Ashley Madison faces copyright suit after failed attempt to cover up scandal

Adultery-promoting dating website Ashley Madison has been all over the news after a group of hackers disclosed the personal information of all of the website's nearly 40 million users. The scandal, it would appear, is far from over, as the company is now being attacked not only for its deceitful data practices, but also for its extraneous and abusive use of copyright notices.

As part of its strategy to prevent user data from being leaked, Ashley Madison has sent out a swarm of DMCA takedown notices to strip unwanted information off of the Internet. Its strategy works like this:

Say a popular website like WordPress or Twitter hosts some images your organization doesn't want floating around the Internet, like, say, a series of screenshot outing your should be anonymous user base. These images aren't copyrighted, but you send a takedown notice anyway. Most of the time, this results in the website hosting the content taking it down, at least temporarily, which grants it what's called "safe harbor." In other words, it protects the company hosting the content from being held responsible for what's posted by its readers.

These claims aren't always permanent. If someone saw that content they posted disappeared, they could always contact the web-host in question and ask them to restore it, which, if the content doesn't actually violate any copyright claims, will happen. The catch here, is that restoring pulled content usually takes at least 10 days, which is an eternity when it comes to the Internet's attention span. In other words, by using fake copyright claims, Ashley Madison is censoring coverage of their scandal and trying to kill it before it gets any more attention.

Ultimately, it's not the most effective tactic, since blocking information from reaching the internet is like playing a game of exponential whack-a-mole, but the fact that companies are willing to go to those lengths to perform their own form of censorship is more than a little bit troubling.

At the very least though, they shouldn't be able to get away with it scot-free. Hidden within the fine print of safe harbor and DMCA takedown rules is a little used and known provision, called 17 USC s. 512(f) that provides a set of sanctions aimed at punishing those who deliberately misrepresent copyright infringement claims. Though rarely used, it could be used as a means of punishing Ashley Madison for its actions, and as a deterrent for future false claims.

When asked about the takedowns filed by the cyber-affair company against several tweets, a lawyer for the Electronic Frontier Foundation, says that "not only is it extremely unlikely that there is any copyright, the chances of those tweets then not being considered fair use seems small." While courts haven't been particularly interested in applying copyright misrepresentation, this could change after a recent case that has the EFF seeking lawyers' fees and damages in behalf of a years-long DMCA case over a Youtube video of a baby dancing to a Prince song.

Ashley Madison being punished for this behavior would still require someone to take a leap and sue them, though given the site's recent unpopularity, it might not be too hard to find someone willing to do just that.

No matter where you are with your company, it's important to contact a skilled business attorney as soon as possible. A lawyer can help protect your rights in case of litigation, and get you just compensation.

Categorised in: Business Law, Intellectual Property Law

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