The company is shotgunning DMCA notices against journalists and others who reproduce even the tiniest fraction of the dump of users who signed up to find partners with whom to cheat on their spouses — included in the dump are thousands of people who paid $15 to have their data permanently deleted from the service.
Factual data — even sensitive data like this — is not covered by copyright. It’s straight-up fraud — perjury, actually — to use Digital Millennium Copyright Act takedown notices to take down material like this.
Hard cases make bad law. The Ashley Madison dump has the power to do a lot of harm, and I’m very sympathetic to the people who would like to see it suppressed. Even if you stipulate that romantic infidelity is wrong (though Dan Savage makes an interesting case in favor of it in some circumstances), there’s no guarantee that the people in the database ever signed up, since Ashley Madison didn’t validate emails.
The fact that we deplore publication of the Ashley Madison leaks doesn’t mean that we should use it as the excuse to expand the already overused, already abuse-prone, already overbroad DMCA system for extrajudicial censorship. It’s bad enough that it can be deployed in the service of something as nebulous and hard to adjudicate as copyright infringement — if it also covers “any data that’s just icky,” it becomes so broad as to be limitless.
Almost as bad as Ashley Madison’s copyfraud is the foolish complicity of giant Internet companies. For example, Twitter honored a takedown request against a tweet by Vice’s Joseph Cox that contained a partial floorplan of the Ashley Madison offices. Sometimes it’s hard to tell if something infringes copyright: in this case, it’s not hard at all.
According to the takedown email, the DMCA notice was filed by Jamie Rosenblatt, the director of business development for Avid Life Media.
The motivation behind flagging both tweets was that “Avid owns all intellectual property in the data, which has been stolen from our data centre, and disclosed in this unauthorized and unlawful manner.” This statement presumably confirms the authenticity of the data posted online.
It’s not the first time a company has tried to use copyright law in an attempt to prevent reporting on leaked information. Sony tried something similar when it was hacked back in 2014, and Ashley Madison also employed DMCA notices in July to take down snippets of information revealed before the full data dump.
DMCA notices are intended to stop the spread of intellectual property and copyrighted material—not to claim ownership over the generic column titles of an accounting spreadsheet, or to stop journalists from covering a significant event.
Ashley Madison Sent Me a DMCA Request for Tweeting 2 Cells of a Spreadsheet [Joseph Cox/Motherboard]