I wanted this blog post to be funny. Not every post about law can or should be entertaining to read, but this post owes its existence to a curious, chortle-inducing Twitterstorm about an aspect of Scots land law that took place on 11 February 2015. I used a website called www.storify.com to digest those events. That “story” – that is to say, the collection of Tweets sent by Twitter users (including me) and links to websites, augmented with some commentary by me – has accrued approximately 20,000 views online. That is quite a lot of traffic for content created by an academic lawyer about a quirky aspect of his own relatively small jurisdiction. It certainly caught the imagination.
Entertaining and informative is certainly something to aspire to in many academic circumstances. I am afraid this post is going to eschew the entertaining, for reasons that will become clear. As for the original story, despite its comedic undercurrent, it seems some people did not enjoy it. In fact, it now transpires that someone does not want the story to be at the web address it has been publicly available at any longer.
I can only speculate as to why this is, but I have a sneaking suspicion it is something to do with the fact that the story effortlessly, comprehensively and comprehensibly deconstructs the claims one business in particular made about the sale of so-called “souvenir plots” in Scotland, with a sprinkling of humour in the process. The business model in question relates to the sale of small parcels of land in Scotland. Such souvenir plots cannot be registered in the Land Register of Scotland, owing to a specific provision in Scottish land registration legislation. No registration means no landownership.
How do I know someone does not want the post to be at its existing URL? It might be something to do with an email I received from the company behind the Storify site, which informed me that it had received something called a DMCA Notice – also known as a Takedown Notice – relating to the story I published with them. At that stage I was not sure who had served the DMCA Notice: heck, it was the first time I had met the acronym “DMCA”. A crash course in American intellectual property law followed, largely via internet research. (Incidentally, DMCA stems from US copyright law, and stands for “Digital Millennium Copyright Act”.)
A quick, oversimplified lesson in IP law
Intellectual property rights come in various non-physical shapes and sizes. We will meet two such IP rights in this blog post: copyright and trade mark (or, in the US spelling, trademark).
Copyright is the right that the creator of a work (perhaps a book, a tune or an image) has by dint of creating that work. No registration is needed (in the UK).
Registered trade marks are slightly different, relating as they do to brand-building and requiring registration in a public register to make them enforceable. A trade mark could be a logo or a slogan. (In some circumstances, an action can be brought for “passing off” even where no trade mark has been registered. That is not relevant to this post.)
We will return to the distinction between copyright and trade mark later, but for present purposes it can be noted that the person who holds either of these rights can take steps when someone else infringes them, perhaps by seeking to use a creative work without the permission of the originator of it or by piggy-backing on the brand of another business.
The implications of this DMCA Notice
It can therefore be seen that the chosen mechanism to get my story purged was intellectual property law. Although I might be thought of as more of a traditional property law specialist, I am well aware that IP law is important and serves legitimate policy goals. As such, I did my best to comply with the email that explained a DMCA Notice had been served. This detailed what I needed to do to reactivate my story: quite understandably, the people behind Storify also care about IP law and they did not wish to take any chances after receipt of a DMCA Notice. The first thing that happened was to put the story into abeyance (i.e. it was converted into a non-public “draft” story). I was told I had ten days to serve a Counter Notice, without which the story would be deleted. Guidance and certain forms of words were provided to me to allow me to draft that Counter Notice, which I duly drafted and sent by email.
That leads on to why this blog post is not going to be funny. Even where the possibility of litigation in a foreign jurisdiction seems remote, discovering your Counter Notice must contain declarations made under penalty of felony focus even a lawyer’s mind (or perhaps especially a lawyer’s mind). The email I received indicated and my own research confirmed that, as a non-US citizen, the jurisdiction any litigation would take place in would be the place where the website was based: in this case, California.
I have never been to California. I have no particular plans to do so in these circumstances. Accordingly, this blog post is going to do absolutely nothing to encourage or pre-empt any further legal manoeuvring that involves those who seek to wipe the story or related content from the web or waste more of my time in the process of doing that. What this blog post is designed to do is educate readers about: a) US intellectual property law; b) how law and the internet (and particularly jurisdiction) can interact; and c) the steps the company Highland Titles Limited has taken to suppress legitimate commentary on their business model.
Ah, yes. It was Highland Titles who were behind the DMCA Notice, using a company called DMCA.com to serve it. I suspect many of you would have suspected that anyway. I only had circumstantial evidence of that to start with, as I had not seen the DMCA Notice sent to Storify. My suspicions were all but confirmed when I heard a similar DMCA Notice was sent to Automattic, the company behind WordPress, in relation to this loveandgarbage.wordpress.com post.
