It’s Fun To Stare At The DMCA!
On Friday the Orthoverse metaverse received a DMCA takedown notice. As a result, this weekend I had a crash-course in the Digital Millennium Copyright Act of the United States.
Which was fun, because I am interested in all forms of intellectual property, even copyright.
I also took down the Orthoverse voxel game site without prejudice, for now, just to be safe.
But fear not, the website will return.
A short history lesson
Way back in 1886, the Berne Convention for the Protection of Literary and Artistic Works (usually just called the Berne Convention these days) was proposed and subsequently ratified by ten countries. It set the foundation for a formalized set of rights that artistic creators have, by default, over their work — copyrights.
Nowadays, all but 18 countries have signed up to it. The United States was a late-comer, grudgingly joining in 1989.
The Berne Convention doesn’t say where a plaintiff can sue, but conventional jurisdictional principles say that generally speaking, a defendant should be sued in the country in which the alleged infringement occurred. Berne tells us what infringers can be sued for, and why.
Introducing the DMCA
In 1998 the DMCA was signed into law in the USA. This Act covers a lot of things, including the criminalization the cracking of digital rights management software, but what I am interested in here is how the Act aims to clarify copyright issues in the digital era:
- simplifying infringement proceedings for copyright holders by providing an easy process for submitting takedown notices against allegedly infringing websites, and
- protecting internet hosting companies that host user content from liability provided they promptly remove infringing material (the safe harbor provisions).
And these these two things are laudable, at face value.
If, as copyright holder, you notice a site like YouTube hosting your video, put up there by someone other than you, without your permission, you can quickly and simply tell them to take it down with a short DMCA takedown notice. And if the hosting site does so quickly, they are not liable for infringement damages.
In practice, most hosts will immediately remove the allegedly infringing material, because it makes economic sense. If you’re running a web hosting platform, why take the risk in keeping contested material up there? There is very little to gain, and a lot to lose if, as a hosting platform, you get dragged into copyright litigation.
Damages for copyright infringement can run into the millions of dollars. In the USA, you can be jailed for five years for copyright infringement.
No one wants to be sued and then lose a copyright infringement case in the USA.
Enter the Orthoverse
The Orthoverse metaverse, which is a voxel game that bears a superficial similarity to Minecraft (which was derived from and bears a superficial similarity to Infiniminer, which itself was derived from and bears a superficial similarity to Infinifrag, Team Fortress 2 and Motherload) received a DMCA take-down notice on Friday for copyright infringement.
Thanks, Lindsey! The fact that we only had three days to act on it makes Friday an excellent choice for submitting this, as I have more spare time at the weekend.
Note that you cannot copyright a game mechanism. You can patent some features of some games, but the DMCA does not cover patents — it is purely concerned with copyright.
You do get copyright protection for fonts, textures, the skins of players and mobs that you design, and even the specific “wording” of software code, but at the Orthoverse we carefully ensured that:
- we are using our own graphical materials, or ones that we have licensed,
- we are using fonts that have permissive licenses, or ones that we designed ourselves, and
- we are using code from an open source project that was developed from the ground up, in a different programming language to that used by Minecraft.
We may like to intentionally break business rules and marketing rules at the Orthoverse, but we’re not stupid, so we’re not going to intentionally break the law.
Peculiarities of the DMCA
As is always the case with the law, it can be abused. It is meant to be a shield for the innocent, and a sword against the guilty, but sometimes it is used as a sword against the innocent. The DMCA is no exception, and has been wielded aggressively and unjustly in numerous cases.
Furthermore, it is often used to “trick” alleged infringers to put themselves under United States jurisdiction. This is how the USA tries to get around the pesky requirement that cases are tried in the country of infringement.
Bad robot
There is a section in the DMCA to prevent malicious take-down notifications. Clearly, the Act could be and indeed has been used to indiscriminately fire out take-down notices as a form of censorship.
Getting a take-down notice for the first time can be alarming. My lizard brain felt a moment of panic when I saw it, until my neocortex kicked in. Richard has no lizard brain because he’s Corsican, so he was just annoyed.
So fear not! In the Act there is a provision to protect you against malicious take-down notices — see 17 U.S. Code § 512 (f) — “Any person who knowingly materially misrepresents under this section … shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer”.
So surely everyone takes great care to ensure that these notices are only sent out if it is fairly clear that infringement is taking place?
Oh, sorry — that’s refreshingly optimistic, but wrong.
Unfortunately, major companies are now using “Takedown-as-a-Service” companies to search for potential infringers and send out the notifications. These companies use web-crawlers and algorithms to search out sites that match their clients’ assets, often superficially, and then send out the required infringement notifications mechanically. They are firing off hundreds of thousands of notifications per week.
Presumably, no human being looks at the actual resemblance (if any) between the allegedly infringing site and the copyright owner’s works. And the result is that many of these notifications are completely and utterly unjustified.
But the company retaining the TaaS company can claim that they weren’t “knowingly misrepresenting” in the allegation.
And there is a second whammy…
Welcome to America
The “proper” legal response to a take-down notice is to issue a formal counter-notice.
The problem with such a response is that as part of it, you sign an agreement that the area of jurisdiction will be the United States. Through this, the USA tries to get around that awkward requirement that copyright cases must be heard in the country of alleged infringement.
If you’re an American citizen you may not see much of problem with that, but for the rest of the 7.4 billion of us on the planet, being dragged into the United States legal system, with its associated costs, distance, and probable systemic biases against non-US citizens and corporations, is not something to be relished.
Nobody who has a choice wants to run the risk of spending five years in a prison in Alabama if their case goes south.
Why pick on the Orthoverse?
There are plenty of voxel games out there that are substantial clones of Minecraft, and some are probably even using many, or all of the Minecraft graphics set. So why would the Orthoverse be targeted?
We probably weren’t. This stuff is highly automated, so it’s very likely that some web crawler spotted a similarity, and flagged us.
On the other hand, orthoverse.land only provides (or rather, provided) an in-browser JavaScript client for our voxel world, which makes crawling a bit harder. And then of course there’s the recent chatty Mojang ban on NFTs.
So who knows what the motivation behind this takedown notice was…
And what is the solution?
Before you can solve a problem you have to summarize it:
- automated bots are sending out DMCA takedown notices,
- most hosting companies remove the material automatically, because they have offices in the US, and therefore the risks of not doing so are huge, and
- if you respond with a counter-notice, any subsequent litigation is guaranteed to take place in the United States, which is undesirable for us.
So what is the solution?
Ah, that’s the topic of a future article, so keep your eyes out for it. Or, as an exercise for the reader, you can work it out yourself, while you wait for the return of the Orthoverse metaverse.
Coda
You may have noticed that the takedown notice is extremely general and vague on the topic of what Mojang’s agency thinks the infringing material is.
For the record — to the best of our knowledge the Orthoverse uses licensed, open source, or self-generated artwork and code, and therefore is not infringing Mojang. If anyone from Mojang is reading, feel free to message me and let me know exactly what you thought we did wrong.
Anyone else wanting to support the Orthoverse rather than shut it down — please do go to orthoverse.io and mint yourself an Orthoverse land token. As I write this, a token costs 0.001 ETH, or about $1.20. We make 0.0004 ETH per token.
