Setting the record straight in the DCMA - UK blogger censored by questionable use of US copyright law
August 14 2013
The Digital Millennium Copyright Act (DMCA) is sometimes criticized for creating more problems than it solves. Section 512 of the DMCA provides a mechanism for copyright owners to demand that Internet Service Providers (ISPs) remove unauthorized copies of their copyrighted works from the internet. If the ISP complies with the demand, it is immune from any future award of damages for direct or contributory copyright infringement. If the ISP ignores the demand, it loses this immunity. This system is intended to carefully balance the rights of legitimate copyright holders with the free speech interests of ISPs . . . that is, it carefully balances those rights when everyone is acting rationally and in good faith.
See the problem?
Of course, the problem is that everyone doesn’t always act rationally or in good faith. The DMCA takedown demand process, if misused, can become a cudgel for internet bullies to censor speech they don’t like. ISPs rarely investigate the merits of a takedown demand, choosing instead to immediately cave in and guarantee the avoidance of trouble…
The Censorship of Oliver Hotham
… Hotham published Straight Pride UK’s responses on his blog, which is hosted by WordPress. When the blog post started garnering attention, Straight Pride UK apparently became embarrassed by its responses and demanded that Hotham remove the post. When Hotham refused, the group sent a DMCA takedown notice to WordPress, evidently claiming that Hotham had violated the organization’s copyright by quoting its press release. WordPress, a US company with servers presumably located in the US, may have felt that it was potentially liable under US Copyright law because some of its actions occurred in the US could in theory be subject to suit because, arguably, part of any alleged infringement occurred in the US… According to Hotham, WordPress removed the offending post automatically without questioning the merits of the demand…
Setting the Record Straight on the DMCA
… According to the Guardian, a WordPress spokesperson agreed that Straight Pride UK was misusing the DMCA to censor speech it didn’t like, but the paper reported that WordPress had no choice but to disable Hotham’s post because “the DMCA contains a provision mandating any company to instantly remove material if they are informed it breaches copyright.”
So, according to the Guardian and/or WordPress, there’s nothing to be done, right? With all due respect, let’s set the record straight. The DMCA contains no such mandate. WordPress had (and still has) a choice. It can keep the post disabled and stay within the DMCA’s safe harbor, thus ensuring zero liability for damages. Or, alternatively, it could grow a backbone, reinstate the post and rely on the many other defenses available to it. These defenses include, duh, a slam-dunk fair use argument, express and implied license defenses, and protection under Section 512(f), which is supposed to punish bad faith takedown notices…