Silencing free speech and corporate abuse of copyright law – By Murray Hunter

Murray Hunter 2 October 2016, 8:00am 8

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(Image via emaze.com)

Corporations are using U.S. copyright law to harass and silence individuals and obstruct freedom of the press. Murray Hunter reports.

THE Digital Millennium Copyright Act (DMCA) was unanimously passed by the U.S. senate and signed into law by President Clinton in October 1998. 

The Act was put into law to deal with copyright circumvention and providing internet service providers (ISP) and online service providers (OSP) safe harbour against copyright liability, provided they meet specific requirements.

The DMCA criminalises the production and dissemination of technology, devices, or services intended to circumvent measures (commonly called digital rights management) that control access to copyrighted works. Further, the DMCA also criminalises the act of circumventing any access control — even if there is no actual infringement of the copyrighted material itself. This means, providing a mere link to a third site where suspected copyright material exists is criminal.

The Act has extended the reach of U.S. law beyond its traditional geographical jurisdiction. Moreover, the Act has given copyright right holders a “lethal weapon” to utilise against parties who allegedly breach their claimed copyright. That is, the ability to claim copyright breach directly against any individual. Further, the Act enables copyright holders to force ISPs and OSPs to take down any identified alleged infringing material immediately from any internet site.

However the Act doesn’t give respondents any recourse against a DMCA takedown notice before any material is taken down by the ISPs and OSPs.

Through the DMCA takedown notice procedure a copyright holder becomes a prosecuting judge. A copyright holder need only serve a takedown notice on an ISP or OSP to have any third party’s material instantly removed form the internet.

ISPs and OSPs are given immunity from prosecution from both the copyright holders and respondents to takedown notices, if they strictly adhere to the takedown and counter-takedown notice procedures prescribed in Section 512 of the Act.

This “safe harbor” provision gives ISPs and OSPs incentive to cooperate with copyright holders who are in the majority corporations. Section 512 even exempts ISPs and OSPs from “good faith” in the removal of any material. That is, they may know the takedown notice is flawed in some way, providing the procedures are followed. In effect, ISPs and OSPs become the agents of the copyright holders and aren’t obliged to consider the interests of their users, except through facilitating the counter-takedown notice procedure.

As mentioned above, the material identified in any takedown notice must be removed. The respondent can only respond to the copyright holder through issuing a counter notice, which identifies the person who put up the material, submits to the jurisdiction of a U.S. court and subjects the respondent to the laws of perjury in the response. It is the responsibility of the ISP or OSP to pass on the counter notice to the copyright holder and if legal action hasn’t been taken against the respondent in the takedown notice within 10-14 days, the ISP/OSP may reinstate the original material to their website.

The DMCA takedown notice procedure deems a respondent of a takedown notice as guilty. There is no provision for a hearing from the respondent to either the purported copyright holder or ISP/OSP before the material is removed. At a minimum, any material subject to a takedown notice cannot reappear for at least 14 days.

The takedown notice procedure is biased towards the purported copyright holder.For example, unlike respondents who decide to file a counter notice, the copyright holder issuing the takedown notice in the first place, need not submit itself to the jurisdiction of the U.S. legal system. The issuer of a DMCA takedown notice may be – and is in many cases – a foreign corporation with no intention to submit itself to the jurisdiction of U.S. law. The corporation can use the DMCA for convenience to rid the internet of material at its own whim, where it is almost practically impossible by a respondent to make legal claim for issuing a false takedown notice.

If a respondent of a DMCA takedown notice takes a copyright holder to court, there is no guarantee that the issuer of the notice will submit itself to U.S. law, unless it is already a U.S. legal entity. Even within the U.S. itself, some issuers of takedown notices have escaped U.S. jurisdiction.

Sadly, U.S. case law has tended to protect the issuers of false takedown notices. In 2004, the decision in Rossi v the Motion Picture Association of America found that the DMCA takedown notice issuer had to actually know their claim was false and not merely lazy or mistaken, for a respondent to succeed in their claim against a party who issued a false takedown notice.

Further, issuers of DMCA notices bear little responsibility for false notices. Although Section 512 (f) makes the issuer of any false notice liable for damages, the cost, time and effort to take a copyright holder to court for issuing a false notice, according to current case law in the U.S., would most likely only compensate the respondent for his or her legal costs in direct relation to the takedown notice and minimal damages.

There is nothing within the Act that restrains copyright holders from issuing takedown notices through the principle of fair use. The legally enshrined principle of fair use allows for the copying of small amounts of material for comment, criticism, or parody. Such use can be done without the need to get permission from the copyright holder. Section 1201 (c) states the underlying copyright infringement rights don’t allow the use of fair use as a defence.

This weakness in the DMCA has allowed for the exponential growth of DMCA takedown notices since the Act became law almost 18 years ago.

Twitter receives about 10,000 DMCA takedown notices per month which has grown 58% from the year before. WordPress receives about 700-800 DMCA takedown notices per month, up 55% from the year before. Google receives about 80,000 DMCA takedown notices per month, which has grown also around 50% in volume from the previous year. If the fair use provision was upheld in section 512, the number of takedown notices would be far less and more manageable. Instead, we are reaching a situation where free speech, expression and even creativity are being stifled by the DMCA.

Earlier this year, Jennifer Urban and Brianna Schofield from the University of California, with Joe Karaganis of Columbia University found in a 160 page in-depth study looking at 100 million notices, that more than 32% of DMCA takedown notices were either flawed or had characteristics which raised questions about their validity.

