Copyright as Censorship: DMCA Abuse to Attempt to Remove Information Online is Endemic
of of course it is department
Online platforms often provide access to copyrighted digital material. If any of this content is infringing, then the platform would be potentially liable as well as the person who uploaded it. Online businesses naturally want to be protected from the consequences of any copyright infringement committed by their users. However, companies in the copyright industry also require the ability to protect their copyrighted material.
To address this tension, the Digital Millennium Copyright Act (DMCA) of 1998 offers online businesses a “safe harbor” in the United States, provided they meet certain conditions, including the removal of infringing material when they are informed of its presence on their servers. . This “notice and takedown” system allows the copyright industry to search sites for material and send notices to affected Internet companies alleging infringement and demanding that be removed. The person who downloaded the material may file a counterclaim under the DMCA. This may trigger legal action by the company claiming the copyright. If this is not the case, the material will be put back in place.
Although the safe harbor approach is designed to provide a balanced solution to the demands of both the copyright industry and online service providers, it masks a deeper inequality that is typical of the world copyright. Takedown notices are usually sent by lawyers or specialists who do this constantly, often thousands of times a day, using automated systems. They know the details of the law. Under the DMCA, they are only required to provide a statement that they have a “good faith belief” that use of the copyrighted material is not authorized.
Recipients of takedown notices are generally ordinary members of the public. They are unlikely to have a legal background, yet they must respond to formal legal notice if they wish to make a counterclaim. Additionally, their counterclaim must include contact information – probably the last thing an individual wants to hand over to a company that is threatening them. Finally, and most problematically, the counterclaim must include a statement “under penalty of perjury” that the material was taken down in error. This contrasts with the much weaker “belief of good faith” that the initial takedown notice requires of the notifier. Many will shudder at the prospect of being found guilty of perjury. The end result is that most people will simply accept having their content removed, even if it was legal, such as under fair use.
This unbalanced nature of the system makes it prone to fraud, whereby people falsely claim to be the owner of copyrighted material in order to have it removed from a website. Among the millions of takedown requests stored in the Lumen database, Shreya Tewari — a Berkman Klein Center Research Fellow on the Lumen Project — found nearly 34,000 takedown notices that “appear to be attempted misuse of the DMCA Notice and Takedown Process”:
The records I found use the “backdated article” technique. With this technique, the sender (or copier) of the misrepresentation creates a copy of a “true original” article and backdates it, thereby creating a “false original” article (an article that is a copy of the genuine original) which at first glance seems to have been published before the real original. Then, based on the claim that this backdated article is the “original”, the copiers send a DMCA to the affected online service providers, alleging that the real original is the copied or “infringing” article and that the copied article is the original article – requesting the removal of the true original article. The sender of the unwarranted notice then removes the fake original URL after sending the DMCA request, presumably to ensure that the article does not remain online in any form. If the takedown notice is successful, it means the disappearance from the internet of information most likely to be legitimate speech.
The Lumen Database blog post contains some interesting statistics on these takedown notices: 34,000 takedown requests were sent by just 30 different notice senders, targeting 550 domain names, mostly news sites in line. The material targeted generally related to allegations of “misconduct, corruption, sexual harassment and other allegations against the same group of individuals”. It appears that the DMCA’s powerful takedown provision has been used to erase embarrassing news articles from sites around the world.
A whole industry called “reputation management” has sprung up to provide this type of service. Specialists use DMCA takedown notices to intimidate sites into somehow removing material that annoys the reputation management company’s client. According to a post on the Rest of the World website:
The industry has thrived, in part, due to the efficiency, ease, and low cost of complaints using the DMCA. Hosting providers often do not have the ability or interest to investigate every complaint, and under the law they can be held liable for contributing to copyright infringement, if later proven. , which can be very expensive. Often, they are content to comply with these requests.
The copyright industry’s success in achieving a DMCA takedown process so easy to abuse, particularly to silence voices and censor material, means that true and important information can be removed from the Web in a fraudulent and unjustified manner.
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Originally published on the Walled Culture blog.
Filed Under: back dating, censorship, copyright, dmca, reputation management, takedowns