26 Nov 2013
It so happened that I have the privilege, responsibility and controversy of telling you why the TeamMichaelJackson website was shut down (temporarily so as I hope very much indeed).
It is a privilege and responsibility because I was entrusted with information and should be wary not to harm the admin of the site by disclosing some of its details. It is also a controversy because Taaj and I adhere to different and possibly even contrary views as to who might be standing behind the attack against her TeamMJ blog.
It is in these impossible conditions that I will still try to tell the story out of solidarity with a fellow blogger, love of freedom of speech and a great appreciation for the truth irrespective of which direction it is coming from and what shape and form it is taking.
SUSPENSION OF THE BLOG
Right on the day of her major surgery Taaj Malik received news that her blog TeamMichaelJackson.com was suspended.
The information came from the hosting service saying that following their prior notice “the account was suspended for failure to remove the alleged infringing material within the 48 notice hours”.
The subject of the email referred to a mysterious “DMCA for copyright” and implied that the suspension was due to copyright infringement and that someone claimed that he had a copyright to the materials posted in the blog.
Here is a note on what copyright is:
- Copyright Law in the U.S. is governed by 17 U.S.C. §§ 101-1101, commonly known as the Copyright Act, as well as DMCA standing for Digital Millennium Copyright Act which in 1998 extended the reach of copyright into the sphere of Internet.
- Neither the Copyright law nor DMCA protect the works created by officials or employees of the U.S. Government in the course of their duties. These documents (for example, court transcripts) are not subject to copyright.
It was a shock to learn that TeamMichaelJackson was closed due to the alleged copyright infringements as the blog contained a minimum of photos, had practically no music and presented the authors’ own views on the events and people around Michael Jackson during his lifetime and after his death.
The blog also had a lot of precious court documents and materials which are in the public domain anyway as they were generated by the US government employees and officials and cannot infringe anyone’s copyright even in principle.
So whose copyright did TeamMichaelJackson allegedly infringe then?
In the process of analyzing the matters of copyright I learned a lot of things about it which I did not know before. For example, I found that the photos of someone can infringe only the rights of photographers who own them and not of those whose images are shown – and this means that before posting another photo of Michael Jackson now each of us should first carry out an investigation on who made the photo and only then post it naming the photographer.
In case of Michael Jackson it is an almost impossible task, so over here we face the option of either giving up all MJ’s photos and shutting down the blogs full of MJ pictures or leave everything as it is as getting rid of fan blogs would be a huge blow to Michael’s legacy in the first place.
However TeamMichaelJackson cannot be accused of even that as they used no more than one photo per page which is considered fair use and is an exception from the copyright rule, especially if it is done for the purposes of research, analysis, comment or criticism.
Actually a huge part of the TeamMichaelJackson blog was absolutely not photos, music or whatever, but the documents from the Murray trial in 2011 and court transcripts from Katherine Jackson’s case against AEG in 2013.
These documents were cherished and doted upon by many of us as it was the only source of first-hand information about the last months of Michael Jackson’s life and the only chance to analyze the testimonies of AEG’s bosses in order to learn the deep secrets of AEG’s mistreatment of Michael Jackson which those transcripts are still holding.
Remembering that TeamMichaelJackson was accused of copyright infringement a terrible thought raised my hair at this point – and what if those court transcripts were infringing someone else’s copyright?
However a little study showed that there was no reason to worry. Court transcripts are considered to be in public domain and can be absolutely no property of courts or court reporters.
The courts do charge big fees for the transcripts (no less than $3,5 per page) which is why during the trial we even pressed some money on the TeamMJ website to help them buy the transcripts, however court reporters do not own a copyright to them because they are no authors of the transcripts, do not create them and the raw facts and data they report are no subject for copyright anyway as facts and ideas are considered public property (ideas can also be stolen but this is called plagiarism and is different).
The Administrative offices of the US courts explained the whole thing in 2002 and even went as far as saying that charging money for the transcripts was not quite correct:
In an October 22, 2002 Memorandum, the Administrative Offices of the United States Courts clarified ownership issues for court transcripts:
Transcripts of court proceedings are not original works of authorship subject to the protection of the Copyright Act (17 U.S.C. 101). Even if the transcript were a proper subject of the Act, official court reporters would not be able to seek a copyright because their transcripts are prepared as part of their official duties and thus come within the “work of the United States Government” exception. .
