As leaked data from extramarital affair web site Ashley Madison continues to bubble up like toxic waste, the company is firing off copyright takedown notices to stop file sharing and social networking sites like Twitter from propagating customer and internal information.
The “desperate move” is “the last refuge of people who are embarrassed about something on the Internet,” says copyright lawyer Ren Bucholz of Lenczner Slaght Royce Smith Griffin LLP. “They’re trying to use copyright to try and shut down web sites and stop the flow of information they don’t want to be available, but which really, on it’s face, is not copyrighted.
In fact there is no copyright in “basic facts” such as company and personal information, says Noel Courage, a partner with Bereskin & Parr LLP. There can be, however, some copyright in how the information is “organized and laid out” by Ashley Madison.
The use of takedown notices has not historically had much success and comes with some perils as well, especially when applied in the United States.
Issuing takedown notices to reporters and news organizations is “overzealous,” says May Cheng, partner with Fasken Martineau DuMoulin LLP.
“There is an exception to copyright infringement for ‘news reporting’ under the fair dealing exceptions in Canada, for example,” she says.
Bucholz recalls a 2004 American case he was involved in in which internal e-mails from the archive of an electronic voting machine company were leaked during an election year and posted online. The e-mails expressed concern about security issues with the voting machines. The company, Diebold, used the U.S. Digital Millennium Copyright Act to try and get the material taken offline.
“There are provisions in that legislation that allow a party to challenge the notice and recover punitive costs if there has been an abuse of the takedown procedures,” he says.
The case — OPG v. Diebold — was a similar situation where there was a security breach and the party whose material was put online was casting about to find any legal tool they could to try and stop the information from getting out without a lot of attention paid to whether the material was copyrighted.
A U.S. district judge in California ruled the plaintiffs’ publishing of the e-mails was clearly fair use “because there was no commercial harm and no diminishment of value of the works” in republishing them. Diebold was found to have misrepresented its copyright control, putting it in violation of the DMCA, leaving it liable for court costs and damages.
“It’s very difficult to imagine how a collection of people’s addresses and names could reach that level of originality to even attract copyright protection in the first place,” says.
The problem is that even under the U.S. copyright regime, considered to be the most robust, Ashley Madison would have to establish a good faith belief the things they are complaining about are actually copyrighted.
“The notices must state that the complaint is being made under penalty of perjury and I would be very nervous if I were a lawyer for a company that was making that kind of statement under these circumstances,” adds Bucholz.
There are Images in that database that may be copyrighted once they are formatted and watermarked by the Ashley Madison System.
Section 342.1 of the criminal code says that anyone that uses, possesses, traffics in or permits the use of a password for accessing a computer (or its components including data) is guilty of an indictable offence. That would make pretty much anyone in Canada that has seeded or accessed the data and shared it guilty. Even accessing the torrent involves seeding data back in even if you haven't completed the download.
The downloads also include source code and intellectual property that is proprietary.
Millions in the database may be there maliciously. Exposing them to permanent long term harm and defamation.
Once the data is hosted by any web site. Hasn't it then taken on the responsibility and liability for its accuracy, and retention requirements of Pii.