Commons:Office actions/DMCA notices/2014

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DMCA takedown for File:AircraftBK.png

In compliance with the provisions of the US Digital Millennium Copyright Act (DMCA), and at the instruction of the Wikimedia Foundation's legal counsel, one or more files have been deleted from Commons. Please note that this is an official action of the WMF office which should not be undone. If you have valid grounds for a counter-claim under the DMCA, please contact me. The takedown can be read here. 

Affected file(s):

Thank you! Philippe Beaudette, Wikimedia Foundation (talk) 07:34, 24 February 2014 (UTC)

In general in such cases it is a good idea to look at the uploaders other contributions too.
etc. I think it is clear that here a user tried to promote a company, maybe as an employee or maybe voluntarily. For that purpose and toke marketing material from that company. This maybe happened with permission from the company for those materials that the company holds the copyrights or it happened under a jurisdiction where the company can buy copyrights from third party creators... even though the DMCA and the GettyImages pic show us that this isnt true. But in any case the Wikimedia account of the uploader still represents the user, a person, not a company. So in any case the user cant claim credit for himself. So it is obvious that there never was a valid license for the content that this user uploaded and it is questionable, why still the content that he uploaded is still on our project. --Martin H. (talk) 12:23, 24 February 2014 (UTC)
I am with Martin H. here. This morning, as I spotted the DMCA, I looked through the other uploads. They are highly dubious, never ever "own work". I filed 1 DR and 1 Copyvio (already deleted). But due to lack of time I had to stop the control. Raymond 12:34, 24 February 2014 (UTC)
Absolutely, but that's not the role of the WMF. We don't patrol content, we only act on takedown orders. Philippe Beaudette, Wikimedia Foundation (talk) 09:48, 27 February 2014 (UTC)

Southern-baptist-convention.svg

In compliance with the provisions of the US Digital Millennium Copyright Act (DMCA), and at the instruction of the Wikimedia Foundation's legal counsel, one or more files have been deleted from Commons. Please note that this is an official action of the WMF office which should not be undone. If you have valid grounds for a counter-claim under the DMCA, please contact me. The takedown can be read here. 

Affected file(s):

Thank you! Philippe Beaudette, Wikimedia Foundation (talk) 21:54, 3 April 2014 (UTC)

It's interesting that what claims to be DMCA notice appears to be actually about trademark (including referencing Trademark# 73208125), not copyright. —RP88 00:09, 4 April 2014 (UTC)
Also, I don't know if it's important, but Philippe (WMF), you notified the user Graevemoore who has never had an account on Commons nor has he had a global account. Are you sure you notified the right account? —RP88 00:27, 4 April 2014 (UTC)
I'm guessing the intended target was en:User:Graevemoore. Magog the Ogre (talk) (contribs) 04:12, 4 April 2014 (UTC)
Ah, OK, thanks. —RP88 04:21, 4 April 2014 (UTC)

Hi RP88. This notice is a follow up to earlier communications between WMF Legal and the attorney, James D. Jordan. I explained to Mr. Jordan back in January that if his client was asserting copyright ownership in the underlying image in addition to trademark claims, the WMF would only act upon a copyright infringement notice that incorporates all the elements stipulated under 17 U.S.C. 512(c)(3). Although Mr. Jordan continues to allude to the logo's registration as a trademark, the notice specifically claims that "[t]he work (the logo) was not authored by Graevemoore and Graevemoore has no right to grant anyone the right to use the logo." Unfortunately, until and unless en:User:Graevemoore counter-claims, we have to take the Southern Baptist Convention assertion of copyright infringement at face value. Since the image was being used on Wikipedia and Commons as an original work, not under a claim of fair use, we had to take it down. AVoinigescu (WMF) (talk) 16:51, 4 April 2014 (UTC)

I should also add that If the community wishes to use the image under U.S. fair use principles and in compliance with applicable project policies, we would be happy to re-evaluate the claim. AVoinigescu (WMF) (talk) 17:53, 4 April 2014 (UTC)

Hermann Herzog

In compliance with the provisions of the US Digital Millennium Copyright Act (DMCA), and at the instruction of the Wikimedia Foundation's legal counsel, one or more files have been deleted from Commons. Please note that this is an official action of the WMF office which should not be undone. If you have valid grounds for a counter-claim under the DMCA, please contact me. The takedown can be read here. 

