Adultery site Ashley Madison may be in deep legal trouble over hackers. Its copyright response just makes it worse.

By Jeff John Roberts
August 26, 2015
August 26, 2015

In the wake of a catastrophic hacking episode, class action lawyers are rushing to pummel Ashley Madison with claims of deceitful data practices. Now, it may be high time for someone to do the same over its curious copyright notices, which the adultery site has used to smother unflattering news.

The notices come in the form of spurious legal demands that rely on copyright law to hush up reports about a recent hacking debacle, which exposed the identities of millions of Ashley Madison users. This is a common trick, and one that Ashley Madison has used before to strip embarrassing information from the internet.

If you’re unfamiliar, the trick works like this: a company facing a PR crisis sends a so-called “DMCA notice” to websites like Twitter or WordPress.com, instructing them to remove content on the grounds of copyright infringement. In the case of Ashley Madison, the targets of its DMCA missives have included tweets that showed screenshots from accounts of Ashley Madison users and, possibly, websites that offered tools to help people search the data dumped by the hackers. While the copyright claim might be baseless, a targeted website will typically heed it so as to preserve its “safe harbor” (a legal shield that ensures websites are not held responsible for content posted by their readers).

The effect of a bogus copyright claim – in the form of an internet takedown – is not necessarily permanent. People who see their content disappear, such as folks who wrote or tweeted about the Ashley Madison hack, can ask the website in question to restore it. But the process takes at least ten days, which is an eternity when it comes to the internet news cycle.

As I’ve written before, the use of copyright claims to respond to hacking reports is not simply unjustified. It’s also ineffective since the information invariably turns up on the internet all the same, and any fuss over copyright is just a needless distraction from the real problem of hacking.

 

In response to a question about the basis for its copyright claims, an Ashley Madison executive pointed to an unrelated media statement from the company. For now, then, it’s hard to point to a legal justification as to why Ashley Madison is using copyright law to respond to the hacking crisis.

So does this mean Ashley Madison and others have free rein to pull such stunts in the future? Possibly not.

A potential solution to copyright misuse is tucked deep inside the takedown and safe harbor rules of the DMCA; it’s a little-used provision – 17 USC s. 512(f) – that provides sanctions for those who deliberately misrepresent copyright infringement. Even though the provision is rarely invoked, it could serve as an appropriate stick to punish Ashley Madison, especially as the company is almost certainly aware its copyright claims are bogus.

“Not only is it extremely unlikely that there is any copyright, the chances of those tweets then not being considered fair use seems small,” said Electronic Frontier Foundation lawyer Vera Ranieri, in response to an email query about certain tweets Ashley Madison has sought to remove.

Ranieri added, however, that courts have traditionally been reluctant to apply the punishment for copyright misrepresentation. This could change, however, in light of a recent court order and in response to the EFF’s ongoing attempts to seek lawyers’ fees and damages on behalf of the mother in the “dancing baby” case (a long-running dispute over a short YouTube clip showing a toddler dancing to a Prince song).

Of course, any copyright comeuppance for Ashley Madison would require someone to sue. And even if someone elects to step forward–perhaps a journalist or website affected by the copyright claim–the prospective reward, as with the hacking lawsuits, is unlikely to be rich.

But given Ashley Madison’s deep unpopularity (which is even deeper due to new allegations about its CEO’s deplorable behavior), many judges might be ready to make an example of the company – and make other firms think twice about misusing copyright to cover up unflattering reports.

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