. . Therefore, certified transcripts filed with the clerk of court may not contain statements or seals which purport to restrict the distribution or copying of the transcript by the clerk’s office or by the public. Because transcripts filed with the clerk are public records, they may be used, reproduced and provided to attorneys, parties, and the general public without additional compensation to the court reporter, contractor, or transcriber. http://www.pwc-sii.com/Research/research/courtreporters.htm
Well, in civil cases courts approach private companies for transcribing the testimonies, so the money still has to be paid but the rule that court reporters do not own a copyright to their work remains unchanged even in civil court. So whatever the case is – criminal or civil – the court transcripts can never be copyrighted material.
A special article published in September 2011 said the same even in its headline “Court Reporter Transcripts Are Not Copyrighted” and closed its long analysis with a statement leaving absolutely no room for doubt:
Thus, the Court Reporter cannot own a court transcript by as defined in the federal copyright laws and regulations.
Another article said:
…court reporters are not “authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings”.
So court transcripts are actually public property and therefore neither court reporters nor anyone else can claim having a copyright to them.
But what makes me think that the AEG court transcripts were regarded as “copyright infringing materials” for which the TeamMichaelJackson blog had to pay a heavy price of a shutdown?
Well, I hear that there was another paper that the owner of the TeamMJ site received and it referred to something of the kind.
A PAPER FROM AN AGENT
This paper was called a Notification (a takedown notice) and it arrived from a certain organization which claimed that it was acting on behalf of a client. This client was allegedly the one who was the “the rights owner”.
According to the notification the client claimed to be having the rights of ownership, but to what was not quite clear. This question I won’t be able to answer as the paper is organized in such a way that it is possible only to guess what the client has rights to.
In fact the paper from the organization acting on behalf of their client (let me call it an Agent in the future) did not disclose how, why and even whether the client was claiming any infringements.
The short text simply called its client the “rights owner” in point 1, introduced itself as “the rights agent” in an even shorter point 2 and listed the laws on copyright, consumer protection, invasion of privacy, defamation and libel issues, and terms of services of the Internet Provider as their reference materials in very many other points of the same paper.
A separate point included a list of the infringed rights and these infringements also covered a broad area from copyright to defamation and human rights issues.
And one more point said which “infringing files” were requested to be taken down in connection with all of the above.
The Agent did not specify which file was infringing which law, rule or regulation, and only said that the rules were “as applicable” thus leaving us the full freedom to guess which of the rules applied to which “infringing file”.
The name of the Agent acting on behalf of the client will not be provided here for fear to break his (Agent’s) confidentiality, trademark, privacy, rights and freedoms as well as its privilege to send warning letters and threaten others with litigation. All I can say about the organization is that it is a sort of a Web Online police which is usually hired for the job of stopping music or film piracy and handling matters like defamation of character and online bullying.
In the media they call their methods “gentle” and say that their task depends on who hires them. Some artists do not allow even a single photo or video of themselves to be used without their permission (Prince, for example), while other artists are thrilled that fans are exchanging their music and photos with each other and object only to the leakage of new albums. These leakages make the artists lose the money they hoped to get for their new album, so the primary business of this online police organization is to talk to fans, appeal to their conscience and fight the leaks of the new material, while music released long ago is very often not even a concern.
In addition to fighting the leaks this London-based online police is said to be handling defamation of character cases. No one will doubt that defamation is indeed awful, however bad as it is, defamation does not fall under copyright rules and to be able to shut down the offender one needs something more that a simple takedown notice – and it is a court order.
Only a court order allows the Internet Service Provider to shut down the wrongdoer and this is why we are having so many problems with the media lying about Michael Jackson – you can’t go to court about each of the million lies they tell. I wish this online police organization took care of those defamation cases in the first place, instead of going after MJ’s fans.
The paper received by TeamMJ had some referrals to defamation too, however it requested the Internet Service Provider to act on the basis of the DMCA and European Union Copyright directives. There was no court order mentioned in connection with defamation issues, so infringing the client’s copyright was the only reason for taking action against the blog.
In short no matter what fictional or real sins of TeamMJ the Agent enumerated in that takedown notice all of it is revolving around the alleged infringement of copyright only.
Digital Millennium Copyright Act does not deal with defamation and therefore mentioning it in a notice connected with a copyright was as a very minimum extremely inaccurate.
This made me think that the authors of the paper were either some amateurs or simply bullies whose whole idea was to intimidate and harass in the hope that we will never go to the Internet and make a couple of enquiries there.
In fact that paper had some other disturbing inaccuracies – there was no date on it and no signature. And a little further study of the subject showed that the absence of a proper signature actually made the whole paper ineffective.
