Board Thread:Wikia Discussion/@comment-22224-20190129194843/@comment-31911856-20190130052839

TimmyQuivy wrote: Meatwadsan wrote: Firstly, this appears to violate Wikia's own policies regarding DMCA, which gives users three violations before action is taken against their account. This is not taking action against an individual user account, but acting upon a valid DMCA takedown notice for content on a community.

Secondly, nearly all Fandom/Wikia images are protected under 17 U.S. Code § 107 and court precedent. Fair use is something that users are allowed to assert in their User-Generated Content but if we receive a DMCA takedown notice we're required to act on it.

Thirdly, when a Safe Harbor notifies its users of pending DMCA action, they notify or link their own Safe Harbor policies regarding copyrighted material and recourse. All relevant information is included on this help page.

Lastly, this DMCA notice fails to appear in the Lumen Database. Fandom traditionally does not file the details into the Lumen Database (via Chilling Effects) until we have completed action on the notice. We have begun the process early to assuage any concerns regarding that you have: https://lumendatabase.org/notices/17986215# Thank you for your reply, Timmy.

On the first point, I was actually referring to the stated repercussions for users reuploading images, which seemed to suggest immediate banning rather than Wikia's three strikes policy for repeat infringers.

On the second, I wholly understand Wikia's position on content removal to protect its Safe Harbor liability. However, there are many other factors governing the definition of fair use than simply user-generated content. That is why I would suggest that the users and/or admins who receive the notice file a counter-notice, as they would almost certainly win on legal grounds, assuming DMM then hires a US-based law firm for an international suit to prove dubious damages.

On the last note, I do find it quite odd that the CEO of DMM would circumvent their retained law firm to personally file a DMCA notice. This is especially in light of all of their previous notices being filed through their law firm. This holds true for both Kadokawa and DMM, and Kadokawa is in fact the actual rights holder, not DMM. I do not see them listed under the Principal, or clearly stated in the notice itself. Legally speaking, this automatically invalidates the DMCA notice, as they must explicitly state the relationship of the parties involved when acting on behalf of the Principal.

Does Wikia's DMCA process include a research and communication phase to assess the validity of DMCA claims? For example, Google uses a bot to check for the presence of all legally required information within the notice. Then an employee manually assesses fair use criteria, namely purpose and character of use. Notices that fail their criteria are disregarded. Upwards of 40% of DMCA notices served to Google are fraudulent, which caused Google to institute the aforementioned process.

And FYI to those involved, Chilling Effects no longer exists and is now Lumen.