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Åsk Wäppling’s Adland Torpedoed By “Nuisance DMCA”

Åsk Wäppling is a warrior in the midst of a legal battle to preserve 20 years of her digital work. Thanks to the Digital Millennium Copyright Act and the lawyers who misuse it to intimidate everyday citizens, Adland.tv is now offline.

DMCA criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM). It may have been well-intended when it was written, but in reality, the 1998 law is a bludgeon from another time.

The story of Adland’s takedown is stupid and grossly unfair. I appreciate Åsk, a.k.a. “dabitch” taking time to explain what happened to Adland. As she seeks a legal resolution, I’m inclined to ask what the extremely rich and powerful ad community can do to help her. Also, what can be learned from this case, so it doesn’t continue to happen?

Q. When did you start Adland and how have you, blogging, and the ad industry changed since then?

I was literally just a kid when I started Adland. I was fresh out of Parsons (N.Y.) and then The school of communications arts in London, I hade a few placements at great London agencies under my belt and was looking for work in San Francisco. Nobody listened to me, because I was young cute, bottle-blond and huge eyes. At the Clio awards that year I was so frustrated that campaigns I saw there, were exactly like things I hade seen in London. I photographed this, scanned it, and made my own website with some dorky HTML generator, showing campaigns side by side, just like Joe La Pompe does (him and I have so much in common!) I had no idea what I was doing, but I had already been hanging out in Usenet discussing advertising for years so I knew this would probably snowball.

Blogging didn’t exist back then, it was ‘just’ a website. And my site got so much mail that I soon had to learn to make it interactive so that people could leave comments. I had to seek out hosts that allowed cgi-bins when I had no idea what “cgi-bin” meant (for the kids taking notes, it means Common Gateway Interface). I have this weird ad-obsession of mine to thank for my constant self-education. I now know load balancing, Nginx, MySQL, Linux, cloud server API’s, HUGO, PHP, Python and Perl—which incidentally is what I named my daughter after, because that loop is funny. I just thought it was fun, you know, to build something and it worked. It was very satisfying. I would go to a job where things were focus-grouped to hell, and have to bend to that. But at home, if I could make it, it would happen.

Q. Could the takedown that happened to your site happen to anyone, or is there a reason that your site was singled out?

Oh, it happens to anyone and everyone every day. Private citizens creative works and remixes, or even films of their kids dancing have been slapped by DMCAs since the ’90s. Even people who run business channels on YouTube with millions of fans and views have had their work deleted unceremoniously because of some nuisance DMCA. I say “nuisance” because these DMCA’s are like the ambulance chaser lawyers of the internet. That’s even lower than your regular ambulance chaser.

Yes, trusted friends and colleagues do suggest this is a targeted thing, and it is a little odd that practically every trade mag right now is running headlines completely unrelated to “Adland” with the term “adland” in it. However, I have gotten a DMCA or Cease and Desist orders practically every week since at least 1998 (that one was from Universal studios, arrived on snail mail and I had it framed for a moment) so I just think this is our usual nuisance DMCA in combination with an unusually skittish Cloud server host. For all I know, the guy handling it at Vultr may in fact only be as old as my website is. Experience is worth something.

To elaborate, yes, this could happen to anyone, and it will increasingly happen to not just private citizens but also governments. You see when we all jumped off hardware that was connected to an internet line and moved to cloud serving, the legalities shifted. My cloud server host is now, like YouTube, the one that gets the DMCA instead of me. And with everyone saving their photos, home movies, collaborated projects, backups in clouds, everyone is vulnerable to this. To top it off, governments like NZ and Sweden are storing masses of data on their population in cloud services that they don’t even know where they are physically located. Forget the security issue of poorly restricted buckets, we have governments placing information about citizens in other legal territories. So this isn’t about some web archive with historic commercials only adgrunts and ad students care about, this is the canary in the coalmine warning. Cloud storage is where we are all going. Hardware isn’t cheap, state of the art security isn’t easy, and defending yourself from DDOS/Malware/etc attacks require outright scale and capacity to endure. Adland outgrew any physical machines well over a decade ago, and I can’t go back to that even if I wanted to due to how the traffic behaves. I need scale.