A takedown notice should carry a physical or an electronic signature, otherwise it is ineffective [Sample of an electronic signature for delivery acceptance]
Lots of sources say that the takedown notice is valid only in case it has a physical or electronic signature and both the claimant and its online police agent should have known it if they are really professional lawyers.
Here is one of the sources saying that without the proper signature the takedown notice is ineffective:
A notice is only effective if it includes:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon some reflection over the absence of a proper signature on that paper I began to also suspect that its authors are not only bullies, but may easily turn out to be the impostors who say that they act on behalf of a certain client but are acting on their own behalf or in the interests of a third party.
My imagination may be too vivid but it painted a picture of agent A saying that he acts on behalf of client B while all this time he is following the instructions of client C, while client B may not even know what events are developing behind his back.
What I am trying to say is that I smell here a big provocation and urge you to think twice before jumping to conclusions.
THE FILES REQUESTED FOR REMOVAL
The files requested for removal theoretically could point to the likings and dislikings of the Agent’s client and by their very selection could show who the client actually is.
However I found that the files allegedly infringing the client’s rights covered almost the full content of TeamMichaelJackson blog leaving intact only some odds and ends.
The comparison of “infringing files” with the catched version of the blog content made me even wonder whether there was any logic in selecting the materials for the infringing list. Frankly, there was no logic and no specific principle of selection.
For example, some files on the AEG trial were demanded to be pulled down, while some were not.
Most of the material on the Estate was to be removed though the extensive thread on the Julein Auction where the Estate was heavily criticized was allowed to stay, same as the various anti-Sony and anti-Estate campaigns initiated or supported by TeamMJ.
On the other hand the “Boycott Sony” file was to be removed same as the so-called “the Estate lies videos” though these videos are not even included into the content of the blog as its catched version of October 10, 2013 proves it.
All materials on Murray were to be removed including MJ’s autopsy reports, though these reports are surely considered to be in public domain and can be freely accessed from other sources.
Trying to understand the logic of the complainants I took the catched version of TeamMichaelJackson blog still remaining in the Internet and (with no desire to infringe the Agent’s confidentiality and hurt his sensitive feelings) marked there the files which were requested to be removed:
The “infringing files” are marked orange in the Content of TeamMichaelJackson page in its catched version of October 10,2013
If you analyze the result you’ll see for yourself that there is no logic in the request to take down one thing but keep the other - unless the authors wanted to use this random list in order to mask the real reason why they wanted the blog to be shut down.
The selection indeed looks like a random one and suggests that the authors of the takedown project counted on the full shutdown of the blog in case the blog owner refused (rightfully so) to remove some of its files.
This is how it actually happened – the owner was taken aback by this incredible request, did not delete anything and the Internet Service took advantage of it and shut down the blog altogether.
In my opinion the only real reason for the takedown notice are the Jackson V AEG Trial court transcripts.
All other materials have been there for a much longer time and all this exposing the Estate done by TeamMJ is nothing new for the MJ fan community. There are several other blogs which are no less vehemently critical of the Estate and surprise-surprise nothing ever happens to them, while TeamMJ has suddenly turned into the main target for attack.
If you come to think of it TeamMichaelJackson was the only blog that possessed the court transcripts from the AEG trial and in this respect was a totally unique source. So if someone wanted to get rid of TeamMJ it is logical to assume that these court transcripts are actually the only materials they were really after.
In the same way robbers break into someone’s home to get some secret document but take away the money and jewelry too in order to present it as a usual theft.
And now comes the biggest surprise of it all and it is the name of the client who allegedly approached the Agent to make a takedown notice to remove these materials as theirs and who allegedly claimed to be the “right owners” of them.
And the name is ….. Sony/ Epic/the Estate of Michael Jackson.
Well, at least this is what the Agent’s takedown notice actually says. It calls Sony/Epic/MJ Estate “the right owners” and though the notice does not directly say it, if you put all points of the notice together it will look like the “right owners” claim copyright to the allegedly “infringing files” of TeamMJ - including its AEG court transcripts.
So Sony/Epic/the Estate are claiming that inter alia they have a copyright to the court transcripts from the AEG trial?
Are these people in their right minds to say a thing like that?
DIFFERENCE OF OPINION
At this point comes a big difference of opinion between Taaj and me in the way we interpret these findings.
She thinks that the Estate indeed hired the web police organization, demanded to remove the AEG materials from her site and this reveals that they are in cahoots with AEG and protect them this way.
And I think that the Estate lawyers should be complete idiots to have hired the web police organization, demand to remove the AEG materials on their behalf and this way openly declare that they are in cahoots with AEG.