That notice was rebuffed by Automattic without the need for a Counter Notice. The “fair use” provisions of Section 107 of the relevant US copyright legislation were deployed to politely but firmly tell the person serving that DMCA Notice to go away. Storify deployed a slightly more cautious approach to the DMCA Notice relating to my story, which I am not going to criticise here. I simply raise the issue of that separate notice to highlight: 1) a pattern of behaviour where posts critical of Highland Titles have been targeted with whatever legal apparatus might even vaguely suit that task; and 2) that I was heartened I had more than a stateable case that my content was not breaching US copyright law.
(People who have followed this saga closely may recall that my story was copied then subtly subverted by someone who engaged in a (rather ineffective) first wave response to the #HighlandTitlesDay Twitterstorm, as detailed on my blog here. Further, after Dr. Jill Robbie (of the University of Glasgow) and I published an article in the Edinburgh Law Review in September 2015 on this topic, very similar (albeit skewed) wording appeared in literature sympathetic to Highland Titles’ interpretation of Scots law. With that backdrop, there is a certain irony in Highland Titles claiming the author of loveandgarbage or I have breached intellectual property law.)
What happened next can be gleaned from this chain of Tweets. In brief, I eventually steered the Counter Notice to the relevant legal contact and the story was duly restored, albeit I was also asked to amend my Counter Notice to more closely track the wording prescribed by US legislation and keep Storify’s ISP happy. At that stage I asked explicitly for sight of the DMCA Notice so I could make the statement that was asked of me in good faith. (This is when I discovered beyond doubt Highland Titles was behind the DMCA Notice.)
The timing of this blog post reflects me waiting a few days to see if anything else would happen. Thus far, nothing has, and the story has been back online for a week. I will do all I can to keep it there.
And what was the offending content nestled in my story? Forgive me for not setting out exactly what was identified in the DMCA Notice or what I said in my own Counter Notice (and related correspondence to argue there was no infringement). Tactically, it would make little sense for me to set my thinking out in public or allow others (i.e. Highland Titles) to develop thoughts about this affair before I need to. What I will say is that Tweets sent by the @Highland_Titles Twitter account and the screen-grabbed images thereof were mentioned in the DMCA Notice. This is the kind of thing that could be covered by the fair use provisions mentioned above.
There was also a reference in the DMCA Notice to trademarked material. My cursory research of US IP law tells me DMCA Notices are not for trademark breaches (note I am back to the US spelling), so therein lies another reason to resist this particular enforcement step. (The distinction is made clear on DMCA.com’s own website.) For reference, the trademark referred to in the DMCA Notice is Highland Titles’ logo (which is a registered trade mark in the UK). That features in a couple of the Tweets captured and automatically previewed in the story. Notwithstanding the seemingly incorrect trademark enforcement action route of the DMCA Notice in this particular situation, I am confident I can take steps to argue the content in my story is not in breach of IP law in any future trademark enforcement action, or at the very least I could take steps to slightly amend the story to be doubly sure enforcement would not be necessary. That is for another day.
I warned you this blog post was not going to be funny. Instead, this post is a relatively detailed synopsis of this particular incident. I hope this serves the purpose of enlightening people as to how intellectual property law and the internet can interact. It might have the tangential effect of informing people how Highland Titles operates.
I am hopeful this is the end of this particular episode for my Storify story. If it is not, or if separate action follows, I am confident this experience will serve me well and allow me to defend my position robustly. This particular episode has also encouraged a number of people to offer me support in the event any further action takes place. Pride comes before a fall and all that, so I don’t want to sound too bullish, but if anyone connected to Highland Titles is reading this they should note my friends and I will be tooled-up and ready for any future shenanigans.*
Away from the Storify story, I would particularly look forward to any attempt by Highland Titles to send a DMCA Notice or instigate some other enforcement action against the Edinburgh Law Review, that being the peer-reviewed journal that carried the article by Dr. Robbie and me. That article explained and critiqued the relevant Scots law rule about souvenir plots and some of the underlying policy for it. I also look forward to any similar steps that might be taken against the online, open-access academic forum The Conversation, which carried an article by me on the topic earlier this year.
Finally, this whole incident has reminded me of the so-called “Streisand Effect”. Whilst I would not say I or indeed the Scottish Twitterati as a whole had entirely forgotten about this story, the steps taken by Highland Titles have given a reason to remind everyone of the events of #HighlandTitlesDay and the underlying legal position that still provides – unequivocally – that those selling souvenir plots are not providing ownership of the land they purport to sell.
*As it happens, I will be in the company of three people who have critiqued souvenir plots hawkers this Friday, as Dr. Douglas Bain and Catherine Bury (PDF) plus the aforementioned Jill Robbie will be attending a conference I have organised about Scottish land reform. Although there is no formal session planned about the antics of Highland Titles, the topic might just be spoken about over coffee.