Amidst the furor over the drip-drip-drip of NSA spying allegations and rumors that Edward Snowden would seek asylum in Ecuador, Buzzfeed journalist Rosie Gray published a series of documents concerning Ecuador’s intellgience service, SENAIN. According to the documents, Ecuador purchased telephonic monitoring equipment and was monitoring the online communications of opposition political figures and journalists.
Ecuador’s Minister of the Interior responded on June 27, suggesting that the documents were a “fabrication”, although he conceded that Ecuador has sought to purchase surveillance equipment, which he bizarrely claimed had solved “100 percent of kidnapping cases.” He issued a further warning: “We invite the national or international press to demonstrate one single case of groundless wiretapping.You have 24 hours to do so, or you will be determined to be liars.”
What followed, however, appears to contradict the claims of Ecuador’s government that the documents were a “fabrication.” The same day, the documents posted by Buzzfeed were removed from document-sharing site Scribd.com due to a copyright claim by a small firm named Ares Rights, an anti-piracy outfit based in Spain.
This is not the first time that Ares Rights has worked at the apparent behest of Ecuador’s government — and possibly the government of Argentina — to attempt (and fail) to censor embarrassing media online.
Ares Rights, Ecuador, and The Embarrassing Documentary
Ares Rights appears to be a small firm operating out of Spain, offering clients the ability to monitor the internet for copyright infringement. While a major anti-piracy monitoring service might be expected to have hundreds (if not thousands) of.DMCA notices in Google’s Chilling Effects database, Ares Rights — whose CEO claimed in an email to have millions of works under his company’s purview – has a slight handful.
The initial registration of the Ares Rights domain name (ares-e.com) was registered to Jonathan Palma Ruz, using the email address email@example.com. Mr. Ruz (or Ruiz) appears to have been previously employed by RedPoints, another Spanish anti-piracy firm. (His @redpoints.es address no longer receives email.). In an email to me (below), Jonathan Palma confirmed that he was the CEO of Ares. Despite being in Spain, the firm and its CEO are tied to Ecuador’s state-owned and -operated television channel and continues to assert copyright over several Ecuador-related images.
First, as Rosie Gray notes, Ares Rights asserted copyright claims targeting a documentary that was less than friendly toward Ecuador’s president, Rafael Correa.
When the documentary was posted to YouTube and Vimeo, Ares Rights quickly issued DMCA takedown notices on behalf of Ecuador’s state-operated TV channel, ECTV, on the basis that the documentary contained “unauthorized images” from ECTV.
Responding to communications from one of the people behind the documentary (who asserted that the copyright claims were made by Ares Rights on behalf of the Ecuadorian government), a “Jon Ruiz” wrote a letter back.
Nor is this Palma’s only connection to works in Ecuador. This week, he claimed copyright ownership over, among other things, this “wanted” poster depicting an alleged child molester in Ecuador, Jorge Glas Viejo:
Why would someone go to great effort to preserve the copyright in this image? I can only speculate: the ‘wanted’ poster omits the last name of the suspected child molester, leaving him with the same name as Jorge Glas, an Ecuadorian politician and friend of President Correa.
Abusing Copyright and (Ironically) Spanish Privacy Law to Target Buzzfeed
Despite Ares Rights’ failure to remove the documentary from YouTube, Ecuador’s government has apparently demonstrated fidelity to the first rule of government efficiency: if it don’t work, keep using it until it does.
Ecuador’s government can seek protection under American copyright law. Although there is little artistic or commercial value to the documents themselves, the works of foreign governments can be protected pursuant to 17 USC § 104(b)(1), assuming the government is a signatory to an applicable treaty. (Ecuador meets these requirements.)
Even assuming Ecuador could establish that it has a viable copyright interest in these documents, their publication is unquestionably fair use. Full stop. Buzzfeed, then, could send a DMCA counter-notice and restore the documents to Scribd.com, and would likely have a strong 512(f) claim against Ares Rights for sending an improper, censorious DMCA notice. But good luck trying to collect against a small, overseas firm.
The CEO of Ares Rights, Jonathan Palma Ru(i)z, declined to identify his client in an email to me, asserting that doing so would violate a Spanish law intended to preserve the privacy of individuals (“Ley Orgánica de Protección de Datos” or LOPD). (The full email exchange, translated into English, is at the end of this post.) While I am by no means an expert on Spanish law, LOPD seems to only apply to the privacy of individuals and is inapplicable to governments or corporations. Further, Ares’ DMCA efforts have routinely disclosed the names of its clients. Why the sudden shyness?
And, no, the irony of using a law intended to protect individual privacy rights in order to prevent disclosure of potential violations of individual privacy rights is not lost on me.
