Stupid Legal Tricks, Chapter 3

(Note: I am an attorney, but I may or may not be licensed in the jurisdiction of any particular reader. Nothing in this post constitutes legal advice. Consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.)

Hello again!

It’s time for another episode of Stupid Legal Tricks. Once more we take a hard look at a story ripped from today’s headlines! And furthermore, it literally is a discussion about a Stupid Legal Trick. Namely, filing ridiculous DMCA takedown claims. If you’re more of a big-picture person, here’s the scoop on filing ridiculous DMCA takedown claims:

Don’t do that. It is a horrible, terrible, no good, very bad idea.

Okay. Now for people who need a little more context, here’s what that’s all about. The DMCA, or Digital Millennium Copyright Act, is a US Federal law that, among many other things, provides a mechanism for people whose copyrighted works are being used online without their permission to do something about it without having to file a lawsuit. Specifically, they can send whoever’s doing it – or their content host or Internet Service Provider – a “takedown notice.” Here’s a nice little article about takedown notices that describes what they’re required to contain: The DMCA Takedown Notice Demystified.

Here’s a takedown notice I happened to find whilst randomly surfing the web:

Takedown Notice, A. Mauer to Turner Broadcasting

A totally random takedown notice.

Okay, I lied. I do that. (I’m just trying to keep you on your toes. *wink*) That is not, in fact a randomly retrieved takedown notice. It’s a notice that was sent to Turner Broadcasting by Ms. Alex Mauer, a composer of music for video games (and other things.) Ms. Mauer is claiming that Turner has posted her copyrighted works without her permission, and demanding that they take them down.

This is a bad takedown notice. (Arguably it’s not a takedown notice at all, but a plain old Cease and Desist letter. I’m going to treat it as if the intent were to present a takedown demand. Most of the same arguments apply.) For one thing, it doesn’t specifically identify the allegedly infringing work. For another, it doesn’t identify the work allegedly being infringed. How the Hell is Turner even supposed to know what they did wrong or how to fix it?

The case number is not something you can easily look up, incidentally: it’s totally inadequate to identify an allegedly registered work. For fun, I searched the Copyright Office’s records and to the best of my knowledge, Alex Mauer has no registered copyrights. (They could be registered under a pseudonym, of course.)

But here’s the thing: It seems quite likely that Ms. Mauer isn’t actually mad at Turner, because if you search the Internet you find that she’s sent quite a few takedown notices in the past several days, and what they have in common is that they are all being sent to people who are posting, well, pretty much anything about a game called Starr Mazer DSP.

StarrMazer DSP Web Page

The Imagos Softworks promo page for Starr Mazer DSP.

It turns out that Ms. Mauer is having a contract dispute with Imagos, who hired her to compose music for Starr Mazer. She believes they owe her a substantial sum of money and that she has been otherwise dealt with in bad faith. Well and good. All she needs is a good contract lawyer and she can sort this out in a jiff, right?

Not so much.

For whatever reason, instead of retaining a contract lawyer, Ms. Turner struck upon the not entirely original idea of involving other people in an attempt to raise awareness of her dispute in the hope, one assumes, of creating public pressure against Imagos. So she has been sending DMCA takedown notices to people who have posted video reviews of the game which include music and sound effects allegedly created by her for which she claims Imagos has no license. And not just to them, but to YouTube, to Steam, and to whoever else she could think of.

This was a spectacularly bad idea.

However, instead of directly commenting on Ms. Mauer – who seems to have had a difficult time and who I hope finds help and understanding – I will tell you why you, the indie game developer, should not do this, and why you-prime, the fan of an indie-game developer, should also not do this thinking you are “supporting” someone. I will also briefly discuss what, in my opinion, was a series of missteps by Imagos in responding to the situation.

Easy one first: If you are not the owner or licensee of a copyrighted work, you should never, ever file a DMCA notice regarding that copyrighted work. Because among other things a DMCA notice includes a statement made under penalty of perjury that the person filing it is or is operating with the explicit authorization of the owner of the work. “I buy all her games and one time she DM’d me to thank me for a Tweet” does not constitute explicit authorization to represent the owner of a work.

By the way, if you use an automated takedown notice generator or ISP/Platform takedown notice, it will automatically add that language to the takedown notice, even if you don’t type it yourself. And if enough spurious takedown notices come in, the ISP might be justified in decreasing the priority on notices regarding that artist’s work. Internet mobs are bad enough: don’t make them worse by actively committing fraud/perjury on behalf of someone you are allegedly trying to help and making their job harder, mmmkay?

Next one: even if you are the developer, or a contractor like Ms. Mauer, don’t ever do this. Just, don’t. For one thing, Streisand Effect. For another, Digital Homicide Death Penalty. For a third, this sort of thing is often interpreted by the game community – as it would be in other communities, I assure you – as saying, “I hate this industry, and I hate everyone who participates in it, and I never, ever want to work in it again.”

That may not be what you meant, but it will be what they hear.

And understandably so. Having an employee or contractor who will harass reviewers – the lifeblood of indie game publishers – if they get mad at you is something devoutly to be avoided. And they will. And Google is forever. So unless you really do want to leave the industry, and all related industries, and maybe the workforce entirely, never ever do that. Remember, any potential employer can Google you: if they see you have a history of legally harassing your employer’s customers, they may be somewhat put off even if their idea of cutting edge video games is that radical new Ms. Pac-Man.

