Freedom of Speech and the DMCA: Abuse of the Notification and Takedown Process

Last month, my first academic journal article was published by the leading international publication on IP law: the European Intellectual Property Review from Thomson Reuters.

From the abstract:

The Digital Millennium Copyright Act’s “notice and takedown” process is increasingly referred to as a model solution for content removal mechanisms worldwide. While it has emerged as a process capable of producing relatively consistent results, it also has significant problems—and is left open to different kinds of abuse. It is important to recognise these issues in order to ensure that they are not repeated in future legislation.

To that end, this article examines the DMCA with reference to its historical context, and the general issues surrounding the enforcement of copyright infringement claims. It then goes on to discuss the notice and takedown process in detail—along with its advantages, disadvantages, criticisms and praise. Specific examples of the kinds of abuse reported by online service providers are outlined, along with explanations of the statutory construction that allows these situations to continue. To finish, the viability of potential alternatives and proposed changes are discussed.

The article itself is available on WestLaw, citation: E.I.P.R. 2019, 41(2) at 70However, you can also get a copy of the PDF below.

Freedom of Speech and the DMCA: Abuse of the Notification and Takedown Process (PDF)

This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in European Intellectual Property Review as ‘Freedom of speech and the DMCA: abuse of the notification and takedown process’.
E.I.P.R. 2019, 41(2) at 70 and is reproduced by agreement with the publishers. This download is provided free for non-commercial use only. Further reproduction or distribution is prohibited.

Blow Struck by WordPress.com Against Fraudulent DMCAs

Abuse of the American online copyright takedown system (DMCA) is rife. People frequently submit fraudulent notifications to online service providers in order to censor views that they disagree with, curbing legitimate freedom of expression. Examples include those trying to stifle negative reviews about their businesses or products, preventing political satire, and even inappropriately targetting the normative use of a trademark.

All too often, OSPs simply shrug their shoulders when confronted with these scenarios, and process the notices anyway in order to avoid losing their safe harbor protections. Even when alerted to what’s going on in specific circumstances, many choose a policy of non-intervention, rather than to defend their users.

The result of one of two cases which were filed by Automattic in response to fraudulent takedown notifications submitted concerning material posted by WordPress.com was released a few days ago, Westlaw citation: 2014 WL 7894441. The judgement concerned a notice sent by a group called ‘Straight Pride UK’, who objected to the publication of an e-mail interview which a journalist Oliver Hotham had conducted. Under §512(f) of the DMCA, Automattic were awarded a total of just over $25,000 in damages – $960 of which was for Hotham’s time.

The outcome was a ‘default judgement’, as the defendant’s (unsurprisingly) didn’t turn up to the hearing, despite being served properly through the standard international processes. It’s unlikely that either Automattic or Hotham will ever see any of the money, so it is largely a symbolic victory. However, it should not be dismissed too quickly, as the case highlights a number of important issues:

  • The DMCA is frequently abused, with few consequences for those who misrepresent their copyrights
  • Taking action against this abuse is expensive, and happens extremely infrequently
  • Enforcing damages against those from outside the US is difficult, and so there is a hole in the remedies available where those who abuse the system fall into this category
  • Even where organisations or individuals are resident in the US, major online service providers do nothing about the fraudulent notices they receive that could be actionable
  • In order for damages to be awarded, material must be removed as the result of a misrepresentation. There are no consequences for fraudulent notifications that are caught by diligent service providers first – at their own risk

The DMCA is a blunt tool that has an incredible power to silence dissenting voices without recourse. The only way in which this is going to change is if service providers begin to stand up against the abuses, using the considerable resources as their disposal – both to further the conversations in this area, and also to take legal action where possible.

Transparency: I am a Community Guardian for WordPress.com.

 

DMCA Rejection Retaliation

Every day WordPress.com receive a sizeable number of DMCA takedown notifications, and every day I personally reject a fair number of them for being incomplete, invalid, or fraudulent.

Many of those who find their takedown notifications being rejected are displeased with the decision, used to service providers choosing to automatically process them, shifting the burden of proof onto the user, rather than take on the risk of liability for themselves. Unsurprisingly, this displeasure is often most aggressively expressed by dedicated third party agents whose sole business model is based on scouring the web for potentially infringing acts, and who get paid per removal. Some people may say that with a results-driven financial incentive to have material taken offline, that there is more of a chance for the DMCA process to be used inappropriately – but that’s something you’ll need to make your minds up on independently.

Yesterday a colleague let me know about one such organisation that had evidently found some of their notifications rejected in the past, who had then chosen to take to Twitter to voice their displeasure about me doing my job.

Screen Shot 2015-02-24 at 23.49.14

The image they linked to was of me, lying on the grass clutching a bottle of Buckfast – the weekend of the Queen’s Jubilee, if memory serves correctly.

The one they used wasn’t really very good quality though, so here’s a higher resolution one incase they want to try again:

crail

I’m not entirely sure what they were trying to achieve to be honest. It’s not as if pictures of me intoxicated are really all that hard to find, after all. My occasional penchant for Buckfast isn’t exactly a secret at Automattic either, given that I did my first annual ‘flash talk’ at the all-company Grand Meetup in Utah on the ol’ tonic wine.

Somebody (who shall remain nameless) suggested we reply to say:

Even smashed on Bucky, Clicky Steve knows more about the DMCA than RemoveYourMedia

Which is so beautiful it almost brought a tear to my eye.

That wasn’t the only tweet they aimed at me though.

Screen Shot 2015-02-24 at 23.49.26

It’s pretty bizarre that they would choose to use that case about Napster to illustrate the potential liability for service providers guilty of contributory infringement, since there are far more recent, compelling, and relevant judgements they could have made their point with. Ah well, better luck next time, eh? As far as I’m aware they never actually sued after these bold statements on social media, but maybe they’re still preparing the paper work.

At the end of the day, whilst this has given me a hearty chuckle before I turn in for the night, there’s no getting away from the fact that it’s not only petty, but ridiculously unprofessional. Making ad hominem attacks on employees of a company for rejecting your legal demands is pretty sad. If I was a copyright holder, I wouldn’t be too impressed to find the agency I had employed to protect my intellectual property deploying tactics like this. Then again, it might be a bigger deal if they had more than 1200 followers…

In the world of the DMCA, there’s only one thing dumber than submitting bogus takedown notifications, and that’s having a tantrum on Twitter when your bogus takedowns are rejected.