This equates to more than 35 million notices. This somewhat agrees with Twitter’s own data indicating that around 33% of notices it receives are ineffective. WordPress found 60% of the DMCA takedown notices it receives as being ineffective.

The tweet subject to an DMCA takedown notice issued by Howard Stupp.

One very recent case that illustrates the above issues and highlights several sinister aspects of DMCA abusers’ behaviour relates to the International Olympic Committee (IOC) and its legal director Howard Stupp. Howard Stupp is well known for his vigilance in protecting IOC intellectual property. He even bannned the use of GIFs on social media during the recent Olympic Games.

Stupp instituted an automated system which systematically searched the internet for key words. The system was so sophisticated that winners’ names were added as key words to pick out new postings during the games. However, what was apparently absent was any human interface to ensure that the system didn’t mistakenly highlight postings that didn’t breach IOC copyright.

As a result, in one such case, a DMCA takedown notice was sent to Twitter claiming a posting had breached IOC copyright by showing a GIF of the recent games, when in fact the Tweet was posted weeks before the games and the GIF was of another sporting event, not under the jurisdiction of the IOC.

A partial screenshot of the DMCA takedown notice issued by Howard Stupp.

Like the example above, the use of automated systems leads to questions about accuracy and fairness in due process of copyright holders issuing DMCA takedown notices. Human interface is required to ensure a duty of care is exercised. Automated search systems have turned the DMCA takedown system into a massive fishing expedition where individuals who breach copyright may be caught along with a large group of innocent individuals.

In the case above, the recipient of the DMCA takedown notice issued by the IOC attempted to contact the organisation through the email given in the takedown notice (The issuer of a DMCA notice doesn’t have to state their address like the requirement for respondents to do so) to point out their mistake but this was to no avail. Repeated emails were met with silence.  

The fact that the IOC refused to enter into any correspondence with respondents indicates the principle of “good faith” is not being adhered to.

The IOC, like many other corporations not registered in the U.S. are difficult to locate and thus beyond the jurisdiction of U.S. law. This makes it extremely difficult to take any legal action against parties who issue false DMCA takedown notices. The IOC must be aware that some of its DMCA notices are false since no one checks the links the automated system has identified.

Organisations like the IOC will continue to issue frivolous takedown notices in a contemptuous and arrogant manner and ISP/OSPs like Twitter will continue to support large corporations against their own users because of the nature of the current takedown and counter notice procedures in the Act. These are all massive abuses of the system which must be corrected.

There are numerous other well reported abuses which indicate the DMCA is being used by corporations for motives other than seeking out copyright infringement. Warner Bros filed DMCA takedown notices with Google as a tool to takedown websites which would lead to possible infringing content, rather than infringing content on websites as the DMCA specifies. Sony has been trying to obtain license fees on the fair use of their copyrighted material.

A web security firm used the DMCA takedown system to silence a vocal critic of its services in the guise of copyright infringement. The London Sunday Times sent a DMCA takedown notice to eliminate a critical article written in The Intercept. Some organisations have issued DMCA takedown notices against bloggers just to find out their identity.

The DMCA takedown notice procedure is cheaper than using defamation laws against critics, which many corporations are taking advantage of. People with a grudge use the DMCA takedown notice procedure to attack and force suspension of their social media accounts. These notices only allege breaches of copyright infringement. DMCA takedown notices do not prove cases of copyright infringement.

This is a denial of natural justice where the takedown and counter notice procedure assumes guilt before innocence, contrary to common law.

With the large number of DMCA takedown notices coming in to ISP/OSPs, it is time consuming and costly for these organisations to deal with each individual notice. They are doing the work of copyright holders and bearing all the costs involved.

The unbalanced onuses placed upon the recipient in filing a counter notice, and fear of the costs of defending any potential action in a court of law is the probable reason why there are very few counter notices. DMCA takedown notices, as can be seen by the example above are intimidating to many people who receive them.

Further, liability is unbalanced and favours copyright holders. Many corporations don’t fear suits as they aren’t within the jurisdiction of a U.S. court, unlike the respondents who must formally put themselves under U.S. court jurisdiction in filing a counter notice.

 Large corporations like Sony, Disney, Comcast, Viacom and others used automated systems to issue DMCA takedown notices which often misidentify material. This is an injustice against innocent parties who are at risk of having their social media accounts closed if they receive three takedown notices under the multiple offender provision of the DMCA.

The DMCA takedown notice procedure has harassed many internet and social media users, silenced critics of corporations and disrupted people running blogs. Section 512 (f) of the Act is toothless in restraining corporations using automated software and takedown notices go on “fishing expeditions” to seek out copyright infringers. Innocent people’s rights are being violated and in some cases, damage done to them where no practical recourse exists to remedy the injustice. Corporations are free to run their agendas without regard to the principles of “good faith” and fairness and appear immune from responsibility for their actions.

Section 512 has failed to protect people from false takedown notices and allowed the DMCA to be abused by corporations for their own ends. Its safe harbour provision makes the ISP and OSP willing collaborators with such organisations.The use of the DMCA to silence critics and eliminate articles written by journalists, in all probability, if challenged in a U.S. court could even be found unconstitutional due to its incongruence with the First Amendment’s guarantee to freedom of speech and freedom of the press.

Let’s hope the U.S. Copyright Office corrects these shortfalls of the DMCA in its current review of the legislation and considers the introduction of statutory damages and/or bonds to decrease the incidence of false notices.
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