The Fake ID DMCA Debacle

Rachel Hyman works in a bar in New York City. Part of her job involves confiscating fake IDs from underage patrons that are attempting to drink illegally.

Recently, Hyman took one of those fake IDs and posted it to her blog. When she discovered that the fake ID was in the person’s real name, she redacted the last name so the Google Cache would not unnecessarily hurt the person’s reputation.

However, tempers had already flared up. Hyman had already been the subject of several angry comments and a few prank subscriptions.

But it was on Monday morning that Hyman got her greatest surprise, the creator of the fake ID filed a DMCA notice with her blog host, Blogger, and got the image removed.

Almost instantly, what started out as a stupid real life mistake by a college student became an Internet-wide controversy. Now it seems that the fake ID “artist” will not be forgotten for a long time to come.

A Quick Dismissal

In her post about the DMCA notice, Hyman is quick to dismiss the notice as invalid. According to her, she spoke with a couple of her friends, who were attorneys, and quickly determined the following:

A fake ID, besides being illegal to create in the United States, is a derivative work of the United States Government, and is not an original creative work of authorship.

However, the statement has at least one flaw in it, namely that the ID is not a derivative work of the U.S. Government, but of the issuing state. That is a big difference in that works by the U.S. Government are automatically entered into the public domain whereas state government creations can enjoy copyright protection.

Still, the overall sentiment is fairly accurate. A fake ID, taken as a whole, is indeed a derivative work and would not be protected under copyright law. The issuing state, not the person who created the ID, would seem to be the one to file a DMCA notice in these situations as they own the copyright on the original work.

It seems, on the surface, to be an open and shut case of a false DMCA notice being used to silence criticism. But a closer look at the original notice shows that things are not as cut and dry as they seem.

A False DMCA Notice… With Some Merit

The original DMCA notice, under the heading “Identification of Infringed Material”, contains no mention of the fake ID itself, but rather of the following (notes are my own):

The image referenced above (assumedly the fake ID) contains a scanned image of a picture and a signature that I created and own the rights to

It appears, based upon this letter, that the person filing the DMCA notice is not complaining about the fake ID itself, but rather, the image and signature contained within it. If the person did indeed take the photo and draw the signature, there is a good chance that he or she owns the copyright in one or both of them.

Copyright law seems to back this up when it says the following in Title 17 – Chapter 1 § 103(b) when it says the following:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

In short, when creating a derivative work, such as a fake ID, one retains the copyright to the material that they contributed as long as it is distinguished from the preexisting material.

The photo, without a doubt, is protected under copyright law and the signature, depending on how original it is, may be as well. In short, by posting the fake ID to her site, Hyman was indeed posting copyrighted material without permission.

However, the story doesn’t end there. There are still other legal issues that need to be resolved.

Fair Use and Fake IDs

The fact that Hyman, most likely, posted copyrighted material without the owner’s permission does not necessarily mean that it was copyright infringement. Fair use is designed, by its very nature, designed to protect people who wish to use such works in a limited set of circumstances.

The four factors considered when determining if a use is fair or not are as follows:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. the effect of the use upon the potential market for or value of the copyrighted work

With that in mind, it seems that a very strong argument for fair use can be made.

1. The use, by all accounts, was non-commercial and was in order to make commentary about the incident.
2. The works in question were a very small photograph of someone’s face and a scanned signature. Neither very creative in nature nor was this the first “publication” of the work as the creator distributed the work previously as a fake ID.
3. The sentiment of fair use is “take only what is necessary”. If the whole image is needed, then courts have found that such usage can be considered fair.
4. Finally, since there was no market or potential value for the work. There is no potential harm that the use can bring to it.

When it is all said and done, it is likely that the DMCA notice is indeed invalid not because the material wasn’t protected by copyright, but because the use of it was fair.

However, that is a determination that would have to be left up to a judge and/or jury and would likely hinge on many unknowns at this time, including the article written around it, Hyman’s intent in posting the ID and more.

Still, the argument, on the surface at least, looks strong.

Conclusions

The bottom line in all of this is that the copyright issues are much more complex and involved than Hyman originally indicated. It, clearly is not as simple as dismissing the fake ID as a derivative work and walking away.

However, the real lesson here is to first be careful with everything not yours that you post without permission. One needs to ben constantly thinking about potential copyright issues that might arise.

Second, it’s important to remember that the DMCA is a great way to deal with serious copyright infringement. However, it is a horrible way to bury criticism or embarrassing information. As Michael Crook can testify, that only serves to draw more attention and create more problems.

Finally though is the obvious lesson: Don’t make fake IDs. It is stupid, it is illegal and it can cause a variety of problems down the road. Don’t do it and definitely don’t include your real name on it if you do. It can come back to bite you in so many ways.

The good news is that it appears that the case has a happy ending. Not only has Hyman filed a counter-notice with Google, as she was right to do, but she and the subject of the ID have worked out an arrangement where the ID can be displayed on the site sans any personal information.

In the end, I am not sympathetic to the creator of the fake ID. They made a stupid decision, they did something illegal and they are wanting to bury their mistakes by applying copyright law when it likely doesn’t apply.

This was clearly a situation where cooler heads could have prevailed and no legal entanglements needed to be involved. Sometimes all of the legal complexities in the universe by just asking someone nicely to do something.

The only one being unreasonable, when it’s all said and done, is the person filing the DMCA notice.