The Digital Millennium Copyright Act was passed by Congress in 1998 to provide relief for copyright holders dealing with infringement in the new age of digital media where the internet has made reproduction and distribution of information so easy. Unfortunately, current application of the DMCA verges on chilling the free speech of individuals online.

When a copyright holder wishes to use the DMCA to take down material that he believes infringes on his copyright he must first notify the internet service provider (ISP) or host of the targeted content. Next, the ISP must expeditiously remove or disable access to the material, either by removing a blog post or by taking down the entire website. Content uploaders who think their material did not infringe can file counter-notifications alerting the ISP that the material may be legitimate. Then, unless the original copyright holder seeks a court-ordered injunction, the ISP re-enables access to the material or website between ten and fourteen business days later. Content uploaders may also seek recourse under 17 U.S.C. § 512(f), which allows for monetary damages upon showing that the takedown was the result of material misrepresentations by the party alleging infringement. Courts have rarely found for content uploaders under this section, however.

Recently, the DMCA has been used rather aggressively to remove material from the internet that may merely upset a copyright holder without any actual infringement. A federal court case in Massachusetts provides an example. There, Dr. Amy, who blogs at The Skeptical OB, found herself in a cyber-fight with another blogger, Gina, of the Feminist Breeder. Gina posted a picture of herself gesturing at Dr. Amy and inviting the OB to “bring it back to your blog and obsess about it.” After reposting the image along with significant commentary, Dr. Amy found herself bombarded by DMCA takedown requests, and she was eventually forced to move her website to new hosting service providers several times. Interestingly, Gina, who filed the takedown notices, bragged about her tactics and her intent to silence Dr. Amy.

Dr. Amy eventually brought the case to court, arguing that Gina violated § 512(f) by materially misrepresenting her takedown claim. Dr. Amy asserted that Gina knew that the content did not violate the DMCA – instead falling under exceptions such as fair use or implied license – and pressed on regardless, attempting to stifle Dr. Amy’s speech. Both parties garnered significant attention. The Motion Picture Association of America and Electronic Frontier Foundation each submitted amicus briefs. In the end, the court held that requiring copyright holders to possess a good faith belief that the alleged infringement was not made in fair use or any other statutory exceptions to copyright infringement would render the DMCA takedown process slow and burdensome. Unfortunately, this effectively condoned this aggressive use of takedown notices. The problems multiply when takedown notices are automated and sent in large volume by groups like the MPAA. Without analyzing whether content fits into a statutory exception (like fair use under § 107 of the Copyright Act), these large organizations can systematically target the far corners of the internet, forcing bloggers, aggregators, and others to constantly monitor their websites, issue counter -notifications, and sit idly by as their content is hidden or disabled for weeks – all while they have done nothing wrong under the statute.

This issue raises important First Amendment free speech concerns. By using the courts to enforce a statute that condones the removal of perfectly legal, statutorily permissible speech, issuers of takedown notices are chilling the free speech of individuals. Those abiding by the law should not have to bear the costs of switching hosting services, filing counter-notifications, and losing viewers while their content is censored.

Do you think this aggressive use of the DMCA should be allowed to continue? Let us know in the comments!

–Zach Altman

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