orangenius
Copyright Online Piracy

Ashley Madison is Cheating with the DMCA

Controversial cheating website AshleyMadison.com dealt quite the blow to its 36 million users last week when they reported that the website had been hacked. The notorious site, which helps married men and women connect and meet for extramarital affairs, was the target of a major hack, and this week the hackers dumped user data stolen from the site, revealing personal email addresses linked to credit card information. They also released data and internal emails from the company’s CEO, Noel Biderman, who manages Ashley Madison’s parent company, Avid Life Media.

Tech developers quickly rushed to the scene to capitalize on this massive and highly sensitive data breach by creating programs that would allow users and their suspicious spouses alike to search for the breached information. Websites like Trustify and CheckAshleyMadison.com allow users to simply enter an email address and immediately discover whether their information got caught in the fallout of Ashley Madison’s hack.

The Ashley Madison hack severely threatens the company’s business, and executives are scrambling to get the situation under control: They’re not just dealing with the backlash from angry users, but facing some pretty serious allegations regarding their overall business model. So what’s a company based on dishonesty and shady dealings to do? It’s business as usual for Ashley Madison.

Avid Life Media has begun issuing takedown notices to websites like Trustify and Check Ashley Madison under the Digital Millenium Copyright Act, alleging that the company “owns all intellectual property in the data, which has been stolen from our data center, and disclosed in this unauthorized and unlawful manner.” Many of the companies helping users track their hacked data have been quickly shuttered in order to contravene DMCA penalties. But Trustify has refused, claiming that Ashley Madison’s use of the DMCA to keep companies like theirs from operating is a completely incorrect application of a law which was designed to protect copyright owners, not censor data.

Couple with laptop in bed. Man at computer, woman upset and angry looking at man. Young modern interracial couple in bed. Asian woman, Caucasian man. Funny image.

In the case of the Ashley Madison hack, the answer is unequivocally clear: No matter how detrimental to their business, Ashley Madison cannot issue takedown notices under the DMCA. Trustify – and other websites like it – have no reason to feel threatened to shut down, and should continue operating without fear of a backlash.

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act, or the DMCA, criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. In addition, the DMCA heightens the penalties for copyright infringement on the Internet, but does provide a safe harbor for internet service providers within the Online Copyright Limitation Liability Act (OCILLA). The Act exempts internet service providers from copyright infringement liability in an effort to strike the balance between the competing interests of copyright owners and digital users. Under OCILLA, if an internet service provider is served a takedown notice, they are obliged to comply, but will not be subject to copyright infringement liability if they meet certain exceptions.

Under these conditions, many companies that were operating as data revealers for the Ashley Madison hack removed their websites in order to avoid any penalties under DMCA.

But since it became law in 1998, the DMCA has been abused by anyone who wants content off the internet. All kinds of parties, from governments to companies trying to save face, have tried using DMCA takedown notices to coerce people into taking things off the internet. Those served a takedown notice usually comply out of fear of being sued. For many small companies, it’s better to be safe than sorry.

As a rule of thumb, being served a takedown notice means you should usually remove the infringing material to avoid further issues. But Ashley Madison’s use of the DMCA in order to prevent websites from revealing the breached data can only survive if the information it’s trying to protect is copyrightable – and we know from basic copyright principles that it’s not.

Why Ashley Madison’s Data isn’t Copyrightable

As we’ve outlined in our e-book on copyright for artists, understanding what can’t be copyrighted is just as important as understanding what can be. Only creative works can be copyrighted, and only if they meet certain requirements. In order for a work to be copyrightable, it must:

  • Be an original work of authorship
  • Fixed in a tangible medium
  • With a minimal degree of creativity.

Additionally, there are certain things that can’t be copyrighted – these include ideas, titles, names, and slogans, and facts. No matter how eloquently a fact is presented, it will not rise to the level of originality that is required for copyright protection. Weather forecasts, sport stats or posting an event on Facebook are not copyrightable.

16 aW1nXzY3MDIuanBnBased on these guidelines, it’s next to impossible to prove that Ashley Madison’s breached data should be copyrighted. Data inherently lacks creativity – that the data reveals names, email addresses, phone numbers, and credit card information would render it devoid of any opportunities for protection under copyright principles, since the law specifically states that names and facts won’t be protected. Instead, Ashley Madison is abusing the DMCA in order to have sensitive information removed from the internet – but doing so amounts to censorship, which is completely unprotected by copyright principles and could even violate the first amendment rights of the data revealing website owners.

Even if the Data was Copyrighted, It Would Likely be Considered Fair Use

Even if Ashley Madison or its parent company could convince a judge that the data its users uploaded to their servers is copyrightable, websites like Trustify and CheckAshleyMadison.com could likely argue that their posting of data constitutes fair use. The fair use doctrine allows one to use copyrighted work for specific purposes. The use of a copyrighted work constitutes fair use based upon:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

It could certainly be argued that websites like CheckAshleyMadison.com and Trustify are engaging in criticism or commentary, which is protected by the fair use doctrine. But that assumes that the data on these websites is copyrightable in the first place, which it likely won’t be.

If you’re running a website, reporting on the Ashley Madison events, or even merely tweeting about it, you should be prepared to be served a takedown notice by Ashley Madison if your work or commentary is highly visible. But there’s absolutely no reason why you should comply. When it comes to takedown notices, it’s important to ask yourself whether the offending information is copyrightable, and whether your use of the copyrighted materials might constitute fair use. While it’s sometimes better to be safe than sorry, it’s also important to hold DMCA invokers to high standards.

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]