WordPress Goes Legal: Sues Over Two Egregiously Bogus DMCA Notices That Were Designed To Censor
from the kudos dept
We’ve talked in the past about the unfortunate situation in which there is almost no real punishment for bogus DMCA notices. Section 512(f) of the DMCA is supposed to provide a way to get attorneys’ fees, costs and damages for bogus DMCA takedowns. In practice, however, 512(f) has been almost totally neutered by the courts (not that it was ever strong to begin with). Lately, however, there have been a series of interesting 512(f) cases, in which people, including copyright expert Larry Lessig, have been dealing with clear attempts to censor protected speech.
Today, there’s a very interesting new entrant, fighting two separate cases to go after the senders of totally bogus DMCA notices that were solely designed to censor. Automattic, the company that runs the super popular blog hosting platform WordPress.com, has filed two separate lawsuits against egregious cases of DMCA abuse. These are actually two cases that we’ve written about as examples of using the DMCA to try to censor criticism. The first involved an attempt to remove a series of articles on the excellent RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of researcher Anil Potti. As we noted at the time, this appeared to be an egregious use of the DMCA to censor content that someone didn’t like. The second is the more recent example of the group Straight Pride UK giving an interview to student journalist Oliver Hotham, then deciding that they didn’t like the fact that they sounded like idiots in the interview, and tried to use the DMCA to take down the article which included the quotes they had willingly given to Hotham.
Automattic has teamed up with Ivan and Adam in one case, and Oliver in the other, to seek damages under 512(f). While the initial cases themselves are interesting, it’s doubly interesting to see Automattic itself get involved. Traditionally, the focus for 512(f) claims had been directly on the site owners, not the service providers. But Automattic’s General Counsel Paul Siemniski explains that the company feels that it needs to step up and protect freedom of expression and fight back against DMCA abuse:
Until there are some teeth to the copyright laws, it’s up to us – websites and users, together – to stand up to DMCA fraud and protect freedom of expression. Through these suits, we’d like to remind our users that we’re doing all we can to combat DMCA abuse on WordPress.com….and most importantly, remind copyright abusers to think twice before submitting fraudulent takedown notices. We’ll be watching, and are ready to fight back.
We’ll also be actively involved, on behalf of our users, in trying to change the law – both through court cases and in Congress – to make sure that everyone has the right to share their voice on the Internet without threat of censorship.
Kudos to Automattic for this move. It’s a step beyond what pretty much every other service provider who receives bogus DMCA notices has done. Automattic notes that a large part of the problem is that these situations aren’t anomalies. They happen all the time — and are frequently for improper reasons, such as for censorship and attempting to unmask anonymous bloggers.
We receive hundreds of DMCA notices and try our best to review, identify and push back on those we see as abusive. Our users have the right to challenge a DMCA complaint too, but doing so requires them to identify themselves and fill out a legally required form saying that they submit to being sued for copyright infringement in a place that may be far away. If they don’t, their content is taken down and could stay down forever. This tradeoff doesn’t work for the many anonymous bloggers that we host on WordPress.com, who speak out on sensitive issues like corporate or government corruption.
Given the history of 512(f) cases for “knowingly materially misrepresenting” a case of copyright infringement, these cases may be an unfortunately uphill battle. But, they could serve a few very important purposes. First, it will hopefully make people think twice about sending a bogus DMCA notice over a WordPress.com site, knowing that they may face a lawsuit. Second, at the very least, getting more cases on the books showing how toothless the law currently is to fight DMCA abuse hopefully will lead to the law being fixed, such that abusing the DMCA to stifle speech will have real penalties under the law.