Perez Hilton's copyright (mis)information page

Doing some additional research into the Perez Hilton/National Organization for Marriage copyright flap, I came across the "Copyright Information" page on Hilton's blog. Given Hilton's penchant for finding himself in the middle of copyright disputes, one might expect this page to be a well-lawyered, legally accurate effort to keep Hilton -- né Mario Lavandeira -- out of trouble. One would be wrong! Actually, Hilton's copyright page is the worst example of a copyright policy I've ever seen. Let's take a look:

All images on perezhilton.com are readily available in various places on the Internet...

Well, maybe. But so what? That a work may be "readily available" on the Internet does not mean that it is free for the taking, any more than the fact that a DVD is "readily available" at Best Buy means you can make copies and sell them, give them away, or post them on the web.

All images on perezhilton.com are...believed to be in public domain [sic].

Seriously? Exactly what is the basis for Hilton's purported "belie[f]"? Actually, I very much doubt that any of the photos on Hilton's site are in the public domain. Someone took the celebrity photos he features, and they -- the paparazzi or the photo agencies that employ or contract with them -- own the copyrights. And I would be shocked if any of them have dedicated their works to the public domain. I don't know Hilton's current business practices, and he may well be displaying these photos under license from the copyright owners, but this has nothing to do with the "public domain."

Under the section titled "Claims of Infringement," Hilton writes:

If you believe that any content appearing on perezhilton.com infringes on your copyright, please let us know. E-Mail info@perezhilton.com [sic] following information to us and the infringing material will be removed as soon as possible.

(a) your name, address, telephone number, and e-mail address;
(b) a description of the copyrighted work that you claim has been infringed;
(c) the exact URL or a description of each place where alleged infringing material is located;
(d) a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
(e) your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
(f) a statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner's behalf

Well, it's nice that Hilton provides an email address to send infringement notices. But the suggestion that the material will only be removed if the information listed in (a)-(f) is provided has no actual legal basis. This section of Hilton's copyright policy mirrors the requirements of Section 512(c) of the DMCA, which provides a safe harbor for hosts of material provided by others if the host (among other things) removes the material promptly upon receipt of a takedown notice that contains certain required information (basically, what Hilton lists in (a)-(f)). But Hilton's posting of photos is not protected by the DMCA's safe harbor -- even if he removes them promptly upon request -- for the simple reason that they are posted by Hilton himself, not "at the direction of a user." 17 U.S.C. § 512(c)(1). If Hilton posts a photo without the permission of the copyright owner, the copyright owner can simply run to court and file a copyright lawsuit -- no prior notice to Hilton required. And if the copyright owner chooses to send a demand letter first, it does not need to follow any particular form, including that provided by Hilton.

Lastly, Hilton darkly warns:

Please also note that under Section 512(f) of the Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Sorry, but Section 512(f) has nothing to do with the photos Hilton posts to his site. Section 512(f) covers only misrepresentations in a DMCA takedown notice (or counternotice). See id. (imposing liability on "Any person who knowingly materially misrepresents under this section," i.e., Section 512, which sets forth the safe harbors for ISPs, hosts, and search engines (emphasis added)). But, as noted above, an infringement notice to Hilton for photos he posts would not be a DMCA notice under Section 512. Issuing a baseless infringement notice to Hilton about a photo he posts is a bad idea -- but it won't give rise to liability under Section 512(f).