United States: Setting The Record Straight On The DMCA: UK Blogger Censored By Questionable Use Of US Copyright Law

Last Updated: August 16 2013
Article by David A. Kluft

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 mounting pile of examples of casual misuse and intentional abuse of the takedown notice process has become the bane of free speech activists. For example, the Massachusetts case of Tuteur v. Crosley-Corcoran, involving allegations of bad faith takedown notices stemming from a on-line flame war between two bloggers, has been the subject of widespread attention and numerous amici. But the recent de facto censorship of Oliver Hotham should be added to the top of the pile.

The Censorship of Oliver Hotham

Oliver Hotham is a student at the University of London and a blogger who, on the occasion of gay marriage becoming legal in the UK, decided to interview the anti-gay rights group, "Straight Pride UK." In July, Hotham contacted the group, identified himself as a freelance journalist, and proffered a series of questions in writing. About a week later, the group responded with a press release addressing Hotham's questions. The response, infected by dozens of grammatical errors, supported "what Africa and Russia is [sic] doing [because] these country [sic] have morals," praised Vladimir Putin for his anti-gay policies and announced that the "Straight Pride Mission is to make sure the default setting for humanity is not forgotten and that heterosexuals are allowed to have a voice and speak out against being oppressed because of the politically correct Government." You get the idea.

On August 3, 2013, 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 (the Ninth Circuit and other courts have held that that Copyright Act only excludes "acts of infringement that take place entirely abroad"). According to Hotham, WordPress removed the offending post automatically without questioning the merits of the demand. Although WordPress subsequently gave Hotham a chance to respond, Hotham reports that he could not do so unless he consented to the jurisdiction of certain judicial bodies, which he would not do.

Setting the Record Straight on the DMCA

On August 13, 2013, the Guardian newspaper picked up the story. 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.

In WordPress' defense, lawsuits are expensive however strong one's defenses, and a single company can't be expected to use its own resources to combat every questionable takedown notice, especially when bloggers like Hotham won't step up to the plate and participate in the DMCA process. But how much immunity did WordPress really buy with its DMCA compliance? The damages from which WordPress is now immune would likely be nominal at best; after all, is there any market value for poorly written press releases? Furthermore, Section 512 offers immunity from damages, but not from injunctive relief. So, Straight Pride UK could still potentially sue WordPress, for example, to enjoin it from providing further internet access to Hotham under subsection 512(j).

But why would Straight Pride UK bother to file suit now – after all, the post is down, right? Not really. Hotham's original blog post is now available on several other WordPress-hosted sites, including here and here. Ironically, Straight Pride UK's attempt to censor Hotham's article from WordPress may guarantee it massive exposure on WordPress... but only on the sites of other WordPress bloggers.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions