{"id":24148,"date":"2014-03-27T10:17:54","date_gmt":"2014-03-27T16:17:54","guid":{"rendered":"http:\/\/rankexploits.com\/musings\/?p=24148"},"modified":"2023-05-19T07:05:36","modified_gmt":"2023-05-19T13:05:36","slug":"linda-ellis-dmca-follow-up","status":"publish","type":"post","link":"https:\/\/rankexploits.com\/musings\/2014\/linda-ellis-dmca-follow-up\/","title":{"rendered":"Linda Ellis DMCA follow up."},"content":{"rendered":"<p>Some of you are aware Serial DMCA writer and <a href=\"http:\/\/rankexploits.com\/musings\/2013\/dont-post-linda-elliss-the-dash\/\">Author of The Dash<\/a> sent  a <a href=\"http:\/\/rankexploits.com\/musings\/2014\/dmca-takedown-linda-ellis\/\">DMCA takedown notice<\/a> to my hosting company requesting a take down of this image which is hosted elsewhere, but which I display  using an inline link.<\/p>\n<p><a href=\"http:\/\/copyright-trolls.com\/site\/linda-ellis-copyright-troll-author-of-the-dash-poem\/\"><img decoding=\"async\" src=\"\" width=\"500\"><\/a><\/p>\n<p>After receiving the notice, I pondered what to do. Finally, for multiple reasons, I decided I would write a counter DMCA. I sent along the boilerplate counterstrike information along accompanied with a detailed discussion of the reasons <i>why<\/i> the notion that this image violates Ms. Ellis copyright is incorrect in a number of regards. <a href=\"http:\/\/rankexploits.com\/musings\/wp-content\/uploads\/2014\/03\/Counterstrike.pdf\">The Explanation.<\/a> (Note: owning to the formatting, the first draft at the boiler plate was poor because some required information was in the attachment. So, we rewrote that and resubmitted co-locating all the pledge about not committing perjury and so on and so forth. Consequently, we lost a bit of time. But time was not of the essence here.)<\/p>\n<p>Now: many will note that only the boilerplate was legally required (and Dreamhost agrees. That&#8217;s what they need.) However, the purpose of the additional information is to:<\/p>\n<ul>\n<li>Explain to people in general why I stand firm that this <i>is<\/i> fair use explaining why I believe it is so.<\/li>\n<li>Explain to people that <i>even if<\/i> the &#8216;anonmgur.com&#8217; who hosting violated Ms. Ellis&#8217;s copyright, I believe my hyperlinking is not infringing anyway&#8211; or at least so the 9th circuit has found. (The 7th circuit has a similar finding in Flava Works). Note: hyperlinking might be infringing if <i>I<\/i> had uploaded to the other site, or if I encouraged others to upload so that I could later hyperlink. But that happens not to be the case. I simply noticed the link to the image elsewhere on the web and created a link myself.<\/li>\n<\/ul>\n<p>In light of the first point, I will quote extensively from what I wrote in my letter to Dreamhost<\/p>\n<blockquote><p>2) To transform is not to infringe:<\/p>\n<p>The next right Ms. Ellis relies upon is a rights-holder\u00e2\u20ac\u2122s exclusive right to make derivative forms of the work. Based on the wording of the claimant\u00e2\u20ac\u2122s take down request, it appears she may be unaware that the \u00e2\u20ac\u0153fair use\u00e2\u20ac\u009d provision of the copyright act permits creation and display of some derivatives without obtaining permission from the owner of the original\u00e2\u20ac\u2122s copyright. Permissible use under the doctrine of \u00e2\u20ac\u0153fair use\u00e2\u20ac\u009d applies to \u00e2\u20ac\u0153Linda Ellis Troll Caricature,\u00e2\u20ac\u009d which is highly transformative. The transformation of expression and meaning is evident through side-by-side inspection of the two images.<\/p>\n<p>[ A side  by side image is inserted in the text here.-L]<\/p>\n<p>The original \u00e2\u20ac\u0153Author Linda Ellis\u00e2\u20ac\u009d portrays Ms. Ellis as friendly, open approachable person with the sort of personality one might expect of the author of an inspirational poem advising listeners to consider the value of their actions during the short period of time between birth and death (i.e. One\u00e2\u20ac\u2122s \u00e2\u20ac\u0153Dash\u00e2\u20ac\u009d).  \u00e2\u20ac\u0153Linda Ellis Troll Caricature&#8221; portrays her as an eerily gleeful, glowing-eyed, fang-tooth, gingivitis-stricken troll whose nature   might inspire it to dedicate \u00e2\u20ac\u0153Her Dash\u00e2\u20ac\u009d to demand large monetary sums from those who may have quoted an inspirational poem advising listeners to consider the value of their actions during the short period of time between birth and death (i.e. \u00e2\u20ac\u0153The Dash\u00e2\u20ac\u009d).<\/p>\n<p>A work is \u00e2\u20ac\u0153transformative\u00e2\u20ac\u009d \u00e2\u20ac\u201cand therefore not infringing &#8211; when the new work does not \u00e2\u20ac\u0153merely supersede the objects of the original creation\u00e2\u20ac\u009d but rather \u00e2\u20ac\u0153adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.\u00e2\u20ac\u009d Campbell v. Acuff-Rose Music Inc 510 U.S. 569 (1994).  Even making an exact copy of a work may be transformative so long as the copy serves a different function than the original work, Kelly v. Arriba Soft Corp., 336 F.3d 811 at 818\u00e2\u20ac\u201c19.( 9th Cir. 2003) For example, the First Circuit has held that the republication of photos taken for a modeling portfolio in a newspaper was transformative because the photos served to inform, as well as entertain. See Nunez v. Caribbean Int&#8217;l News Corp., 235 F.3d 18, 22\u00e2\u20ac\u201c23 (1st Cir.2000).<\/p>\n<p>The 9th Circuit, once again in Perfect 10, held that reducing the image from an actual image to a hyperlinked thumbnail was in and of itself transformative.\u00e2\u20ac\u009d So once again this could end the analysis at this point. However, the linked image is itself a transformative use of the original image; only the hair of the two people displayed in the image is not transformed.  \u00e2\u20ac\u0153A use is considered transformative where an alleged infringer changes a  . . . copyrighted work or uses a \u00e2\u20ac\u00a6 copyrighted work in a different context such that the . . .  work is transformed into a new creation.\u00e2\u20ac\u009d  Wall Data Inc. v. Los Angeles County Sheriff\u00e2\u20ac\u2122s Department,   447 F.3d 769 (9th Cir. 2006). Can it be seriously argued that the Troll image does not transform the original image? Can an image be more transformative?<\/p>\n<p>Furthermore, part of the fair use analysis requires examining whether the use supersedes or replaces the original use (it does not); whether the allegedly infringing use took more than was necessary of the original to make the transformation (it did not and in fact in Perfect 10 the defendant took 100% of the image but the court held that was needed to make the transformative use it wanted); and whether the use overly damaged the market for the original use (it did not \u00e2\u20ac\u201c there is no market for the original use).<\/p>\n<p>Therefore, the inline linked image was a proper, legal, transformative use of the original image.<\/p>\n<p>(3) To parody is not to infringe:<\/p>\n<p>The transformation in \u00e2\u20ac\u0153Linda Ellis Troll\u00e2\u20ac\u009d also parodies both the original image and the subject of the image. The former is parodied with regard to how the photographer chose to portray the subject and latter is parodied with the subjects own choice of self-representation on \u00e2\u20ac\u0153about Linda\u00e2\u20ac\u009d pages at her own site. Ms. Ellis\u00e2\u20ac\u2122s representation is provided below,<\/p>\n<p>[ An image proving that this is the image Ellis uses to represent herself is inserted in the text here. -L]<\/p>\n<p>So this image also parodies Ms. Ellis\u00e2\u20ac\u2122s online persona as a life-affirming poetess by declaring her as a \u00e2\u20ac\u0153copyright troll.\u00e2\u20ac\u009d Wikipedia defines copyright troll \u00e2\u20ac\u0153as a pejorative term for a party that enforces copyrights it owns for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing the works it owns for paid distribution. Critics object to the activity because they believe it does not encourage the production of creative works, but instead makes money through the inequities and unintended consequences of high statutory damages provisions in copyright laws intended to encourage creation of such works.\u00e2\u20ac\u009d  http:\/\/en.wikipedia.org\/wiki\/Copyright_troll. While Ms. Ellis does own the work which is the subject matter of her trolling, her activities otherwise fit the definition.<\/p>\n<p>Parody is an element of fair use; the \u00e2\u20ac\u0153fair use defense\u00e2\u20ac\u009d \u00e2\u20ac\u0153permits the use of copyrighted works without the copyright owner&#8217;s consent under certain situations; the defense encourages and allows the development of new ideas that build on earlier ones, thus providing a necessary counterbalance to the copyright law&#8217;s goal of protecting creators&#8217; work product.\u00e2\u20ac\u009d Campbell v. Acuff-Rose Music Inc 510 U.S. 569, 575 (1994).<\/p>\n<p>In the parody context, \u00e2\u20ac\u0153the \u00e2\u20ac\u02dcamount and substantiality of portion used\u00e2\u20ac\u2122 factor of the fair use defense to copyright infringement turns on the persuasiveness of a parodist&#8217;s justification for the particular copying done, and the extent of permissible copying varies with the purpose and character of the use; the analysis of this factor will also tend to address the market effect factor, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives.\u00e2\u20ac\u009d Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, 868 F.Supp2 d.962        (C. Dist Calif. 2012).<\/p>\n<p>Here, there is no chance this parody may serve as a market substitute. Copying Ms. Ellis\u00e2\u20ac\u2122 face was necessary to parody her appearance and convert her to a \u00e2\u20ac\u0153troll.\u00e2\u20ac\u009d  Under the above analysis therefore, this parody is a fair use of Ms. Ellis\u00e2\u20ac\u2122 image.<\/p><\/blockquote>\n<p>The quoting covers much of what is in the <a href=\"http:\/\/rankexploits.com\/musings\/wp-content\/uploads\/2014\/03\/Counterstrike.pdf\">pdf<\/a> which contains additional discussion of the hyperlinking issues.<\/p>\n<p>The current status is: Ms. Ellis sent no notice to Dreamhost and the image is restored. This action removes any liability from Dreamhost (who has acted in an exemplary fashion in this.) Ms. Ellis may still elect to sue me. That said: To avoid summary dismissal in any suit in the US, I&#8217;m pretty sure Linda Ellis must first <i>register<\/i> the copyright.  I periodically search the Copyright records and as far as I can determine she has not registered this image which one would imagine was shot by someone else, though it might be a &#8220;selfie&#8221;. Who knows?<\/p>\n<p><b>Update<\/b> March 28: I am taking the liberty of adding links to posts that mention Linda Ellis&#8217;s take down notices. I&#8217;ll add links as I find them. I am also going to keep comments open on this thread, and open comments on all Linda Ellis threads.<\/p>\n<ol>\n<li><a href=\"http:\/\/gettyimagesmustchange.com\/site\/punishment-needed-for-dmca-abusers-says-wordpress-me-too\/\">Greg Troy<\/a> writes about the need for DMCA to be modified to make it easier to fine people who file false DMCA notices. Of course, unless one is granted access to discover after a case is pursued, the person on the receiving end of a takedown can almost never be certain an DMCA take down was actually false, but Linda&#8217;s history of sending takedowns at which are countered and not followed up with any suit is noted in that article. These  have occurred at my site and April Brown&#8217;s site. (March 28)<\/li>\n<li><a href=\"http:\/\/www.aprilbrown.com\/copyright-infringement-the-das\/2012\/6\/9\/linda-ellis-dmca-counter-notice-filed-to-restore-youtube-acc.html\">April Brown reports writing a counter DMCA<\/a> when Linda Ellis filed a DMCA takedown.  This takedown had great potential to damage Ms. Brown who uses videos to promote her auction busines. Brown&#8217;s youtube videos were restored.  (March 28)<\/li>\n<\/ol>\n","protected":false},"excerpt":{"rendered":"<p>Some of you are aware Serial DMCA writer and Author of The Dash sent a DMCA takedown notice to my hosting company requesting a take down of this image which is hosted elsewhere, but which I display using an inline link. After receiving the notice, I pondered what to do. Finally, for multiple reasons, I &hellip; <a href=\"https:\/\/rankexploits.com\/musings\/2014\/linda-ellis-dmca-follow-up\/\" class=\"more-link\">Continue reading <span class=\"screen-reader-text\">Linda Ellis DMCA follow up.<\/span> <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[428],"tags":[443],"class_list":["post-24148","post","type-post","status-publish","format-standard","hentry","category-copyright-2","tag-linda-ellis"],"_links":{"self":[{"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/posts\/24148","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=24148"}],"version-history":[{"count":1,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/posts\/24148\/revisions"}],"predecessor-version":[{"id":26875,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/posts\/24148\/revisions\/26875"}],"wp:attachment":[{"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/media?parent=24148"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/categories?post=24148"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rankexploits.com\/musings\/wp-json\/wp\/v2\/tags?post=24148"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}