The sending of a false DMCA takedown notice almost never has legal repercussions, but this week a California federal judge meted out such a punishment. US District Judge Phyllis Hamilton ordered (PDF) the press officer of a group called "Straight Pride UK" to pay $25,084 for sending a false takedown. Importantly, that includes the legal fees of Automattic, the San Francisco-based creator of the WordPress blogging platform that brought the lawsuit.

It's a default judgment, because defendant Nick Steiner never responded in court. Still, it serves as a warning to those seeking to bully small bloggers that pushback is possible.

"It's a victory, but a somewhat hollow one," said Automattic's general counsel Paul Sieminski. "We're never going to collect, and it highlights the lack of effective remedies for abusing the DMCA, which people are still using as a tool of censorship."

“Are these people kidding?”

Oliver Hotham started his blog in July 2013, while he was a student journalist, as a place to highlight his own writing and commentary.

The following month, he reached out to a group he had read about calling itself "Straight Pride UK," which Hotham described as "a strange group which believes that the tide of Gay rights has gone too far and that now heterosexuals have become the oppressed minority."

Hotham identified himself as a journalist looking to do a story. He sent along a list of questions and in response got a press release that explained the group's mission, which was to make sure "that the default setting for humanity is not forgotten, and that heterosexuals are allowed to have a voice and speak out against being oppressed." It read in part:

Homosexuals do currently have more rights than heterosexuals, their rights can trump those of others, religious or not. Heterosexuals cannot speak out against homosexuals, but homosexuals are fee [sic] to call people bigots who don't agree with homosexuality, heterosexuals, religious or not cannot refuse to serve or accommodate homosexuals, if they do, they face being sued, this has already happened

Hotham published portions of the press release along with his own commentary. "Fully satisfied that my journalism had made them look like the arses they are, I hit the publish button, and sat back, feeling all together really pleased with myself," he later wrote.

Soon after he got an e-mail from Straight Pride UK’s press officer, Nick Steiner, who wrote:

It has been brought to my attention that you have published the email that I sent you to, you did not state this in your email request, nor you did have consent to do this. I therefore request that you take down the article that you have placed on your blog. You have 7 days in which to do this, failing this I shall submit a DMCA to WordPress to have it removed.

Hotham laughed it off, confident in his rights to publish a press release—especially since he'd told Steiner his intent was to write an article.

Bad press for WordPress

Steiner followed through on his threat, sending a DMCA notice to Automattic. To Hotham's dismay his article was removed within a few days. He wrote:

"WordPress caved to them without question, removing my article and telling me if I tried to publish it again I’d be suspended, but that I could challenge the takedown of my article," he wrote. He continued:

I responded that yes, I very much would like to, and was emailed a form I’d have to fill in. One of the requirements was that I “consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body". I’m a student. I don’t have the money, time, or patience to go through with potentially having to go to court over this. All in all, I just could not be bothered to challenge the decision. So I accepted the takedown, feeling thoroughly shit about myself.

For whoever was behind "Straight Pride UK," it wasn't enough. Having succeeded in removing Hotham's article, they smelled blood in the water. Hotham got another e-mail telling him to "…remove all references to Straight Pride UK, The Straight Forward Project, along with images, and links, from your Blog."

Hotham was at wit's end.

"So not content with forcing me to eat a shit sandwich on dubious grounds by making me take down my work, they now demand that I never write anything about them again," he wrote. "Are these people kidding? Who the hell do they think they are that they can simply demand that I not write about them again, in an email with the pointedly sinister name of their solicitors at the bottom?"

Few people had cared about Straight Pride UK, but Hotham's complaints about the removal of his work touched a nerve. Articles went up in The Guardian, TechCrunch, and BoingBoing—people were mad at Straight Pride, but they were also mad at WordPress.

"WordPress—who should have seen that there was no possible copyright violation in the interview — caved and cooperated in censoring the post,” wrote Cory Doctorow at BoingBoing.

Later, when Automattic filed their complaint against Steiner, they said the notice got honored only because of the outright lies it contained. Steiner had told Automattic, "no mention of material being published was made," but in fact Hotham had told him he was a journalist, and the statement had been titled "Press Statement."

Same Team

Sieminski reached out to Hotham to explain. "My first reaction was, hey, we’re in the same boat, we think this is terrible," he said. (Hotham didn't immediately respond to a request for comment on the judgment.)

Ultimately, Sieminski hired legal counsel to sue Steiner on behalf of Hotham and Automattic, together with another "test case" under section 512(f) of the DMCA, which allows fees to be assessed for misrepresentations in takedown notices.

"The article from Boing Boing—which has a vast readership that significantly overlaps with WordPress.com’s users—was particularly damaging," Sieminski later wrote in a declaration (PDF) filed in court. Automattic "prides itself on its reputation for allowing its users to use WordPress.com for any lawful purpose they choose" and "works hard to advance and uphold its reputation as defenders of free speech online."

Automattic estimated its reputational damage at $2,000, although Hamilton didn't ultimately offer any damages on that basis. The default judgment included $960 for Hotham's work and time, $1,860 for time spent by Automattic's employees, and $22,264 for Automattic's attorney's fees, for a total of $25,084.

Sieminski said the group hasn't been able to find Steiner, despite hiring a private investigator and going through proper channels to effect legal service. In the other 512(f) case Automattic brought, against an Indian national named Narendra Chatwal, it wasn't able to even get enough information about the defendant to serve him and had to dismiss the case.

Other notable cases of attempts to collect damages under 512(f) include the Electronic Frontier Foundation's long-running "dancing baby" case, which is on appeal at the 9th Circuit. EFF filed a second case on behalf of copyright guru Lawrence Lessig, which resulted in a settlement last year.