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.

 

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Automattic/WordPress.com fight back against Censorship

WordPress LogoAutomattic – the company behind WordPress.com, have taken a decisive step in the fight against bogus DMCA claims.

Under the Digital Millennium Copyright Act, people can submit a takedown notice to web service providers where their intellectual property is being used without permission. This is the legislative attempt to protect hosts like Google, WordPress, Tumblr, etc from being held responsible for the content that their users post – provided that they swiftly restrict access.

However, whilst this system is designed to give a balance between protection and enforcement, the reality is that many times it is abused by those who wish to silence critics, or to censor views with which they disagree. The Church of Scientology infamously issued thousands of DMCA takedown notices to stop the spread of anti-Scientology views on Youtube, for example. This tactic is highly effective, as the content is almost always restricted (at its peak moment of attention), and the process to challenge the notices (a ‘counter notice’) isn’t something that creators are, or arguably should be, familiar with. In effect, it becomes a virtual game of ping-pong, with the burden of proof shifting to the ‘author’ of the content to prove that they actually have the rights to publish. Sites themselves can take action, but with the sheer volume of notices that they receive, it is often impractical, and rarely a route that businesses want to go down.

I’m both pleased and proud to see that WordPress are fighting back against two such bogus DMCA claims, as announced in this latest blog post, where you can find all the details of the two cases in question.

For the full text of the original post from Oliver Hotham – one of those that fell victim to the misrepresentative DMCA, continue reading below, where it is republished with permission.

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