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

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