Q. Is copyright law horribly outdated for this digital time? How outdated is it?

Copyright law is terribly outdated whilst being so simple that it still works if you use logic. What is much worse are the idiot band-aid ideas like the DMCA. The late 90s when I was working on Adland brought the DMCA, a bizarre compromise that by how it is phrased had no clear vision of how the web was about to grow, and is utterly useless for people who have IP to protect. I hated it in 1998, I hate it now, so at least I am consistent. Another thing that I am consistent about is agreeing with artists, coders, musicians,  creatives of any kind, that their copyright should belong to them. It is up to them how they want to share it, and not anyone else (unless they sold their rights). This has somehow been an incredibly divisive thing to say through the years, and I suppose a lot of people who have butted heads with me on that topic dislike my stance. “If I make a copy and you still have the original I stole nothing.” Oh please, think further than the length of your nose. What happens when nobody owns anything but the place to share it on is owned by global corporations?

So, anyone who works in a creative business who argues that copyright needs to be “updated” is, knowingly or not, arguing for more laws like the DMCA that in the end will not be used as tools to protect IP, but as tools to censor. This is a very dangerous road to go down, now that we all share the same internet highway. And if they are not arguing for that, they are arguing for less individual rights. I can not agree with this, and I can’t see a system where rights are taken over by a higher entity, like a government or a giant tech corporation, working well. And yes, it makes me concerned. These days when everyone is freaking out about how Facebook ads “may” have swayed the vote in the US, we all should be very concerned by this bigger picture.

Q. Have you hired a lawyer to help you fight this violation of your I.P.?

A. Let’s just say that I’ve had very good conversations. As they all will you tell you, mums the word. It’s actually been the most enjoyable part of all this, I love talking to smart people about big problems/ideas. Silver lining!

Q. How can your readers/fans/supporters help right now? What can we do to help you get your site back up and running?

I hate e-begging, but to be crass lawyers cost money and a retainer is ten grand USD. I have a Paypal, a Donately, a Liberpay and some cool black suede shoes that I designed if you fancy that. I never put up a Patreon with a page stating “Åsk is creating the world’s largest commercial archive and boy do those bandwidth bills suck”, mimicking how some people treat that platform where they simply get money for tweeting and dying their hair, and I kind of suppose I should have, as a joke. But again, there’s the user agreement there, and as people have been booted off Patreon for sneezing somewhere else on the internet I hate to roll my eyes but that is how those terms of service go, and that is why I’m not there. Because I’ve already been there, you see. Remember when Paypal kicked us off for having an Opium ad? It was the one with Sophie Dahl posing naked, and we wrote about that billboard being the most complained about billboard at ASA UK back then. Over 200 complaints, as I recall, and then it was named the most offensive ad of the year. In 2004, Paypal shut down our account and froze all of our assets because if you squinted you could see Sophie Dahl’s nipple in that article. And they did this right before the Super Bowl.

This was back when people had to pay to see the videos because that was the way adgrunts would share the bandwidth bill with me. I kept the charge super low so that students could see all ads, one month was two dollars, and you could even buy just a weeks access if you were that broke, as students tend to be. It was just a way to force people to add to the tip jar because if you don’t, people think “meh, someone else will do it” and nobody else will do it. It is not lost on me that this is known as the Kitty Genovese effect.

So there we are, it’s Super Bowl weekend, my servers are making crazy noises in my server room (have you ever heard a hard disk scream from heat?) and nobody could pay to help alleviate the costs of running this crazy traffic and the money I had in my Paypal account was frozen. I remember thinking that was a very targeted attack then because it was so well-timed. The Sophie Dahl ad poster was sold on eBay at the time, you know, eBay, that used Paypal as a payment system and later bought them? You could see that poster anywhere on the web, but I get my PayPal shut down and assets in there frozen. Ho-kay. That is a lot like this “a Dog’s life” BBDO Bangkok ad situation. There literally are more than a thousand copies uploaded on YouTube, it’s on Adforum, it’s literally everywhere. But I’m the one that gets the DMCA. Yes, that is quite odd.

Q. Can you explain the need to host the videos on your site versus using an embed from Vimeo or YouTube?

At YouTube and Vimeo I would be DMCA’d exactly in this fashion, and it would have happened a lot sooner. You have to remember that I hosted video for many many years before YouTube was even conceived of. The permission that I got to host these ads was granted to me, to be hosted on Adland, not YouTube. I’m literally honoring the agreements made then. Back in 2003. This takedown request stems from an article about an ad 17 years ago. YouTube only came to the market 14 years ago. The fact that people are asking me to move to the second comer gets a little insulting at times. Why, instead, wasn’t I showered with VC funding money like they were? Hmmm. What could be the differentiating factor, between me and the lads who were geeking out with equally lofty ideas of the future? Let me know when you figure out the answer.