Affected file(s):

Thank you! Jalexander--WMF 21:52, 10 April 2014 (UTC)

Paintings by Hermann Ottomar Herzog. WP says "Following his death, his family retained a large group of his paintings, most of which were released to the art market in the 1970s." So these paintings are probably still under a copyright. Yann (talk) 07:10, 11 April 2014 (UTC)

The original email is unreadable without word-wrapping. If volunteers were allowed to edit the WMF website I would have fixed it whilst I was there. Could you fix the pre tag with suitable wrapping styles so that it is readable? Thanks --Fæ (talk) 22:24, 10 April 2014 (UTC)
The appearance of Sentinel Rock (i.e. File:Hermann Herzog - Sentinel Rock, Yosemite.jpg) on the list of Herzog's works deleted via DMCA is interesting. This work was created in 1875 and put on public display in 1876 at the Centennial International Exhibition (i.e. the first World's Fair in the United States), where it received an award. This would be a counterexample to the position taken at Commons:Public art and copyrights in the US in which "U.S. publication" is considered to include public exhibition in a public U.S. location without restrictions on copying prior to 1978. —RP88 22:28, 10 April 2014 (UTC)
+1 I was just about to point out the same history. This should be restored as the DMCA cannot be valid for a painting with this public exhibition history. Perhaps we should create a UDR thread for the community to reach an opinion as to the exhibition history on all other works deleted (though of course admins cannot act to restore the file)? --Fæ (talk) 22:39, 10 April 2014 (UTC)
  • Thanks for the link to the Exhibition, I've alerted the lawyers to that to follow up. If you see any others where we think we have proof of publication please let us know. @Fæ: hmm, it seems firefox isn't respecting the word-wrap tag I already have there (chrome shows well), I'm experimenting with a couple other things but if you have a specific suggestions let me know. Once it looks good to me on FF I'll update here. Jalexander--WMF 22:50, 10 April 2014 (UTC)
I can't see the painting now that it's been deleted, but It's possible that the deleted painting is not the famous Sentinel Rock, but instead one of his lesser known works with a similar name (e.g. View of Sentinel Rock, Cosmopolitan Saloon and Sentinel Rock, etc.). Most, if not all, of these are pre-1900 works, but their publication and exhibition history differ. —RP88 22:51, 10 April 2014 (UTC)
(EC) It's 'View of Sentinel Rock'. --Denniss (talk) 23:03, 10 April 2014 (UTC)
Hi everyone -- you can get history from the exchange I've had with the lawyer representing the alleged copyright holders, but, in a nutshell: The lawyer for the alleged heir to the copyright in these paintings has claime that all were published between 1964 and 2002 with the appropriate copyright notices, thereby entitling them to a 95-year copyright terms from the date of first publication. To date, the alleged copyright owner has declined our request for proof of the year of publication, place of publication, and inclusion of proper copyright notices. Unfortunately, despite the lack of such evidence, our obligations under the US Digital Millennium Copyright Act (DMCA) clearly requires us to remove the works upon receipt of a DMCA takedown notice that appears valid on its face. If you are aware of facts contrary to the copyright owner's assertions, please let us know. We'd be happy to re-evaluate the status of any of these works. AVoinigescu (WMF) (talk) 23:01, 10 April 2014 (UTC)
Thanks, no worries. This is why I'm suggesting discussion so we can find alternative sources for earliest exhibitions. --Fæ (talk) 23:07, 10 April 2014 (UTC)
(ec with Denniss) The file is "View of Sentinel Rock, Yosemite" (I'm not an admin, but not that hard to track down using other methods). So, yes, we would need to track down the history of that painting, in particular it's history and others at the Brandywine Museum. --Fæ (talk) 23:07, 10 April 2014 (UTC)

User:Jalexander: Is it intentional that foundation:File:DMCA_Take-Down_Notice_-_Wikimedia_040814_(1)(signed).pdf is so superficially redacted? The relavent info that is "blacked" out is still in the text layer of the pdf, as well as being duplicated in the PDF metadata. Bawolff (talk) 23:52, 10 April 2014 (UTC)

