Thursday, May 5, 2016

How to be an online marketing idiot: arbitrary DMCA takedown notices and SLAPP

English: Very poor sketch of a desired icon fo...
English: Very poor sketch of a desired icon for DMCA takedown notices on articles, emphasizing Wikimedia's submission... created for conversation at Commons:Village pump#DMCA takedown templates and material. (Photo credit: Wikipedia)
It seems some people have NO concept of copyright, and think that issue random threats to sue is somehow a valid tactic in "reputation management". Such idiots should never be allowed to do marketing online, but this is a democracy, with freedom to do all sorts of things, including making a total fool of oneself.

Recently, Techdirt, a tech news website, highlighted a particular idiotic DMCA takedown notice. The story basically goes like this. in 2015, Techdirt writer Tim Cushing put together a list of "stupid DMCA takedown requests" because, well, they are stupid, like DMCA takedown notice to Google... about images cached on Bing (which belongs to Microsoft, not Google), or DMCA takedown on news coverage about one's crimes by self-publishing a book about it, and so on and so forth.

One of these... online marketing idiots, instead of acknowledging mea culpa, doubled down and issued a DMCA request to Techdirt claiming their copyright were violated because Techdirt used a couple of the images offered by the company, called Andromedical, as example, complete with Andromedical's prominent watermark. Oh, and the same copy apparently posted random comments online claiming Techdirt is owned by some company nobody ever heard of, is a patent troll, claiming various bogus misdeeds by the writer, and more. It's a basic slander campaign... all because they can't admit they were idiots.

The idea that TechDirt, a news website, can be liable for copyright violation for "covering" Andromedical (whose product is a penis pump, named... AndroPenis (tm), really imaginative, guy) as a news item is simply hilarious. It's even MORE hilarious that Andromedical's complaint also claimed that Techdirt is a "counterfeiting operation" and the violation is being reported "to INTERPOL".

The bottom line is actually quite clear: "we don't like what you say about us, STFU!"

But the world doesn't work like that. There are exceptions to copyright called "fair use", and using the company logo and publicly available photos provided as promotional material by the company to illustrate the company, and in no way asserts being the company, is obviously fair use.  If you put info out in the public, you can't control what people do with it, be it positive or negative.

Yet some scams and suspect schemes are quite fond of using these bogus copyright and/or trademark claims as well as threat to sue or outright lawsuits in hopes of silencing critics as a part of their "reputation management" strategy.

MLMSkeptic has personal experience with such a bogus copyright claim during the coverage of ZeekRewards ponzi scheme. In July 2012, only months before SEC and Secret Service moved in, MLMSkeptic had a long list of inconsistencies, questions, and bogus information and suspicious behavior by ZeekRewards that indicated it was a ponzi scheme. The evidence is so long, it can no longer be ignored. Instead of dealing with their corrupt scheme, they instead attempted to silence yours truly by filing a DMCA takedown notice to the article host: Hubpages.
"We are writing you today and requesting your assistance. It has come to our attention that your website is broadcasting and delivering content that is both copyrighted and, [sic] Trademark Protected. In addition, the content constitutes a tortuous [sic] interference with us and our 1.2 million independent advertising reps around the world." -- introduction from the takedown letter
The hilarious part is Zeek Rewards Trademark is NOT owned by Rex Venture Group, owner of Zeek Rewards. And I've never claimed I am Zeek, or even related to Zeek in any way. I'm merely critiquing it, and there's ONE instance where their logo was used... a tiny one-inch logo shrunk down to show what I am talking about.

The takedown notice is an obvious attempt to silence criticism levelled against a suspect ponzi scheme and asking many inconvenient questions they don't want answered. In legal terms, this is known as SLAPP: strategic lawsuit against public participation. Even though they don't expect to win, merely by threatening to sue, they can often silence the critic, who don't have a warchest bankrolled by thousands, perhaps millions of victims.

This particular instance went badly for the scheme. My article went back online after only a week of outage, after I removed the logo (which I should not have to) and my host understood the situation and the other party (who never really provided his bonafides) did not respond. Two weeks after that, SEC and Secret Service stepped in and shut down Zeek, and the rest is history.

There are many instances of rather ridiculous threats of companies attempting to use DMCA or outright threats to sue in attempt to "manage" online reputations. WorldVentures attempted to manage a blogger's review and got a severe backlash. Tracy Coenen eventually prevailed against Medifast at the cost of 200K spent on lawsuits after several years. Leonard Caldwell sued Jason "Salty Droid" Jones many times.

On the other hand, such threats don't always go down so easily for the critics, as LazyManAndMoney was forced into a settlement with LifeVantage as LZAM doesn't have the kind of warchest as deep as a company with sales in the millions. Free speech is not free.

So what's the point of all this? Justice wins... most of the time. Nothing stops you from being an idiot online, pretending to wield a club, hoping to beat down criticism. But like Emperor's new clothes, the truth is out there for people to see.

And if your company is resorting to such tactics, it may be time to bail out, as you don't know what ELSE the company is really trying to hide. (See: Cockroach theory)

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