Herald news Idoru pseudonym sacrificed in free speech fight
by Peter Ludlow (aka Urizenus Sklar), Herald Founder
Sometimes we all have to take a stand. In this case Herald Editrix Pixeleen Mistral, facing an outrageous abuse of the DMCA by Kalel Venkman, has, pursuant to Section 512(c)(1)(C) of the DMCA, filed documents disputing Venkman's claims of copyright infringement on screen shots and snippets of chat from the Justice League Unlimited wiki. As reported earlier in the Herald, the JLU wiki amassed vast amounts of (often false) information on Second Life denizens, including massive chat logs that were in cases recorded without the consent of the parties involved. In effect, the JLU was running an enormous surveillance program against Second Life users, and were using the DMCA to try and cover up those abuses to keep the public from understanding the full scope and frightening nature of the abuses. More troubling still is that much of the material Venkman requested be taken down appeared to implicate the involvement of Linden Lab staff member Plexus Linden in the activities of the JLU.
This can only mean trouble for Venkman. It is illegal under Title 17, United States Code Section 512(f) to knowingly send faulty DMCA notices, and doing so can result in serious legal liability. For example, there is already established precedent in the Northern District of California (where YouTube is located) holding that when a company knew or should have known that use of copyrighted material is fair use (and therefore, non-infringing), it is a violation of Section 512(f) and the DMCA. As a result of that violation, the company responsible paid over $100,000 to the parties affected.
Title 17, Section 107 explicitly says that "the fair use of a copyrighted work, including such use by reproduction in copies... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." As I said, Venkman is in trouble.
Some commentators have suggested that Venkman's real interest in filing bogus DMCA notices was to force targeted individuals to reveal their real life identities to Venkman, and this in turn has raised questions about the security and safety of those who do reveal their identities. I doubt that this is true, or at least I hope it isn't true, but in any case it takes some courage to put oneself at risk, and Pixeleen should be commended. In general, though, this shows another flaw of the DMCA: It can be used as a tool for the malicious to undermine the privacy of virtual world residents.
As for the identity of Pixeleen's real life typist, Prok was right: Pixeleen is Mark McCahill.
The text of Pixeleen's response follows.
------------------------------------------------
TypePad Copyright Agent
Six Apart Ltd.
548 4th Street
San Francisco, CA 94107
Fax: 415.344.0829
Email: [email protected]
February 4, 2010
Mistaken Removal RE: Ticket #9805: TypePad Terms of Service Violation
Dear TypePad Copyright Agent;
Please find attached to this letter a list of material removed by you pursuant to 17
U.S.C. Section 512. I have a good faith belief that this material was removed or disabled
in error as a result of mistake or misidentification of the material. I declare that this is
true and accurate under penalty of perjury under the laws of the United States of
America.
For the purposes of this matter, I consent to the jurisdiction of the Federal District
Court for the judicial district in which I reside. I also consent to service of process
by the person providing notification under Section 512(c)(1)(C) or that person’s agent.
However, by this letter, I do not waive any other rights, including the ability to pursue an
action for the removal or disabling of access to this material, if wrongful.
Having complied with the requirements of Section 512(g)(3), I remind you that
you must now replace the blocked or removed material and cease disabling access to it
within fourteen business days of your receipt of this notice. Please notify me when this
has been done.
I appreciate your prompt attention to this matter. If you have any questions about
this notice, please do not hesitate to contact me.
Sincerely,
Mark McCahill
[address and phone number elided]
Email: [email protected]
Enclosure:
the reproduction of Typepad's letter in the post here:
http://foo.secondlifeherald.
From the post:
http://foo.secondlifeherald.
* the image: http://foo.secondlifeherald.
From the post:
http://foo.secondlifeherald.
* the image: http://foo.secondlifeherald.
* the text:
[disputed chatlog text elided to prevent another Typepad takedown while DMCA dispute continues]
From the post:
http://foo.secondlifeherald.
* the text starting with:
[disputed chatlog text elided to prevent another Typepad takedown while DMCA dispute continues]through the last line of the post:
[disputed chatlog text elided to prevent another Typepad takedown while DMCA dispute continues]
From the post:
http://foo.secondlifeherald.
* the image: http://foo.secondlifeherald.
* the entire table which starts with the item:
[disputed text elided to prevent another Typepad takedown while DMCA dispute continues]
and continues through the end of the post.
From the post:
http://foo.secondlifeherald.
* the image: http://foo.secondlifeherald.
* the text which starts with:
[disputed text elided to prevent another Typepad takedown while DMCA dispute continues]
through the last line of the post:
[disputed text elided to prevent another Typepad takedown while DMCA dispute continues]
LL Just confirmed that my suspension for linking to the wiki is legitimate, which sets a precedent that you can be suspended for disclosure that takes place outside of Second Life. I've already Abuse reported Kalel for it.
Posted by: We | February 18, 2010 at 01:22 PM
@We: See: http://wiki.secondlife.com/wiki/Linden_Lab_Official:Someone_in_Second_Life_is_distributing_chat_logs_within_Second_Life_or_on_the_Second_Life_forums.
You'll have to go read it because reposting that material is banned. But effectively the LL/SL TOS, by their own published policy, cannot extend beyond their corporate boundaries. This is really constitutional law since a school cannot extend it's authority beyond it's borders, neither can a corporation, etc. It violates the premise of Freedom of Speech. So perhaps Lessig needs to be pulled in. LL is dangerously close to getting their asses handed to them in a bad way and it is way overdue. Personally I hold the opinion law enforcement needs to be investigating LL for RICO violations as it is.
Posted by: All Seeing Eye | February 18, 2010 at 07:59 PM
Yeah, I in no way reposted any disclosing material within Second Life. By their own rule on the page you linked:
"Other actions -- posting such logs on web pages, emailing them, or printing them out and posting them on utility poles in the "real world" -- are all actions beyond the scope of the Second Life Terms of Service."
I'm in the clear. However, they suspended me for disclosure for linking to Tux's wiki (and for linking to the Herald), and I disputed it, then they confirmed that suspension. This means that they set a precedent that says people can be banned for disclosure outside of SL, which means that Kalel Venkman and JLU are susceptible to Abuse Report for their outside of SL disclosure, so AR away.
Posted by: We | February 18, 2010 at 11:44 PM
Turnaround is fair play....
Everyone whose chat has been copied to the JLU wiki should now file DMCA complaints with Kalel Venkman's ISP so as to get HIS interwebz services suspended...
Posted by: IntLibber Brautigan | February 19, 2010 at 03:02 AM
So tomorrow is the 25th. no lawsuit yet?
Posted by: All Seeing Eye | February 24, 2010 at 04:37 PM
Well if the letter was sent on the 4th, and they gave 14 business days, then that gave TypePad until today to put them back up. It seems they have not complied to this request, so now what?
Posted by: We | February 24, 2010 at 08:54 PM
http://www.youtube.com/watch?v=K8E_zMLCRNg
Posted by: All Seeing Eye | February 26, 2010 at 01:50 AM
XD @ All Seeing Eye
Posted by: Tux Winkler | February 26, 2010 at 06:08 AM