GW's Behavior Already Backfiring

[Defenestratus]

You don't have to be an IP lawyer to figure this one out. The law is relatively cut and dry on this one, and a quick read of Title II of the DMCA (which isn't all that long, really) shows that GW's legal team pretty much followed their end of it to the letter.

Natfka is a journalist and afforded certain rights thereof.

Go read someone who knows what he's talking about on Dakka, Sean_Obrien:

No, not an image - the entire work. The leaked images might be a violation of an internal employment contract between the employee who manages to get the pre-release image and the company who owns the image...but that is not a violation on its own. The issue with it being a specific crime under Section 506 only if it is 1) Software/AV Works or 2) A Movie - and then only if it is a complete release, not a limited excerpt for purposes of review, new or criticism. That particular section is very limited in scope and relates to the criminal activity of releasing bootlegged videos (from prescreenings) and late Beta test software or other AV work:

[url]http://www.copyright.gov/title17/92chap5.html#506[/url]

(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture —

(i) has been made available for viewing in a motion picture exhibition facility; and

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

There is no inclusion for literary works - which is what books and magazines fall under. Regarding the Eldar Scrolls issue...lots of huffery goes into DMCA requests, and lots of sites will roll over on them as they either don't know the law or don't want to fight the fight. Just because something is taken down and people broadly comply - it doesn't actually mean that there are any grounds to do so.

See above, and further below...

In journalism, "journalists" receive broad protections under the law. If a journalist uses a leaked image they are not required to abide by laws and contracts which a company might implement in order to keep things confidential (See Johns-Byrne Co. v. TechnoBuffalo). It is quite common to have various prerelease leaks of all manner of products - from cars, to phones and even software and videos. These are all protected aspects of journalistic reporting. If they were posting a complete video or copy of software...or even somehow posting a 3D scan of a model - there might be some aspect with which GW could grasp at. However, the early posting of images from a magazine which is largely a product catalog does not amount to damaging to the product that GW is attempting to sell and is protected.

The illegal use by GW goes to this point here...quoted from their DMCA take-down request:

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]

I swear, under penalty of perjury, that the information in the notification is accurate and 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]


Because of the nature of the DMCA, attorneys and companies who use it are expected to make a sworn statement that what they are targeting is in fact illegal - they also must sign the document under penalty of perjury that they have done their due diligence in ensuring that the law is actually being broken. The above quoted statutes (both the FAIR Act and the refutement of the pre-release issue) should make it clear that Nafka is a news site performing a news function - which is legal. Because it is authorized by law explicitly and does not infringe on any exclusive rights of GW...it would in fact be an illegal use of the DMCA. Either GW's legal team is not doing their due diligence in research or they are but are perjuring themselves - both of which are illegal uses.

Basically, if it was a music track, a computer program or a movie, making it available in portions before the release date would be subject to DMCA takedown. A printed image excerpt from a magazine/catalog publication is none of those things and therefore GW has made use of DMCA takedown illegally.

[OrksOrksOrks]

You keep posting that quote up, but it doesn't actually pertain to this issue.

And Natfka being a journalist and being covered under those rules is highly suspect.

[DarkLink]

There's also this, from another IP lawyer: [URL]http://apocalypse40k.blogspot.com/2013/05/bols-faeit212-takedown-attorneys.html[/URL]

So what is the legal fallout from the Faeit212 take-down?

A friend of mine is both an accomplished 40K player and an attorney with IP experience. We have been chatting about all of this as I am an attorney (though I am smart enough not to practice!) and he sent me this email:

As you're aware (I've read through the posts on your blog), they're seriously over-reaching in most of these takedown requests.

"Fair use" allows for news reportage and commentary, and nearly everything that I've seen would fall squarely into those areas.

Even Natfka's notice *claimed* that he was publishing photos taken of a WD that had not been released yet. But the problem with that is that's not completely true -- the photos HAD been released, albeit in Germany.

It's not like Natfka snuck into GW's offices and took some spy-camera photos of the WD; some 3rd party had the magazine and took pictures. That's a lapse on GW's part, not on the blogger/journalist/reporter that uses the images.

I don't know what you posted from IA12, but -- again -- that book was released in the UK before Adepticon, and was available for purchase there. If you put up limited images for commentary, you're within the ambit of Fair Use.

I really want GW to step too far over the line and get slapped. Copyright actions are one of the few areas in American jurisprudence where a successful defense can shift attorney fees. They have it coming!


His feedback is pretty much right on and while GW is probably overstepping their bounds, avoiding problems with them is pretty easy. You won't find me posting photos of their books and White Dwarfs anymore unless it is secondary to commentary about those items.

You don't have to be an IP lawyer to figure this one out.

Hmmm.... apparently you do, because the actual IP lawyers that Defenstratus and I all seem to say pretty much what I was speculating, that Nafka was protected under fair use, and that GW is overstepping their legal bounds, despite what all the other speculators (and trolls like Orks) were saying. Now, maybe other lawyers will step in and say "but...". Either way, my point that basically no one here is qualified to speak on this issue and we should all stop being a bunch of ignorant, judgmental finger-pointers is validated.

[NockerGeek]

Hmmm.... apparently you do, because the actual IP lawyers that Defenstratus and I all seem to say pretty much what I was speculating, that Nafka was protected under fair use, and that GW is overstepping their legal bounds, despite what all the other speculators (and trolls like Orks) were saying. Now, maybe other lawyers will step in and say "but...". Either way, my point that basically no one here is qualified to speak on this issue and we should all stop being a bunch of ignorant, judgmental finger-pointers is validated.

I hope you're including yourself in that group.

In seriousness, though, it does seem that even lawyers are split on the issue. I won't just repost what I posted in the Rise and Fall thread, but if it does turn out that GW overreached, then I hope they do get slapped down for doing so. Lone bloggers fall into a big legal grey area, though, so who knows? And, as I've said several times already, even if GW didn't overreach, they still didn't really "win" this fight.

[Wolfshade]

I don't know how the hobby will possibly survive without blogs.

I know, GW never sold a model until Sir Berners-Lee invented the interweb.

[Power Klawz]

I know, GW never sold a model until Sir Berners-Lee invented the interweb.

It was Al Gore, it was initially conceived as a series of tubes...

[Wolfshade]

It was Al Gore, it was initially conceived as a series of tubes...

That is like saying that Steve Jobs invented the computer...

[Power Klawz]

That is like saying that Steve Jobs invented the computer...

No its much sillier than that!

[DarkLink]

Not if you remember that computers are like televisions, with little people inside them who do what you tell them to when you tap them on the head while typing.

[Mr Mystery]

Who then attach the message to specially trained micro hamsters, who run down the tubes to their destination.

Hence why a slow service is known as a 'Hamster Jam'