  • @Bawolff: I was attempting to do it with as minimal effort as possible (I literally just put black boxes over the issues). I used to have Acrobat on my computer which helped deal with much of it automatically, clearly the current tool is not up to snuff. I'll work on stripping the meta data and getting a more redacted copy up as soon as I can. Jalexander--WMF 00:57, 11 April 2014 (UTC)

I'll just note that there is microfilm at the Smithsonian's Archives of American Art of an 1899 documented publication of 220 Herzog paintings at http://www.aaa.si.edu/collections/herman-herzog-papers-9663 "Reel 1110: Auction catalog of 220 Herzog paintings, M. Thomas and Sons Galleries, Philadelphia, Penn., December 5-8, 1899. Illustrated, not priced." Don Herzog, Jr. (presumably a grandson) let the AAA copy this, and wrote a related Master's Thesis in 1974 a the U. of Virginia. Smallbones (talk) 21:47, 16 April 2014 (UTC)

@Smallbones: Just a note here that in a completely personal capacity I've ordered those microfilm reels to take a look. Not sure how long they'll take over inter library loan (and if someone else was already planning on doing that i'm happy to cancel) but can't hurt, it's always cool looking through microfilm anyway. Jamesofur (talk) 18:25, 18 April 2014 (UTC) for complete disclosure as mentioned on my user page in my staff capacity I am Jalexander above .
@Jamesofur and Jamesofur: Sounds ok to me. A couple of suggestions. Maybe there is somebody in DC who could go down there and take a look. There was an edit-a-thon there (AAA) once so folks know each other. Titles alone might not verify, same title may be used for 2 pix, but this says illustrated so a (low quality) 1899 photo or engraving should be enough to verify if they have the same title. 220 out of 1200(?) total paintings means fairly good odds to find something. I'm trying to think of the last time I used microfilm. 1988? Do they still have those printer thingees that let you make copies? Smallbones (talk) 21:17, 18 April 2014 (UTC)
Note: It's my understanding (corrections welcome) that it's much safer and easier for the WMF to restore the works if the uploader (Staszek99 is one, if not the only one, and is recently active) files a counter-notice. Otherwise, we realistically need all of WMF's OK, rock-solid evidence, and a legal precedent as a goal (as we had in the NPG case). If we can provide the uploader(s) with evidence to support a counter-notice, that's quite helpful. Sounds like James is on the evidence trail. Let's be in communication with the uploaders if we aren't already. --Elvey (talk) 11:05, 24 May 2014 (UTC)
There is no way to cancel the risk entirely. If the WMF undeletes a file without a counter-notice, then the Foundation takes a risk. On the other hand, if the uploader sends a counter-notice, then the uploader takes that risk instead. It is my understanding that anyone (not necessarily the uploader) is free to send a counter-notice, but in that case, whoever sends a counter-notice takes a risk and might have to go to a court in the United States to defend himself. It is just a question of who is willing to take that risk. --Stefan4 (talk) 12:56, 31 May 2014 (UTC)
Thanks for the comment/clarification. Of course, nothing we ever do is entirely without risk. Regarding a counter-notice from anyone other than the uploader: Is there case law that you're aware of/thinking of? The law mentions "A statement under penalty of perjury that the subscriber has ..." and is regarding "material residing at the direction of a subscriber of the service provider." I'm a 'subscriber' to the WMF's service, but the material is not residing at my direction, so I'm not the subscriber, so so why would a counter-notice from me be 'effective'?--Elvey (talk) 01:09, 4 June 2014 (UTC)
My understanding is that the definition of subscriber is never given and so is fairly flexible when it comes to "non tradtional" ISPs such as ourselves. It is the interpretation of our lawyers and others that at some level 'everyone' who uses Wikimedia sites would be considered a subscriber in this regard implicitly directing the image to be used/stored because you want to use it. You can see an example sent by a non uploader at counter notice on wmfWiki. I imagine at the very root level you could, theoretically, reupload the image, get it deleted under the DMCA (which still needs to be enforced on a new upload) and then you are the person who explicitly directed the image to be stored but I don't believe that's necessary. While we have certainly accepted counter notices like this on multiple occasions (I think almost all if not all of our counter notices, which are obviously rare themselves) case law itself is likely hard to find on it just because it's usually the subscriber/uploader because they are the one with the biggest reason to want it back up and often the only ones to really know. In our case that isn't always an easy assumption to make. Jalexander--WMF 01:36, 4 June 2014 (UTC)