Was it because I respected copyright and sought permission for each ad that I put up, in stark contrast to what they did? You know they filled YouTube with stolen content to make it as big as it is. That was what all those lawsuits were about. And there I was, asking for permission like some well brought up, polite, little girl. Which, in fact, I am, despite the impression people might get from my name.

Q. What don’t we understand about the dangers/challenges of web hosting?

A.  Pretty much everything. If there is one thing I have learned over the years is that people never think further ahead than their next paycheck. They will roll out a temporary fix, a cheaper solution, and they will easily become digital serfs for somebody else corporation – but hey, if we call it ‘social media influencer’ it’s cool, right?

I used to host on the backbone of the Dutch internet, and I had to waddle into the server room wearing a Hazmat suit a la “intel Inside” commercials. Fun times! We are now all so disconnected from that, globally, uploading every smile, date made, email received, and question asked to our Alexa and Ring view from our door that we have no idea how much of us is stored online, in the cloud, globally. I don’t think the potential legal issues here ever crosses peoples minds.

Most individuals don’t web host, they use Twitter (where they can get banned), maybe Linkedin (same) or Facebook (same again) and if they do put up say, their portfolio on a website somewhere, they have to understand and read up now where this host is. Your usual portfolio suspects (free or paid) are in the cloud too. You can all have your portfolios brought down because someone in Colorado claims that they represent Bridgestone, and you are using their trademark in your work. It doesn’t matter if you did this ad 17 years ago in Bangkok, and it won you the very first award of your career.

Q. Isn’t this mess all caused by lack of communication between parties (client, agency, PR team, and legal team)?

It’s been 16 years since PR was even involved, at least. And I still have not received an adequate reply from Amy Tindell at Holland and Hart LLC on, how exactly, she represents the Thai Bridgestone client who hired BBDO back in 2003. Quoting the Lanham act, because Adland’s article explains that this particular ad won a Silver Asia-Pacific Adfest award that year was particularly sad. Adland is not in the business of selling tires. We write advertising news. This ad won an award and 16 years later some lawyer in Colorado wants it off the global internet, starting with the oldest advertising website in the world.

I will straight up say I have no problem with PR teams. they get yanked around a lot too. “Release this NOW!” the client will say, and they yank it back five minutes later. They get a credits list that lacks key people, most likely due to agency politics (or let’s be frank, assholes at agencies) and they have to request that I go back and make corrections later. I get it. It’s not their fault. While some PR people have literally said “unsubscribe” to my announcement that this has happened, the nice ones are still the nice ones, as nice people can’t hide. And I will remember the “unsubscribe” ones.

Q. Do you feel like you’ve been robbed?

A. Interesting question. No. Not me, personally. There was an albatross around my neck, something that required time and effort and frankly was getting unfun there for a moment that has suddenly been shut off, and I feel “fresh out of fucks” about that. I had to go without sleep for a long time, just to sort all that data, and right now I don’t know where I want to put it. Maybe in a time capsule?

I did get anxiety, I won’t complain about that sort of thing but you get a one-liner that says “move your domain in 24 hours”, well, that’s a bit of tension. That’s the sort of thing you would like to plan and map, and I didn’t get that chance just a GTFO. Quite unpleasant. It’s also unpleasant to feel that this may happen at any time, like say when you are on a long transatlantic flight, as I actually was when the first notice rolled in. Adland could have been deleted off the web completely, forever, simply because I was traveling. 23 years of obsessive work *poof* gone because someone at the cloud service doesn’t have the accumulated wisdom to see that this DMCA request is complete bullcrap or the patience to let the publisher properly respond, which is called for by the law.

So here we are. I know the legal and technical issues, very well, and I know full well that I do not have time for this any longer. The advertising world, that makes tons of money globally, should really step up and consider the worth of their own history, and the pop culture impact of this work. Here they are putting their creative campaigns on Instagram, Snapchat, or whatever else, and it’ll be gone when they run out of interns. I certainly don’t trust the data to still be here five minutes from now. But you know, meanwhile, there’s a really obsessed chick that has her eyes on the future (and has for the past 20 odd years) who might know exactly how to archive that.

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David Burn: Co-founder, editor, and publisher of Adpulp.com. David wrote his first ad for a local political candidate when he was 17 years old. She won her race and the advertising hook was set early. Today, David is a brand messaging specialist working with positive companies, campaigns, and causes in Austin, Texas.

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