I also think that it would be completely illogical for them to claim that they have a copyright to the court transcripts because absolutely no one can have a copyright to them, let alone the Estate lawyers who have not even been to the trial and have nothing to do with those transcripts.
Taaj thinks that this takedown notice is really on behalf of the Estate and gives some other reasons for assuming it. Two years ago, in April 2011 she had a similar experience with the Estate – at that time they wanted to close her blog on the pretext that her domain name sounded similar to their own online MJ team service and her blog was collecting donations for acquiring transcripts from the Murray trial. This was called the commercial use of the blog, however the National Arbitration Forum did not agree with it and the blog was allowed to carry on.
I see her point and agree that theoretically the Estate could apply the same method again and claim that TeamMJ was involved in unauthorized collection of money and their request (if it was theirs) to pull down the AEG transcripts could be just a stupid way of fighting “commercialization” – stupid because of being done at the expense of everyone thinking that they are protecting AEG.
However a counter argument to this idea is that the current Agent’s takedown notice does not specify collection of money as one of TeamMJ’s sins though it finds fault with them in everything else.
All this takedown notice is stating is a crazy claim of ‘copyright’ to the materials which are none of Sony/Estate’s ownership and some defamation issues which can be in no way connected with a copyright infringement claim.
And we do not even know whether this takedown notice was really made on their behalf as it does not carry a physical or electronic signature of the Agent though it absolutely should.
In short things don’t add up, and all of it looks like an intricate provocation arranged by some third party with the idea to bring extreme confusion into people’s minds, turn some against the other, possibly compromise the Estate and do all of it at the expense of TeamMichaelJackson who is indeed a very likely victim due to their long history of feud.
The easiest way to arrange a provocation is to muddy waters in the atmosphere of extreme secrecy sending everyone to make wild guesses about what’s going on, and this is why there was so much focus in the Agent’s paper on confidentiality issues. They warned Taaj not to say anything to anyone under the threat of breaking confidentiality – the confidentiality of the Agent this time.
I’ve been to the Agent’s site and it does not say a single thing about the confidentiality rules under which they are allegedly working. In fact the site is totally empty and provides no information whatsoever.
They also say that their takedown paper is their copyright and cannot be disclosed. However copyright rules do allow relating facts by means of paraphrasing, and this is the loophole I’m using to be able to tell you this incredible story.
In my opinion the most frightening thing for bullies is openness and publicity, and transparency is the only real defense against all these behind-the-scenes games and provocations.
THE DMCA OFFICIAL PROCEDURE
Though the Agent’s paper was unsigned it was evidently regarded by the Internet Service Providers as a valid takedown notice, so following the DMCA standard procedure they suspended the TeamMJ blog together with Taaj’s respective Youtube account.
At this point it will be interesting to learn how the standard DMCA procedure for taking down and putting back a blog or Youtube account works. In very simple terms it has been explained by Wikipedia:
1. Alice puts a video with copy of Bob’s song on her YouTube.
2. Bob, searching the Internet, finds Alice’s copy.
3. Charlie, Bob’s lawyer, sends a letter to YouTube’s designated agent (registered with the Copyright office) including:
1. contact information
2. the name of the song that was copied
3. the address of the copied song
4. a statement that he has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
5. a statement that the information in the notification is accurate
6. a statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
7. his signature
4. YouTube takes the video down.
5. YouTube tells Alice that they have taken the video down.
6. Alice now has the option of sending a counter-notice to YouTube, if she feels the video was taken down unfairly. The notice includes
1. contact information
2. identification of the removed video
3. a statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
4. a statement consenting to the jurisdiction of Alice’s local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which YouTube is found.
5. her signature
7. If Alice does file a valid counter-notice, YouTube notifies Bob, then waits 10-14 business days for a lawsuit to be filed by Bob.
8. If Bob does not file a lawsuit, then YouTube may put the material back up.
Let me point out a couple of things in the described procedure.
The first one we already know of. When applying to the Agent the claimant (allegedly Sony-Epic-the Estate) was to make a statement under penalty of perjury that they were the copyright holder (of AEG court transcripts!). Their Agent was also to state in the takedown notice that he was authorized to act on behalf of the client as a “copyright holder” of the materials requested for removal. The Agent did state it in his paper, but since his physical or electronic signature was missing on the notice, the validity of his statement is evidently nil.
The second point attracting our attention is that the alleged infringer of someone’s copyright has the option to make a counter-notice to the Internet Service Provider, who in his turn will inform the claimant (the Agent and his client) about it and the claimant has 10-14 business days for filing a lawsuit against the alleged infringer.
