Glass Tongues Wag As "On Press" Returns, Tries Ineffectually To Censor Criticism By Abusing DMCA

Law, WTF?

Back in February I talked about how "On Press Inc." was indulging in bumptious legal threats and jibber-jabber against people who quoted the "epic" "poetry" of "poet" "Sean Shane," including his "greatest" "work" "Tongues of Glass," which goes something like this:

if only
our tongues
were made
of glass

all of my
medication
would slide down
so easily

and i could use windex
to get rid of the
taste
of wax fruit
when i forget again
and try to eat it
because it's motherfucking deceptive
it looks like REAL fruit
if there is a "real"
there's a class action in that
seeking counsel

tap tap
is this thing on?
MOM DO WE HAVE MORE FANTA

Or something like that.

Tim Cushing at Techdirt also did great work reporting on the hilarious-to-the-point-of-a-little-sad flailing of whoever was controlling "On Press Inc." Then the whole matter faded into obscurity, drowned out by the hordes of other unstable censors that gibber and howl on the internet.

Until now.

TorrentFreak reports today that "On Press Inc." sent Google a demand under the Digital Millennium Copyright Act (or a DMCA Notice, as it is commonly called) seeking to . . . well, it's not entirely clear. On Press Inc. sent Google a list of 147 web pages it claims infringed the copyright in "Tongues of Glass." That list included Popehat, Techdirt, BoingBoing, SF Weekly, and even Huffington Post, where a blogger at HuffPost Science had quoted the poem because doing so blocks vaccinations from giving your kids cancer. Though some of the pages on the list might have violated copyright by copying the poem without criticism or comment, the quotations by those blogs was clearly protected as fair use, as part of a comment on On Press Inc.'s disturbed behavior.

But wait, Google doesn't even host most of those pages. Was On Press Inc. demanding that we few, we happy few, be REMOVED FROM THE GOOGLE IMMEDIATELY? That's TorrentFreak's interpretation — that On Press means to make a delisting demand — but it's not clear. (Edit: Mike Masnick of Techdirt thinks it's clear they are asking for de-listing under DMCA; I'm not sure they grasp the DMCA that well.) Google, of course, refused to take action with respect to the pages constituting fair use, addressing only a few that apparently were simple copies.

Whoever sent the DMCA made certain oaths:

SWORN STATEMENTS

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
[checked]

The information in this notification is accurate, and I swear, under penalty of perjury, that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
[checked]

No minimally rational person could make those oaths honestly — even, I would argue, under the very narrow way that state has been interpreted.

It may be time to take action. The DMCA provides a cause of action against people who abuse it:

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Application of this section is complex and beyond the scope of this post. However, if anyone targeted by On Press Inc.'s frivolous and bad-faith DMCAs believes they have been damaged, they could file suit against On Press Inc. That suit may provide a vehicle for discovery into the identity of the actual person or persons responsible for the censorious DMCAs. If anyone targeted by the DMCAs is interested, I am happy to help you look for an attorney who might be interested in taking the suit to vindicate the free speech and fair use issues presented. We shouldn't tolerate such abuse to the DMCA.

Moreover, as before, if On Press Inc. ever takes the next step and sues anyone, please contact me. We will light the Popehat Signal and find you counsel to cockroach-stomp them.

Edited to add: BoingBoing picks up the story.

Edited again: Tim Cushing does some strong investigative work. Who is "Mike Miche"?

Last 5 posts by Ken White

34 Comments

34 Comments

  1. John O.  •  Nov 14, 2013 @8:39 am

    An invitation to get stomped on! One has to ponder if they are they C/S/T enough to RSVP for the party?

  2. Chris Rhodes  •  Nov 14, 2013 @8:55 am

    Ken needs to publish a book of satirical poetry. That would be "SHUT UP AND TAKE MY MONEY" territory.

  3. Xoshe  •  Nov 14, 2013 @9:00 am

    As much as I would absolutely love to see someone finally taken to task for submitting an obviously frivilous DMCA notice, there's been too many situations in the past where blatently wrong notices have been challenged and the best that has occured is the content being put back up. These notices have included: blatently fair use examples, content not owned by the submitter, or even content the submitter authorized the target to make use of.

