While some copyright maximalists are still insisting that copyright is never
used to censor anyone, it seems that every day we see more cases of it in action. The latest, as sent in by just about everyone, is that a group in the UK, called Straight Pride UK, who ridiculously go around claiming that homosexuals and their supporters are trying to silence heterosexuals, did an interview with a student named Oliver Hotham. He emailed them, telling them he was a freelance journalist with a list of questions. They responded by sending a document that included the answers to the question, and the document was entitled "press release." Hotham explains what happened next
About a week later they responded with an attached document with the title “press release”. I went through the questions, corrected the horrendous grammar, and organised it so it coherently answered the questions I’d posed. I also noted that two rather pointed questions I’d asked, regarding the problem of the bullying of LGBTI youth and the nature of other “pride” movements, had not been answered. I sent them an email about this, saying that I’d give them the opportunity to respond but, if they didn’t, I’d “make it clear in the article” that they avoided the questions. They didn’t get back to me for 2 days, which I thought ample time to write two sentences.
Fully satisfied that my journalism had made them look like the arses they are, I hit the publish button, and sat back, feeling all together really pleased with myself. I called the article “It’s great to be straight… yeah”, too, which I thought acutely summed up their philosophy and referenced a mid-90s dance album I rather like.
And, apparently having realized that they look like the "arses they are," the group did what any sniveling censorious jerks
would do, and sent a completely bogus DMCA takedown. At least they first warned Hotham that they were going to take this ridiculous step:
“It has been brought to my attention that you have published the email that I sent you to, you did not state this in your email request, nor you did have consent to do this.
I therefore request that you take down the article that you have placed on your blog.
You have 7 days in which to do this, failing this I shall submit a DMCA to WordPress to have it removed.
And then they did, in fact, send the DMCA takedown to Wordpress parent company Automattic, who took it down. There's been some anger at Automattic, but having dealt with Automattic a few times in the past, I know that they take this stuff very
seriously (perhaps more seriously than almost every other company out there) and work extra hard to weed through the bogus DMCA takedowns. But, it's a really difficult task, especially when you're inundated with DMCA takedowns. Once the story got attention, Wordpress admitted that it was a mistake
and agreed that this was a clear case of censorship via the DMCA.
Of course, the good news is that all of this censorious activity quickly drew much more attention to the article -- in fact, lots of sites reposted it and called extra attention to what a ridiculous bunch of people "Straight Pride UK" really are.
Still, this has people wondering, given how often we see censorship attempts like this fail, and end up getting more attention via the Streisand Effect, why does it still happen so often
. And, one troubling possibility is that this sort of censorship-by-copyright actually works much of the time, and it's only a small portion of the cases that generate so much attention. That's definitely a possibility. For obvious reasons, a lot of these types of stories get submitted to us, and we only have time to cover a small fraction of them. So there are definitely cases of bogus takedowns that just don't get attention. But, in some cases it's worse than that. That's because the only ones that do get attention are the cases where the person who is censored knows enough to speak out
. Many people who don't understand copyright law will get censored with bogus DMCA takedown notices and, because of the threats, the legal language and the big numbers (statutory damages!), will just shut up and be censored rather than risk anything. And from a personal liability standpoint, for many people, that's probably a perfectly logical -- if horrifically damaging to free speech -- position.
This is why the DMCA takedown process needs to have real teeth
behind punishment for bogus takedowns. It seems fairly clear to some of us that the current DMCA takedown process itself is a clear First Amendment violation
, in that it effectively requires content to be restrained prior to any adversarial hearing or review. A much more reasonable and non-censorious system would be a "notice and notice" system, in which the target of a DMCA notice is given a time period in which to respond before the content is removed. Combine that with real punishment for a bogus DMCA takedown notice, and you might finally be able to minimize the risk of the DMCA being used to censor.