[WikiEN-l] Aww, so cute, a banned user is trying to take us down with a DMCA notice

[Ray Saintonge]

Mark Gallagher wrote:

>Will,
>
>   he's not trying to take Wikipedia down at all.
>
>Here's what happened:
>
>1) Patrick wrote a bunch of articles on mathematics and computer
>    science-related topics.  They were quite good, really.
>
>2) One of them was full of original research.  It was taken to AfD, and
>    mocked.
>
Perhaps there should be a way of punishing those who abuse process that 
way.  That lack of civility is every bit as serious as breaching 
original research rules.

>3) He wasn't very happy about this (gosh, I wonder why?), and declared
>    that we couldn't use a couple of *other* of his articles.  He tried
>    blanking the articles, but was reverted by Tawkerbot.  So then he hit
>    on the idea of a DMCA takedown notice to force us to remove his
>    contributions from our records.
>
It's an interesting approach which opens up a lot of fantastic 
opportunities.

>Okay, not the nicest thing or the smartest thing that he could have 
>done.  But this is a case of a user we did wrong by, who over-reacted. 
>This is generally considered something to be regretted, not an 
>opportunity for humour.
>
>He's sincere, and hurt, and there's no call to go making fun of him 
>here, and especially not to republish his full personal details, 
>including home address.
>
In these circumstances, there is nothing wrong with publishing personal 
details.  It may even be legally required. 

One of the requirements of takedown orders is that the alleged infringer 
must be notified by the service provider (Section 512(g)(2)(A)).  It 
would seem that the practical approach would be to put a copy of the 
full takedown order where the article once appeared.  That notice is a 
legal document which includes, among other things, the notifier's 
identifying details.

There is an open question about just who is the infringer.  Presumably, 
it's _everyone_ who participated in editing that page, or at least it 
should be for purposes of determining who should receive the notice.  If 
they aren't infringers they have a legal complaint that their work was 
illegally removed.

Unlike original notifications which require that the person complaining 
of copyright infringement must have a personal interest in the material, 
there does not appear to be any requirement that a person issuing a 
counter notification must have a personal interest.  The law uses the 
term "subscriber".  That could mean anyone with a Wikipedia account!  
The standard in 512(g)(3)(C) is "A statement under penalty of perjury 
that the subscriber has a good faith belief that the material was 
removed or disabled as a result of mistake or misidentification of the 
material to be removed or disabled."  The other requirements relatively 
more mechanical.  One does not even need to describe the basis for that 
good faith belief, but providing such a description could still go a 
long way to resolving the legal issues

I assume that the take down notice under consideration was properly sent 
to Michael Davis in his capacity as the registered agent, and that there 
was no mistake in that regard.  There are however other arguments that 
could establish the required good faith.

A service provider is still protected by a safe harbor if he does not 
comply with a substantially deficient notification.  In this case the 
notice is deficient in identifying the works that were infringed.  He 
merely repeated the titles of the articles, which, oddly enough included 
two talk pages.  What this provision should do is identify the truly 
original works so that either the service provider or a subscriber can 
seek out those works, and with due dilligence determine for himself 
whether he believes that an infringement really took place.

If our complainer is through some recursive slight of hand both 
contributor and infringer of something that was originally written as a 
part of Wikipedia he is in violation of the GFDL.  GFDL makes no sense 
unless the licensing is irrevocable in the first place.

Does any Wikipedian living in the United States want to issue a counter 
notification giving jurisdiction to the Federal District Court where he 
lives?  I could file from outside the US, but I am having a problem 
interpreting the phrase "any judicial district in which the service 
provider may be found".  For me the most convenient district would be 
the one that includes the State of Washington, but it's unclear whether 
that choice is available to me.

Ec