    The problem is that the submitter has a MASSIVE "good faith" defense against allegations of abuse. The person who received the notice has the burden of proof to show that the notice was knowingly false, and that burden is nearly impossible to reach. Most cases I've seen have had everything short of a video where the content owner is cackling like a cartoon villian while they lay out their plot to fraudently send DMCA notices, and couldn't reach the burden.

    If someone is taking down a video that the US Copyright Office has specifically called out as an example of Fair Use, and can't be slaped with damages as a result, then I don't know what else one can do.

    I can only hope that the method to challenge a false notice gets toughened someday.

  4. Jon  •  Nov 14, 2013 @9:20 am

    Funny, the HuffPo link in the complaint points to an article about the Kony 2012 campaign. The article itself doesn't include any mention of the poem. The poem appears in the comments section in a comment by "On Press Inc" who is complaining about its use on the Invisible Children website. IANAL, but wouldn't their posting it in the comments section of the website constitute an authorization to publish it on that page? (I was hooked into checking that one because of your vaccine/cancer crack.)

  5. Matthew Cline  •  Nov 14, 2013 @9:23 am

    I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

    I've heard that this part of a complaint isn't sworn under penalty of perjury. Is that correct?

  6. Tali McPike  •  Nov 14, 2013 @9:32 am

    It made my morning to discover that my blog post on the antics of Shane/On Press Inc was among those listed on the DMCA notice. Looks like I'll have something to write about today.

    The only thing I have to say to Shane/On Press is this: COME AT ME BRO

    also: Brilliant poetry Ken, I ended up snorting my tea from the unexpected laughter while reading that. My sinuses are clear now, thank you.

  7. LT  •  Nov 14, 2013 @10:10 am

    I would gladly pay money for the Popehat Book of Poems.

    I'd also pay money to help anyone who challenges On Press, just to see those little bastards bite their glass tongue and promptly choke on the shards. (Don't mind me, I've been dealing with copyright/branding discussions at work all week and I'm cranky.)

  8. eigenperson  •  Nov 14, 2013 @10:16 am

    When I read the poem, I was confused, because I thought it was better than at least 99% of modern poetry, and I didn't understand why it merited all those scare quotes.

    I figured it out eventually, though. All I can say is that you certainly improved on the original….

  9. Craig  •  Nov 14, 2013 @10:22 am

    Ken, your parody is far superior to the original. The "wax fruit" bit is hilarious.

  10. Matthew  •  Nov 14, 2013 @10:22 am

    Has anyone even been convicted or even charged with perjury based on a bogus DMCA claim?

  11. Jay  •  Nov 14, 2013 @10:23 am

    Heh, the copyright registration date is after your article:
    http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=1&ti=1,1&Search_Arg=shaun%20shane&Search_Code=FT%2A&CNT=25&PID=2Y9LpJeYPzsI3B-MuiWQfR3eUG&SEQ=20131114121747&SID=2

    Although the registration claims a Feb 2013 date, being within 3 months of publication in Dec 2012, the Amazon.com listing (Which OnPress cites) lists March 2012 as the date of publication:
    http://www.amazon.com/Poem-Is-Nothing-Shaun-Shane/dp/1467522619/ref=cm_cr_pr_pb_t

    Someone's got some problems. If only DMCA notices were made of glass…

  12. Dion starfire  •  Nov 14, 2013 @11:07 am

    Sadly, there's already been a ruling that relying purely on an automated scanning system (with the inevitable errors any program will make) does not meet the requirements of 512f.

    iirc, the scanning system was so simple, it only looked at the titles of videos. Add in movie titles that can be ridiculously short and vague (e.g. "300", "Up", "Speed") and suddenly half the internet is subject to takedown notices that can't be punished under 512f.

    I hope that case has been appealed or that I'm misremembering some key detail that leaves open a chance to fight back against this corporate bullying. So, if anybody knows of a light of hope for this mess, please share it.

  13. Michael Donnelly  •  Nov 14, 2013 @11:17 am

    512f is a joke. And it's really a shame, since that's the weapon that speakers should have to discourage abusive DMCA takedowns.

    Instead, all of the bad rulings have turned it into a shield for "rightsholders" to zing them off with impunity. Got censored? 512f is your sole remedy and preempts any reasonable claims back.

    Good luck.

  14. Dan  •  Nov 14, 2013 @12:12 pm

    Mike Miche is definitely a real person who is not the same person as Sean Shane at all. He registered the domain when, it is rumoured, he was still a Philosophy Major at Yale.