Finally, a word about Imagos’ responses. They appear to be a small developer, almost certainly without a lawyer on staff and maybe *sigh* without a lawyer on regular retainer at all. They are trying to defend their good name after having been accused of copyright infringement and Lord knows what else. I get it. And this isn’t the worst I’ve seen, not by a long shot. Their responses have at least been tasteful and non-confrontational.

But for God’s sake shut up. Shut. Up. Shutupshutupshutupshutup.

They talked about her health status. In a public posting. Are they insane? I don’t care if she posted it first. I don’t care if she wasn’t an employee. You never ever talk about the health status of someone you are having a dispute with, or might have a dispute with. You don’t post contract terms (again, I don’t care if she did it first.) You don’t publicly say that you’re releasing rights. Or at least you don’t do any of this unless and until your intellectual property lawyer tells you that it’s reasonably safe to do so.

If you are going to make public statements about someone you are having or may have a legal dispute with, you have to consult an attorney. If you can’t afford it – and there are lots of us who will help you out a little for free if you’re really down on your luck – then don’t say anything. I know you want to defend yourself. I know they’re telling horrible lies and hurting your business. But you will very possibly make things worse. You may make admissions without even realizing it. You may create some new cause of action where none existed before. At the very least, you may enlarge and extend the controversy when otherwise it would have died out quickly. Just please shut up.

*whew*

Anyway, you may have noticed – Never can slip anything by you, can I? – I didn’t talk much about the substantive content/legal propriety of Ms. Mauer’s DMCA notices. That’s because that’s largely a “question of fact,” so it’s not helpful for me to discuss her particular case because next time it happens there will different facts and anything I say here may or may not apply. Which will not stop people from applying it. So I have been discreet.

I will say, in general, that while you should never ignore a takedown notice, and if at all possible you should consult an experienced copyright attorney about it if you get one, this sort of thing doesn’t work. Despite the fact that in my law panels I tell you It’s Never Fair Use, if you’re writing a bona fide review and you include a little gameplay, and some third party who has a beef with the publisher DMCA’s you, you are probably making a fair use even if they do have some sort of claim against the underlying content. Respond with a counternotice (if you don’t know what that is, ask a lawyer) and be calm. Here are some principles which may help:

Help I Just Got a Legal Thing!

As always, questions or comments are welcome. Thanks for reading!

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2 Responses to Stupid Legal Tricks, Chapter 3

  1. katana314 says:

    Hi, Marc. Great article, and good to have a lawyer’s perspective on this!

    I do have a question, and just to say up front, I agree that Ms. Mauer’s actions were social suicide and definitely a bad idea, nor was this her best legal option, nor was that even a very good notice letter, so I’m not really going to contest that advice.

    What I do find confusing is when you state this: “If you are not the owner or licensee of a copyrighted work, you should never, ever file a DMCA notice regarding that copyrighted work.” Now, this sentence alone is obvious and agreeable, but it seems to imply Ms. Mauer is not the legal copyrighted owner of the works in question. Now, as you said, there are no registered copyrights on this music with the office – but, as I understand it, a registration is not necessary if it’s possible to prove you are the owner of a work. It can fast-track discussions, but anything copyrightable is “naturally copyrighted” the moment it’s created.

    The obvious next step would be whether the copyright for the music belongs to Imagos. It should, I mean they contracted Ms. Mauer to make it and intended to sell the game. But, her claim is that she was never paid. Wouldn’t any decent work for hire contract specify that the gains made for the company (eg, owning the works requested) are contingent on being paid in a timely manner? Otherwise it becomes difficult for the contractor to recompense. This is of course an assumption on my part, not only about the content of the contract, but her correctness in not being paid, but I guess I would be surprised for those to be absent.

    Let’s say I meet a guy who’s selling his bicycle, and we agree that $120 is a fair price, and we shake on it, and I then say “I’m about ready to buy it, but would you mind if I took it for a test ride around this block first to see how it handles?”, the guy says “Sure”, and then I simply leave with the bicycle. I don’t come back. Then, a day later, the guy manages to find me, and points the cops – not a lawyer, but the cops – at me, and says “That man stole my bicycle!” I can’t exactly turn around and say “That’s not true! We had a purchase agreement fair and square. I simply never got around to paying him for it. If you feel I haven’t lived up to my end of the agreement, you can hire a lawyer and we can discuss it!” In my eyes, that does not require discussion or legal dispute. The bicycle still belongs to the original owner, because no contract has been completed by both parties.

    Maybe your statement simply referred to the idea that she’s about as uncertain of her position as I am (I’m over 50% sure, but I’m not 100% sure). I’d be interested to hear your perspective on this.

    Like

    • marcwhipple says:

      Hi there! Thanks for reading.

      That comment was addressed more to potential “helpers,” who might, out of a misguided sense of loyalty or justice, try filing DMCA notices against people who they feel have wronged *someone else.* Think of them like the people who go and file one-star reviews on Amazon against books whose authors they feel have done something inappropriate.

      Since they neither own the copyright nor have a license, they have no standing at all to file a DMCA notice, and by doing so, they are acting unlawfully. I don’t *know* anyone who’s done that, but I’d be amazed if someone hasn’t or at least hasn’t thought about it. They shouldn’t do it, and this is why.

      As far as Ms. Mauer, if she has a good faith belief that she *does* own the copyright, this particular suggestion does not apply to her and shouldn’t be read as addressing her. I hope that clears it up.

      M

      Like

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