Taaj has made such a counter notice despite her post-surgery condition (her courage and willpower are totally amazing) and if the claimant is indeed Sony/Epic/the Estate we will know it as they are supposed to file a lawsuit against the poor her.
Among other things they will also be supposed to prove that they can claim a copyright to the infringing files they wanted to be removed and though I am very sorry that Taaj will have to go through this I would still like to see how Sony/Epic/the Estate (or whoever the claimant is) will prove their rights to the AEG court transcripts.
The last point of the DMCA takedown/putback procedure says that if there is no lawsuit within 10-14 business days the Internet Service Provider is to put the blog back.
In fact Wiki says that it may put the blog back, so there are evidently other circles of inferno which the poor blogger has to go through in order to return to herself the right of freedom of speech declared in her country’s foundation documents…
Numerous sources say that at least 60% takedown notices like the one filed by our Agent are flawed and some even say that though contact information of the claimant or Agent may be real (it is a requirement of DMCA that all information be factually correct, else it invokes perjury), it is still entirely possible for the information to be false, fake or incorrect.
In fact to me the whole procedure looks like a perfect tool for getting rid of competitors and compromising others, because the Internet Service Provider is not obliged to check up the veracity of the copyright infringement claim, is supposed to act upon first notice and it is solely the business of the alleged infringer to prove that he or she did no wrong.
Wikipedia explains the flaws of the system:
There is some evidence that ISPs tend to quickly take down allegedly infringing content on request by copyright holders, in situations where the content is actually non-infringing and should be preserved.
Chilling Effects estimates that ISPs remove allegedly offending content even though approximately 60% of all takedown notices are flawed.
Notices can be flawed in several ways. Many fail to follow the requirements of the statute. Others ask for material to be taken down for reasons such as trademark infringement and defamation that are unrelated to copyright infringement.
Note: Judging by the takedown request by ‘our’ Agent defamation is cited there too though this issue is totally unrelated to copyright infringement, and this is how we know that the notification TeamMJ is dealing with is already flawed.
There is evidence of problems with the counter-notice procedure, arising from its complexity and also because ISPs are not required to inform users of its existence. According to Chilling Effects, while Google has taken hundreds of sites out of its index because of DMCA requests, not a single person has filed a counter-notice or received a counter-notice from any other OSP [Online Service Provider].
This may result from the inherent imbalance in prerequisites for the original complaint and the counter-notice. To get content removed, copyright holder Bob need only claim a good-faith belief that neither he nor the law has authorized the use. Bob is not subject to penalties for perjury. In contrast, to get access to content re-enabled, Alice must claim a good faith belief under penalty of perjury that the material was mistakenly taken down. This allows for copyright holders to send out take-down notices without incurring much liability; to get the sites back up, the recipients might need to expend considerably more resources. Section 512(f) makes the sender of an invalid claim liable for the damages resulting from the content’s improper removal, including legal fees, but that remedy is not always practical.
Furthermore, ISP’s tend to remove allegedly offending material immediately, while there is a 10-14 day delay before the ISP re-enables access in response to a counter-notice. For example, if a website advertised an upcoming labor protest outside BlameCo, BlameCo could send a DMCA notice to the site’s ISP alleging copyright infringement of their name or logo a week before the protest. The site would then be disabled; even if the site’s owners immediately filed a counter-notice, access would not be re-enabled until after the protest, too late to be useful.
ISP’s may also disregard counter-notices. Section 512(g) of the DMCA shields an ISP from liability to its customer for a DMCA takedown, if the ISP restores removed content following a counter-notice. In practice, however, an ISP may disregard the counter-notice, and instead rely on its own terms of service to shield itself from liability to its customer. For example, since April 2013, YouTube refuses to restore some counter-noticed content, citing an agreement YouTube made with third-party music content owners.
Additionally, there is no public record of takedown requests and counter-notices. This prevents the public from seeing how the process is used. (Chilling Effects has tried to make up for this shortcoming, but, so far, few OSPs besides Google submit their takedown notices.)
In short we are only at the beginning of the road and there is still much more to do and sort out. However Taaj and I did feel the need to inform everyone of what happened to TeamMichaelJackson in the hope that it will help her case and will enable us to eventually learn the truth.
Both of us want to know who is standing behind the attack against her blog and whether the Estate is indeed protecting AEG or whether it is a huge provocation against the Estate in the first place, and this is why we have joined our efforts.
Please copy this information and take it further because I am absolutely not sure that tomorrow this blog will still be alive and will not be accused of something similar too.