    Soon to rush to both of their defense: Al Allen, Bill Ball, Carl Carrol, Dave Dove, Ethan Jeethan, and Marky Mark.

  15. rsteinmetz70112  •  Nov 14, 2013 @1:14 pm

    Then there's this Mike Miche from Houston TX.

    http://www.linkedin.com/pub/mike-miche/72/817/b8b

  16. Bear  •  Nov 14, 2013 @1:32 pm

    Just to get in on the DMCA fun with Shane/Miche/On Press/bogus-division of Knopf, here are my two devalued zinckies on the subject:
    http://www.bussjaeger.org/index.html#glass-troll

  17. Tali McPike  •  Nov 14, 2013 @1:39 pm

    there is reason to believe that the Mike Miche in Houston is Shane. In the Techdirt by Tim Cushing (which Ken linked in the update) the phone number used to register the website sports a Houston area code. Plus the obviously Shane commenter on my blog post commented from an IP located just outside of Houston.

  18. En Passant  •  Nov 14, 2013 @1:53 pm

    … the phone number used to register the website sports a Houston area code.

    And 126 Manzanita Way Salinas, CA 93908 is listed at ForSaleByOwner.com as vacant.

  19. Tali McPike  •  Nov 14, 2013 @1:56 pm

    is it just me or is that a female in the picture associated with that Mike Michelle linkedin? That puts a whole new level of weird into this whole thing (especially because IIRC there was a woman involved in Tim's initial digging into this whole thing)

  20. En Passant  •  Nov 14, 2013 @2:21 pm

    The Mike Miche linkedin profile indicates:

    Moscow Academy of Art and Sociology
    English Literature Ph.d., English Language and Literature, General
    1975 – 1985

    But the copyright registration noted by Jay above indicates:

    Copyright Claimant: Shaun Shane, 1964- . Address: 126 Manzanita Way, Salinas, CA, 93908, United States.

    So, Shaun Shane and that particular Linkedin Mike Miche don't seem to be the same person.

  21. KeithB  •  Nov 14, 2013 @2:41 pm
  22. Arreo  •  Nov 14, 2013 @2:53 pm

    Ok… well he also appears to like Astroturfing/sock puppeting youtube channels.

    These are all different channels that have uploaded the exact same videos:

    http://www.youtube.com/channel/UC65KbckCkNnYrDmA4NB51sw
    http://www.youtube.com/user/PoetSocietyNY
    http://www.youtube.com/channel/UCil2vkAb_3BeCLcXUK34X0Q
    http://www.youtube.com/user/annemurphy171
    http://www.youtube.com/channel/UCL6StGIgNpNT-jE8TvomZ5w

    This is not how you make your poetry popular….

  23. Brandano  •  Nov 14, 2013 @2:56 pm

    If only we had glasses for our tongues, maybe we'd have a better taste for poetry.

  24. That Anonymous Coward  •  Nov 14, 2013 @9:54 pm

    Um kids… the address for the deceased Shaun Shane is an EMPTY LOT.

    The copyright was assigned to a "dead man" who it is claimed was just a pseudonym of someone else.

    So
    A copyright was issued to someone who On Press claims is DEAD.
    A copyright was issued to the dead man at a false address.
    No transfer/assignment of the copyright has been made to On Press.
    A copyright application had MORE false data about when the work was produced.

    I'd like to point out the simple fact there isn't a single way for me to report this but they can file documents under penalty of perjury but can escape that fate if they thought it was, demonstrates how out of whack the system is.

    If I lied to the Government on an offical document, would I be facing charges? If not I'm gonna go copyright a whole buncha crap under a fake name and profit.

    Imagine what I might find when I have more than 20 minutes to spend on this.

  25. Tice with a J  •  Nov 14, 2013 @10:12 pm

    A futile threat over a worthless poem written by a dead man on an empty lot…this is getting to Prenda-levels of crazy.

  26. G Thompson  •  Nov 14, 2013 @10:41 pm

    After reading the first paragraph I had the urge to send this article over to http://www.unnecessaryquotes.com . ;)

  27. Dan T.  •  Nov 15, 2013 @9:43 am

    I hope nobody confuses On Press with Oni Press, a perfectly respectable comic book / graphic novel publisher (Scott Pilgrim, Bad Machinery) that (as far as I know) doesn't sue or threaten people.

