Makers Of Firefly 'Fan-game' Abuse DMCA To Try To Silence Critic
from the really guys? dept
DarkCryo is a somewhat controversial operation that has been trying for a while to build an “unofficial” multiplayer online game based on the Joss Whedon TV-show/movie/cult classic Firefly. As we’ve discussed in the past (directly about Firefly, even) we think that this kind of fan creativity should be encouraged, as it’s these kinds of fans that have kept the brands and communities together while the big companies let them wither. Of course, Fox Entertainment wasn’t too happy and shut it down. The recent controversy came over attempts to resurrect it, with slightly vague suggestions that they had Fox’s permission. As people dug into the story, they realized it was something significantly less than permission.
Among the leading critics of DarkCryo is the site FuriousNads by Christopher Frankonis. In particular, Frankonis quite rightly called out DarkCryo for running an IndieGoGo crowdfunding campaign that pretty clearly violated IndieGoGo terms and (much more importantly) securities law by offering a form of an “investment” with “returns” at certain levels. That’s a big no-no, even though it would be legalized in the US if not for heel-dragging bureaucrats.
While I think that these kinds of games should be allowed, Frankonis’ criticism is completely on target. In response, it appears that DarkCryo — a company that is really skirting a pretty fine line concerning copyright — decided to abuse the DMCA and file a takedown notice on FuriousNads posting of a DarkCryo logo image. For the record, this appears to be the image that FuriousNads had on its site:
Though, looking at Google cache, it looks like they also used modified version of that image, superimposing other images on top of it (which, likely, would make the use even more protected). This is clearly an abuse of the DMCA. Such a usage of a logo is about as clear a case of fair use as you could imagine. Frankonis was clearly reporting on DarkCryo, and using the logo in a way that it would be hard to see as anything but fair use.
The site has since replaced all images of the graphic with the following instead:
For what it’s worth, Frankonis’ hosting firm overstates its reasons for taking down the image:
“We’ve received a DMCA complaint regarding content hosted in your account,” came the late-night email from Acorn Host. “As you are probably aware, web hosts do not have much leeway in responding to complaints like this. We do not get to judge fair use or anything of that sort; we are required to remove anything someone submits a claim about, until which time as you submit a counter-complaint.”
That’s not quite true. Acorn absolutely can analyze the situation and could determine that it believes with very high probability that the use would be called “fair use” by a court and then leave it up. The issue is that leaving it up just removes the easy safe harbors that would get Acorn out of any lawsuit. So there are certainly good reasons for it to do what it did, but they are not “required” to do so. They just have to do so if they want to keep the safe harbor protections. That said, we’ve heard of so many stories of hosting firms completely shutting down entire accounts based on a single DMCA notice that Acorn’s position is hardly that egregious. The response is better than many others.
It’s unclear if Frankonis intends to file a counternotice, as he suggests he’s content with his replacement graphic instead. Given the subject matter, he’s probably right. Still, this is yet another case of people abusing copyright law with the clear intent of silencing criticism. That it’s coming from an operation that is trying to rely (heavily) on exceptions to copyright law for its own project just makes it doubly ridiculous.