  • Based on the quote by User:Yann above, it seems that there indeed are some paintings by this painter which still are copyrighted in the United States. It is unfortunate that the copyright term for unpublished works is so much longer than the copyright term for published works. It is also unfortunate that it is so difficult to find out when a painting was first published. I have some specific points about the paintings:
  1. In 1942, there was an interesting court ruling, w:Pushman v. New York Graphic Society, which held that transfer of the only copy of a work also resulted in transfer of the copyright of the work, unless the contract documenting the transfer of the work explicitly says otherwise. Thanks to this court ruling, there are probably lots of paintings whose copyright is no longer held by the painter or the painter's relatives, but by completely different people: museums, art galleries, private collectors et cetera. The Pushman case is only applicable if the transfer of the ownership of the copy took place in the United States, and only if the transfer took place before 1978. From User:Yann's quote above, we can tell that many paintings were released to the art market "in the 1970s". It is not clear if they were released to the art market continuously during the 1970s, or if all were released to the art marked at a fixed point during the 1970s. If some of these paintings were released to the United States art market before 1978, then I suspect that the copyright is not held by the painter's heirs, but by other, completely unrelated, people, normally whoever happened to be the owner of the painting at the end of 1977, and possibly impossible to identify. While this does not say anything about the copyright status of the paintings, it also means that there is no valid take-down request with respect to those paintings, as the take-down request does not follow 17 U.S.C. § 512(c)(3)(A)(i). Should the copyright still be in effect (but held by other people), we would nevertheless want to take down the images, but it may be a better idea to complain that the take-down request is invalid and then transfer the matter to a normal deletion request instead, for community evaluation.
  2. I have discovered this page at the w:Heckscher Museum of Art. The page shows a painting titled The Lure of Norway, which is held at the museum and which has "product number" 1959.16. Looking at this and other painting, the four-digit number seems to be a year, possibly the year when the painting was acquired. If the museum acquired the painting in 1959, then I would argue, per the Pushman case, that the painter's heirs lost the copyright to the painting in 1959 or earlier, and that the Heckscher Museum of Art became the owner of the copyright in 1959, should it still have been in effect at that time. Also, if the painting was acquired by the museum in 1959, then I would argue that it was presumably also exhibited in 1959 or shortly thereafter. Under section 23 of the Copyright Act of 1909 and section 304 of the Copyright Act of 1976, the copyright holder would have to submit a renewal application approximately 28 years thereafter, or else the painting would enter the public domain in the United States. These are the sections on which we are basing our {{PD-US-not renewed}} template. Upon a quick look, I do not find any renewal application for this painting, but others are also welcome to take a look. The list above mentions File:Hermann Herzog - The Lure of Norway.jpg, a painting with the same name. If this is the same painting, then a request for restoration of the painting may be successful, but I would recommend contacting the Heckscher Museum of Art for clarification on when the painting was acquired and exhibited. It may be easier for people who live closer to the museum to do so. For example, case law seems to show that exhibiting a painting at a museum before 1978 only counts as publication if the museum allowed the general public to take photographs at the museum when the painting was exhibited, and I do not know whether the Heckscher Museum of Art permitted photography in 1959, or how to find out. It may simplify things if we can find an old exhibition catalogue which contains the painting, as the painting was then published in the catalogue. --Stefan4 (talk) 12:56, 31 May 2014 (UTC)
Kudos for all that. The catalog Jalexander ordered on microfilm should do nicely for that purpose.--Elvey (talk) 01:09, 4 June 2014 (UTC)
Aye, this is awesome, the slow speed of the inter library loan system has made this not come yet but it should be here soon (it may have already been out). Jalexander--WMF 01:36, 4 June 2014 (UTC)
had you pinged Wikimedia DC, we could have had the book uploaded and transcribed at wikisource by now. but there's no rush. fyi here is the UVa dissertation [1] Slowking4 ♡ Farmbrough's revenge 02:23, 4 June 2014 (UTC)
@Jalexander: Did you ever get that microfilm? Kaldari (talk) 19:55, 5 May 2015 (UTC)

