from the copyright-trolls-just-get-worse dept

A decade in the past, one of the ridiculous copyright trolling outfits was CEG TEK (which stood for “Copyright Enforcement Group… um… TEK”). It could shake down individuals like some other copyright troll, nevertheless it additionally had a “CTO” named Jon Nicolini, who CEG TEK would trot out as a questionable forensic expert in numerous trolling circumstances.

It seems that Nicolini has since set out on his personal, making a extra trendy type of a copyright trolling operation known as “Okularity.” We have talked not too long ago about how some people have, as a substitute of utilizing the courts, merely been utilizing social media takedowns by way of bogus copyright claims as a form of extortion, and that is develop into quite popular. Nonetheless, to this point, evidently this has principally been finished by stupid kids seeking to make a fast buck.

Nicolini and Okularity seem to have professionalized the extortion racket.

They usually might have picked on the flawed individual. In a not too long ago filed lawsuit by Enttech Media Group, the mum or dad firm of the well-known (and glorious) Paper Journal, lawyer Richard Tauler, lays out in nice element the kind of scam shakedown that Nicolini runs by way of Okularity:

Defendants are engaged in a scheme to deprive Plaintiff and related digital
media corporations of their belongings by unlawfully manipulating the take-down discover
provisions of the Digital Millennium Copyright Act (“DMCA”). Particularly,
Defendants have created software program for the specific function of disabling worthwhile
industrial accounts on social media platforms (on this case Instagram) in order that they’ll
then demand extortionate sums (on this case over one million {dollars}) from the account
holders to have the accounts restored.

The scheme operates within the shadows of the Copyright Act and the DMCA.
The DMCA gives a speedy process (referred to herein as a “DMCA Discover”) in order that
copyright homeowners can defend the widespread proliferation of their content material digitally. A
DMCA Discover requires a press release beneath penalty of perjury that the submitting social gathering
has an excellent religion perception that the content material recognized within the discover is infringing on a
copyright and that the submitting social gathering is both the copyright proprietor or a certified
agent of the copyright proprietor.

Most social media platforms, together with Instagram, have insurance policies whereby
accounts are disabled as soon as a specific amount of DMCA Notices have been submitted on
a specific account. As soon as an account reaches this threshold, Instagram won’t
reinstate the account till the underlying copyright “dispute” is resolved. Due to
the work related to the identification and investigation of copyright claims, as properly
the DMCA’s penalties for misstatements, it’s typically unlikely that homeowners of
authentic copyrights would abuse this method.

Nonetheless, given the huge monetary incentives offered to mercenary
litigants by the Copyright Act, would-be claimants have leveraged advances in
know-how to create economies of scale in pursuing claims. Particularly, Okularity has
developed software program that crawls the web for photos that infringe on allegedly
protected works. By way of its proprietary software program, Okularity routinely generates
and submits DMCA Notices to any social media platform, together with Instagram,
containing a picture in Okularity’s database. Okularity does this with none of the
investigation, warning, or authorized evaluation required by the DMCA, not to mention any demand
letter to the alleged infringer.

Quite, Okularity lies in wait whereas DMCA Notices accumulate to the purpose
the place Instagram disables the account. Solely then does Okularity start to barter
“settlement” for the alleged copyright claims. Okularity operates this fashion as a result of
Okularity is aware of that Instragam is the lifeblood of any digital media firm,
significantly one like Plaintiff Paper, which primarily is engaged within the enterprise of
reporting and commentary of in style tradition information and, as such, targets a younger
demographic that makes use of Instagram as its main supply of media consumption.
Okularity is aware of that if a enterprise like Paper has its Instagram account disabled, it has a
metaphorical gun to the top of the goal firm, because it additionally is aware of that Instagram
won’t reinstate the account with out a decision of the “dispute.” With this kind of
leverage, Okularity (and in flip the Clearinghouse Defendants) can demand sums that
they’d by no means be capable of demand with a straight face in any other case, placing homeowners of
even giant companies like Plaintiff in a life-or-death scenario.

Fairly fucking sketchy, no? Because the lawsuit notes, nevertheless, this seems to violate the phrases of the DMCA relating to what you want to do in submitting a discover — making this an attention-grabbing check to see whether or not or not the courts may lastly give Section 512(f) of the DMCA (the half that claims you may’t file bogus notices) some extra tooth. As we have famous, courts have been reluctant to care much about 512(f), which has arrange a really unbalanced system, during which tons of individuals and corporations frequently abuse DMCA notices. Often for censorship.

