This story goes back several years, to a time when the lawyer in question was once heralded as an opponent of copyright trolls — those lawyers and businesses who threaten to sue alleged file-sharers and then make a nice profit when that threat results in a settlement. As TorrentFreak points out, this attorney once referred to trolls as “bill collectors for the movie industry” who were just “extorting money.”
But at some point, he had a change of heart and his firm got into the business of suing alleged pirates. This did not go unnoticed, and in 2011, FightCopyrightTrolls.com posted before/after screenshots of the firm’s website demonstrating this change and referring to the lawyer as a “weretroll.” The site subsequently published other critical articles about this lawyer.
And then last week, the attorney sent a DMCA takedown letter, not to FCT’s editors, or its lawyers, or to its hosting company, but to the site’s domain registrar. The letter states that FCT had posted “my website pictures and inserts defamatory and libelous statements” and demands that the registrar remove the allegedly infringing content from its servers and “immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the future.”
Except the domain registrar doesn’t host anything, so there’s no content that could be removed from its servers. Additionally, the DMCA does not apply to domain registrars, so the lawyer isn’t even dangling his legal sword above the correct head.
The second big goof with the letter is its allegation that FCT’s use of images from the law firm’s website somehow constitutes copyright infringement. He offers no explanation for how these images violate his copyright or whey they would not be considered fair use. The two before/after images shown in the letter are from an article specifically about the lawyer’s shift of opinion and are vital to the core of the news story to which they are attached. These are not trade secrets nor was FCT attempting to use these grabs to trick people into thinking they were the law firm. So it’s hard to see — especially in the absence of any explanation from the lawyer — why the DMCA would require anyone take down this content.
Perhaps the most problematic issue with the letter comes from the lawyer’s argument that “defamatory and libelous statements” should be included in what he considers to be infringing content.
Even if you agree with his claim that the images from his firm’s website violate his copyright, the best a DMCA takedown notice could hope to achieve is to remove those images. The DMCA does not deal with libel or defamatory content, and the Communications Decency Act would give the site’s domain registrar immunity from those statements anyway.
Putting aside for the moment that the supposedly libelous content cited in the letter appears to fail the standard test for defamatory speech, the question of whether or not it is libelous should be a matter for the court to decide; not something to be declared as fact in a poorly written letter to a domain registrar.