DMCA Takedown- File:Erbil_city_center.jpg

In compliance with the provisions of the US Digital Millennium Copyright Act (DMCA), and at the instruction of the Wikimedia Foundation's legal counsel, one or more files have been deleted from Commons. Please note that this is an official action of the WMF office which should not be undone. If you have valid grounds for a counter-claim under the DMCA, please contact me.The takedown can be read here.&ensp

Affected file(s):

Thank you! Philippe Beaudette, Wikimedia Foundation (talk) 23:47, 11 August 2014 (UTC)

  1. Why wasn’t this treated as a regular DR?
  2. Was the claim followed up and confirmed?
  3. Why does the page look like it was edited by someone with no knowledge of wikitext or of even the simplest HTML?
-- Tuválkin ✉ 02:56, 12 August 2014 (UTC)
To questions (1) and (2) – you do understand that the WMF is legally required to take down a file when it receives such a notice, otherwise they make themselves a target for lawsuits because they lose their safe harbor status? They have to apply something even stronger than COM:PRP; if they can't prove the takedown notice is wrong, they have to delete the file and can't go through community processes (note that this is still a much fairer system than EU "actual knowledge" tests for website operators). As for (3), I think it's in pre tags because it's a plain text email in the original. darkweasel94 06:36, 12 August 2014 (UTC)
The cruddy format problem has been raised before. It's a work of moments to create a template to do this better for all future notices, but we can't edit the site, so an employee has to do it for themselves.
I did take a look at this case for a few minutes. The image has been withdrawn from Flickr, which is itself pretty convincing as it continues to be displayed on the claimed photographers account. It is worth noting that the photograph appears in many places on the internet, however this could be the result of having been hosted on Commons, courtesy requests and potentially further DMCA notices would be needed to remove others, though they all appear lower resolution. With a credible DMCA it is perfectly acceptable to delete immediately, there are very few of these and us volunteers can challenge if we think it is less credible than originally thought. --Fæ (talk) 12:04, 12 August 2014 (UTC)
We should look more closely at Diyar se's uploads. This wasn't their only case of blatant license laundering using their own Flickr account, which is full of other people's works. —LX (talk, contribs) 06:19, 12 August 2014 (UTC)
Good that you mentioned this before, I just stumbled upon this too. Will have a look in other uploads from this user and will delete files from that flickr account on sight for blatant license laundering. --12:03, 19 September 2014 (UTC) p.s.: no other files, flickr account Diyar se has been blacklisted on August 22 2012 already. --Martin H. (talk) 12:10, 19 September 2014 (UTC)

In compliance with the provisions of the US Digital Millennium Copyright Act (DMCA), and at the instruction of the Wikimedia Foundation's legal counsel, one or more files have been deleted from Commons. Please note that this is an official action of the WMF office which should not be undone. If you have valid grounds for a counter-claim under the DMCA, please contact me.The takedown can be read here.

Affected file(s):

Thank you! Philippe Beaudette, Wikimedia Foundation (talk) 23:47, 17 September 2014 (UTC)

And that does not affect the three other versions? -- Asclepias (talk) 00:25, 18 September 2014 (UTC)
I take down what I'm told to, and not a single file more. :-) Philippe Beaudette, Wikimedia Foundation (talk) 01:52, 18 September 2014 (UTC)
Can we have a copy put up on en-wiki, with a claim of fair use, and the correct authorship? Or if you won't/can't do it, if such a copy was put up by a U.S. citizen, not a member of WMF, for use specifically on article en:India_Against_Corruption, who was wishing to assert their 1st Amendment fair use rights, would that be covered by this take-down request, and if so would that person then have standing to issue a counter-claim? Jheald (talk) 05:32, 18 September 2014 (UTC) (not a U.S. citizen).
Hi. The organisation has offered a low-res version [2], [3] to address your concern. This offer is not exclusive to wikipedia. As IAC's agents constantly research the internet for abuse of rights, more DMCA notices could follow if communities do not promptly monitor and regulate themselves for self deletion [4]. HRA1924 (talk) 02:57, 19 September 2014 (UTC)
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