Right here it seems to be for extortion.

The specifics of the Paper Magazine / Okularity scenario element how this appears to be a complete enterprise constructed round extortion, with a bunch of unauthorized follow of legislation inbuilt as properly.

Okularity, which isn’t a legislation agency, purportedly “represents” the
“Clearinghouse Defendants” with respect to their Copyright “claims.” Okularity’s
“CEO” Jon Nicolini, created the software program Okularity deploys to file DMCA Notices, and
negotiates “settlements” with victims of the scheme as soon as they contact Okularity.
Nicolini, who isn’t an legal professional, implies that he’s an legal professional to victims by deciphering
the applying of the Copyright Act to photographs, participating in damages evaluation relating to
“claims” of his “shoppers,” and by negotiating decision of authorized claims on their behalf.

Defendant Backgrid actively solicits members of the general public, together with
individuals with whom it has no relationship and about whom it has no data, to
add to it pictures which Backgrid will then ostensibly “license” (for fee) others
to show and in any other case exploit. Backgrid then makes use of software program to routinely generate
copyright administration info (“CMI”) in order that it will possibly monitor at any time when a picture is
used. Since Backgrid conducts no due diligence of photos uploaded to its web site for
exploitation, and the corollary alternative for abuse, Backgrid itself has been sued by
precise copyright holders for copyright infringement.

Defendant Splash is equally a clearinghouse for pictures with a
checkered previous. In 2018, Splash was sued by soccer star David Beckham for its
“predatory and distasteful” techniques, which included demanding fee from Mr.
Beckham for posting an image of himself (taken by a paparazzo) on his very personal social
media account. Beckham v. Splash, Case 2:18-cv-01001-JTM-JCW (E.D. La.).
Counsel for David Beckham seen the $40,000 demand as an try to “extort.”

Okularity’s new enterprise mannequin pre-empts such lawsuits through the use of DMCA
Notices as a substitute of demand letters. Nonetheless, for the reason that DMCA Notices are routinely
generated and submitted with none legal professional supervision, Okularity doesn’t interact in
any evaluation previous to producing and submitting DMCA take-down notices because it ought to.

Quite, Nicolini operates the scheme with the only goal to disable
social media accounts. Not solely isn’t any demand letter wanted, the scheme makes it in order that
its victims come to Okularity, usually in a state of desperation, as soon as they notice their asset
is being held hostage. That is exactly what occurred within the immediate case.

It was solely after Okularity filed forty-eight (48) DMCA take-down notices
towards Paper that Instagram disabled Paper’s account. The identical day, July 8, Paper was
supplied with the contact info of Nicolini, who instantly started negotiating
the “claims.”

Nicoloni urged that Paper was dealing with $4.65 million in damages beneath
the Copyright Act. Nicolini curiously added that it was not his “first rodeo.” A
screenshot of the e-mail is beneath:

Sixteen minutes later Nicolini responded, this time with obvious authority
to speak on behalf of his “shoppers” beneath Federal Rule of Proof 408 to settle
for $1.01 million:

Nonetheless, Nicolini isn’t an legal professional and is due to this fact unable to claim authorized
claims on behalf of his “shoppers,” and likewise can’t negotiate and enter into
agreements on their behalf within the context of a copyright lawsuit.

For sure, this supply was unable to be accepted. In additional effort to
attain a decision, the undersigned requested Mr. Nicolini present the DMCA notices
in order that Plaintiff might assess the claims at subject. Nicoloni has refused to do within the
absence of a “non-disclosure settlement.” When requested why a “non-disclosure
settlement” can be wanted, Nicolini had no reply

That is… fairly fucking sketchy in many various methods. The lawsuit argues that the defendants breached 512(f)… however then additionally throw in a RICO declare. And that at all times appears iffy. As everyone knows, the Popehat rule of “it’s not RICO, dammit” tends to use. And I would nonetheless lean in direction of it not making use of right here, however I’ve to confess that that is nearer to an precise civil RICO declare than you usually would see. You do have a bunch of people / corporations, working collectively in a sample to shake down companies. I nonetheless do not anticipate that declare to final, however this positive does appear like a standard shakedown scheme, utilizing DMCA takedowns for leverage over social media accounts.

Filed Underneath: 512f, automatic takedowns, copyright, copyright troll, dmca, dmca 512, exotrition, jon nicolini, rico, shakedowns, takedowns
Corporations: ceg tek, okularity, paper magazine

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