  28. rsteinmetz70112  •  Nov 15, 2013 @10:05 am

    I tried to look up On Press at the Texas SoS website but it appears to require registration and a fee to do a simple search for the Agent for Service. Can someone confirm?

    @TAC assuming all you write is true, and it might not be (an assignment need not be reported to anyone so it could exist). If they only threaten and never sue anyone who is going to be able to take them to court?

    Presumably Google could over the DCMA notices, but I doubt they would bother.

  29. SarahW  •  Nov 15, 2013 @12:06 pm

    The linked in profile is using the borrowed picture of a realtor for some reason. The old Mike Miche facebook has a first post from Nov 2010 and that post links to a Shaun Shane "appreciation" page.

  30. SarahW  •  Nov 15, 2013 @12:14 pm
  31. JTG  •  Nov 15, 2013 @12:59 pm

    Back in February, Tim Cushing also wrote this article. In it, he has a screen shot that contains the following text:

    @tamarratown copyright infringement is a crime and twitter will have to terminate your account or they are libel

    Independent of the legal validity of that statement, I thought that quote would have special meaning to the readers here.

    Also, according to that article, if you write a satirical review of Shaun Shane's book on Amazon, you actually get a phone call from a "lawyer". (In Tim's case, the putative lawyer's name was James Roth. Check out the article for the significance of the word 'putative'.) Anyone up for trying to replicate this feat?

  32. JTG  •  Nov 15, 2013 @2:00 pm

    Oops, I just noticed that the link that I put in my last comment is actually at the *top* of Ken's article. So, my apologies Ken, I didn't mean to steal any of your thunder.

  33. That Anonymous Coward  •  Nov 16, 2013 @1:00 am

    @rsteinmetz70112 –
    Except their little game can have people's accounts terminated based on claims that are not real.

    The assignment might not need to be filed, but the author is DEAD according to On Press. He died before the copyright could be issued. On Press was sending notices 4 days after they claim the first public performance.

    So I think that someone at the copyright office needs to investigate what is going on here. Otherwise people could file copyrights on things that have nothing to do with, use false information, and be given all sorts of rights… all based on lies.

    This case highlights how broken copyright and the DMCA process is. There is clear evidence that fraudulent notices were used, but the system has nothing to help the target. Where someone can send out absolute crap and lies and the law demands they be given every chance (and then some). Like some of those lawyers I dislike, who even when a Judge called it wrongdoing in his courtroom he yelled and send them on their way rather than refer the matter to the right authorities… while it might have denied the world the joy of the implosion, several thousands people wouldn't be suffering for the system not holding itself accountable.

  34. En Passant  •  Nov 16, 2013 @12:19 pm

    Back when dinosaurs roamed the Earth, a college prank even then more legendary than real was to create a fictitious person and attempt to put him through college from admission to graduation. Often the "person" was actually a pet cat or dog. When the prank was revealed, everybody laughed.

    I think the whole Shaun Shane phenomenon may be a related undertaking, even if Shaun Shane is an actual person. The key is that a particular dog has not barked. That dog is an actual lawsuit, or involvement of a court.

    Whether Shaun Shane is an actual person seeking to publicize himself, or a fiction created by parties unknown, the persona Shaun Shane has only made himself slightly legally liable but unlikely to be actually prosecuted, by providing false domain registration information, by making bogus DMCA takedown demands, and the like. For those acts, nobody is likely to haul the entity into court, because he simply cannot be found, and there is little incentive for anyone to do so if he could be found.

    Some targets may comply with the demands. Some may not. But many will make noise, and thereby publicize the persona or the "poetry". That may be the point of the exercise. Think of it as a variant of an artistic "Happening".

    There are historical literary precedents for such things, dating back at least to the 17th century when writers sometimes created fictitious authors, and published works through murky and untraceable means. The reasons at the time were to avoid prosecution for such crimes as criticizing the king, or even to avoid ostracism for taking the "wrong" position on some public issue.

    To actually hail someone into court would put the perpetrator(s), or the artist(s) if you prefer, at significant legal risk. As the Prendistas are discovering, pressing a fiction so far that it defrauds the courts is a dangerous game.

    But, if an "artist" stays clear of that boundary, pressing a fiction can create considerable public response, whether one's motives are purely "artistic", or even malicious, to create some degree of FUD among his targets.

    The art in this "Tongues of Glass" flap may not be the execrable poetry. The art may be the flap itself.