The use of copyright claims is poorly considered. By claiming an ownership of copyright, Ares Rights — and whoever it represents — effectively confirms that the documents are legitimate. Were the documents a “fabrication”, as Ecuador’s Minister of the Interior claims, then the holder of the copyright would be whoever fabricated them — which is unlikely to be Ares Rights or a new client.
But nevermind the law. While Ecuador may take issue with Buzzfeed’s reporting and its comparison of the leaks to the NSA controversy, attempting to remove the documents themselves undermines the ability of readers to consider the evidence and reach their own conclusions. Trying to hide the evidence is a signal — whether accurate or not — to outside observers that there really is something to hide.
Not Just Ecuador: Copyright Censorship in Service of Argentina?
Ares’ recent activity does not appear to be its only attempt to use copyright law to attempt to remove unwelcome information about South American government officials. In this DMCA notice to Google targeting fourteen dissident websites, Ares Rights asserted that it owned the copyright to this image purporting to show Juan Medina, the Chief of the Cabinet of Ministers of Argentine, using cocaine:
While the image does not look legitimate to me, Ares Rights could not legitimately claim a copyright ownership unless it were authorized by the image’s creator.
El Efecto Streisand
Sometimes it’s best to let sleeping, unseemly dogs lie. Would-be censors, having learned nothing from their predecessors, routinely discover that the attempt to hide uncomfortable facts (or, on occasion, untruths) simply leads to greater exposure of those facts.
With that in mind, I’ve taken the liberty of uploading most of the documents in a zip file to my own server, in case Ecuador or Ares Rights tries to get Buzzfeed’s documents removed again. People deserve to be able to review these documents and weigh media coverage of them without interference from a government.
So, in closing: Come at me, Ecuabro.
First the translated English, then the original Spanish:
To Ares Rights:
To Whom It May Concern:I am a journalist who writes about online legal issues. I am preparing an article about the recent removal of documents relating to the Ecuador government which were removed from Scribd.com at the request of Ares Rights.I have a few questions:1) On what legal basis was the complaint made?2) Was it on the basis of copyright? If so, was the complaint made pursuant to American law (e.g., the DMCA), Ecuadorian law, or another law?3) Would you be willing to share with me the complaint sent to Scribd.com?4) On whose behalf was the complaint made? That is, who is your client?Regards,Adam SteinbaughJ.D., Loyola Law School, 2012Los Angeles, CA
I’ll answer your questions.
1. I cannot explain the legal basis of our actions for two reasons. The first is that you are not the rightful claimant or proprieter of the content. The second is that the means by which we conducted our action forms part of our knowhow [ed.: I take this to mean that it's proprietary]
2. Same as the first question, I cannot give you details of our legal basis nor of the jurisdiction that affects it.
3. I cannot share with you details of our notification because you were not a part of it. Neither do we have the custom of publishing our requests. We are the owners of the authorship rights of the over two million requests that we have made, and we have never published them.
4. I cannot reveal our cliet’s identity to you, it would be a crime, our law does not allow us to give out the information of our clients. The Spanish law which regulates the circulation of information is the Ley Orgánica de Protección de Datos (LOPD).
I am sorry I was not able to help more.
Quién corresponda:Soy un periodista que escribe sobre cuestiones de derecho y el internet. Estoy escribiendo un artículo sobre la reciente eliminación de los documentos relacionados con el gobierno de Ecuador, que fueron retirados de Scribd.com a petición de Ares Rights.
Tengo algunas preguntas:
1) ¿Sobre qué base legal era la reclamaciónhecha?
2) ¿Era sobre la base de los derechos de autor? Si era así, era presentada de conformidad con la ley estadounidense (por ejemplo, la DMCA), la ley Ecuadoriana, u otra ley?3) ¿Estaría dispuesto a compartir conmigo la reclamación enviada a Scribd.com?4) En nombre de quién se hizo la reclamación? Es decir, ¿quién es tu cliente?Atentamente.
Te contesto a tus cuestiones.
1. No puedo explicarte las bases legales de nuestras acciones, por dos razones. La primera es que no eres el derechohabiente o propietario de los contenidos. La segunda porque la forma en la que realizamos nuestras acciones forman parte de nuestro knowhow.
2. Al igual que la primera pregunta, no puedo darte detalle de nuestras bazas legales y de que jurisdicción las afecta.
3. No puedo compartir los detalles de nuestra notificación porque no eres parte. Tampoco tenemos como costumbre publicar nuestros requerimientos. Somos los propietarios de los derechos de autor de cada uno de los más 2 millones de requerimientos que hemos emitido, y nunca los hacemos públicos.
4. No puedo revelarte quien es nuestro cliente, sería un delito, nuestra ley no nos permite divulgar información de nuestros clientes. La ley española que regula la circulación de información es la Ley Orgánica de Protección de Datos (LOPD).
Siento no poder ayudarte demasiado.
Te mando un saludo.