Kiennitz v. Sconnie Nation LLC (W.D. Wis. Aug. 15, 2013)<\/a> ( pdf<\/a>) notes that the issue of “what is parodied” is not an either\/or one. Transforming the expression conveyed by the can be viewed as parody aimed at the image itself<\/i> which could be sufficient to deem this use parody. This is precisely what is happening here. <\/p>\n

    In any case however, parody is not the only transformative use that falls under fair use and in his ruling Judge Crocker cited a 2nd circuit court of appeals ruling in Cariou_v_Prince_-_2d_Cir_2013<\/a>. I will leave it to interested readers to read that. <\/p>\n

    Factor B: The effect of the transformed images use as a market substitute for the original image<\/em>: There is no<\/em> effect on the market for that image of Linda Ellis or at least none that counts under copyright law<\/i>. Note that this might seem to In the first place: this image is not commercially valuable to anyone other than Linda Ellis. There are no millions and zillions of people ‘out there’ who wish to specifically purchase images of Linda Ellis and I’m pretty sure she doesn’t even try to market this image. In anycase, no one who wants an original image of Linda Ellis would use the transformed version as a substitute. One might argue that the fact that the transformed images exists means Linda herself<\/i> might no longer wish to use the original image because it’s no got “bad karma”, but that<\/I> effect specifically does not count under copyright law. <\/p>\n

    The other two factors are “Nature of the copyrighted work” and “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.” In Kienitz the judge ruled the former factor was a wash with equally strong points on both sides of the issue and that the balance favored the defendant when assessing the latter factor. If I understand, the Judge’s view is that those creative-non-factual elements that were in the original were precisely what was transformed and so not “copied”. I think<\/i> the same would hold for the current image. <\/p>\n

    I think the use Ellis complains of would be permitted under our copyright law if either<\/i> of reasons I or II applied. I think in fact both apply. My impression is nothing would prevent me from arguing that I think I applies, but even if it does not, then II applies. I welcome comments on my analysis, suggestions of other court cases that might apply, and general discussion about this. Thanks! <\/p>\n

    ——
    \nNotes: For the time being, to comply with my hosts requirements, I am not posting any links to the Linda-Ellis-Troll caricature. I think they have instructed me not to do so unless I first write a counter letter. You can read the letter Dreamhost sent me in     DMCA_ELLIS.txt<\/a>)<\/p>\n

    Update<\/b>: I submitted the takedown request to chilling effects<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

    Serial DMCA writer and Author of The Dash is at it again: issuing dubious DMCA takedowns. She sent my host one. I’m posting to solicit tips on writing a counter DMAC. Some of you are familiar with Linda, who tends to send letters demanding very large sums of money to people who post her poem … Continue reading DMCA Takedown: Linda Ellis<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[428],"tags":[322,443],"class_list":["post-23752","post","type-post","status-publish","format-standard","hentry","category-copyright-2","tag-copyright","tag-linda-ellis"],"_links":{"self":[{"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/posts\/23752","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/comments?post=23752"}],"version-history":[{"count":0,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/posts\/23752\/revisions"}],"wp:attachment":[{"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/media?parent=23752"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/categories?post=23752"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/tags?post=23752"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}