Archive for the ‘DMCA’ Category

Please Help Stop SOPA

Saturday, November 26th, 2011


Something very bad may be about to happen to the internet.

The United States Congress, which is currently slightly more popular than the rabies virus, may be on the brink of passing the Stop Online Piracy Act, an outrage that attempts to placate big Hollywood content industries by selling out freedom on the internet.

I’ll be writing about SOPA (and PIPA, as it’s known in the Senate) in upcoming posts. Please take the time to educate yourself and call your representatives.

Also, consider adding a STOP SOPA badge to your website. Feel free to swipe them off of this blog – I handmade these (entirely independently), so I can and hereby do license them to you. And then link them to one of the many explanations out there for why SOPA presents such extreme peril.

Wendy Seltzer on the DMCA’s Effects on Free Speech

Friday, January 28th, 2011

The Harvard Journal of Law & Technology has published Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment [pdf] by Wendy Seltzer, a fellow with Center for Information Technology Policy at Princeton University.

Here is the abstract, taken from the draft version of the paper posted on SSRN.

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas. Yet under the DMCA’s pressure, the poster’s private incentive to counter-notify and the host’s incentives to support challenged speech are often insufficient to support an optimal communication environment for the public. Instead, this set of incentives produces a blander, but not significantly less copyright infringing, information space.

Copyright claimants assert that the expedited process of the DMCA is critical to suppress infringement in the highly networked digital world. While many instances of infringement are properly targeted for takedown under the DMCA, I argue that the accuracy of some takedowns does not excuse a careful examination of the rate and costs of error. I therefore recommend changes to the law to reduce the error, balancing speech protection and copyright.

Part I surveys the legal, economic, and architectural sources of the DMCA’s chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright’s place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

EFF White Paper on 12 Years of the DMCA

Friday, June 25th, 2010

The Electronic Frontier Foundation recently released a white paper titled Unintended Consequences: Twelve Years under the DMCA.

The paper includes a description of how the Digital Millennium Copyright Act (DMCA) was asserted by calculator manufacturer Texas Instruments against three bloggers who posted about how to hack a TI calculator. The legal threat under the DMCA was interesting because no alleged piracy was even involved.

The EFF also has issued a smart-looking pdf of the white paper.

YouTube is Cleared of Mass Copyright Infringement Claims

Thursday, June 24th, 2010

Courthouse of the Southern District of New York in Manhattan (photo by EEJ)

YouTube has triumphed in a grand copyright battle against media companies and content owners led by Viacom. The case is important not just for YouTube, but for all websites with user-generated content, including blogs allowing automatically posted comments.

Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York, granted Google’s motion for summary judgment against Viacom for all claims for direct and secondary copyright infringement. The opinion is available as an image-based pdf and in an html document format. Google, which owns YouTube, has posted the news of its victory on the Official Google Blog.

The Digital Millennium Copyright Act says that an internet service provider with “actual knowledge” of infringement loses the protection of the DMCA’s safe-harbor provisions. That makes the case seem pretty easy for Viacom. Everyone knows that YouTube hosts tons of infringing video clips. And of course Google knows it too. So doesn’t that mean that it’s a slam dunk and Viacom should win? Nope.

The court said, “Mere knowledge of prevalence of such activity in general is not enough.” An ISP’s immunity evaporates only when it has “knowledge of specific and identifiable infringements of particular individual items.”

The court explained what was at stake in the big picture: “To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.”

That means that going forward, the Viacom and other content providers, if they want their content scrubbed from YouTube, will have to do the policing themselves, sending DMCA take-down notices, at which point it will be YouTube’s responsibility to remove it.

The court continued, “The DMCA is explicit: it shall not be construed to condition ‘safe harbor’ protection on ‘a service provider monitoring its service or affirmatively seeking facts indicating infringing activity….’ Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.” (citations omitted)

Viacom has vowed to appeal.

Company Assisting Adult-Content Industry Sues Chicago College Student Over Anonymous Blog Posts

Thursday, June 3rd, 2010

Remove Your Content, LLC is suing a Chicago resident over blog posts. Remove Your Content, according to its complaint, “was formed to help combat copyright infringement and piracy on the internet. Plaintiff provides various services to its clients, such as searching for illegally uploaded content, sending Digital Millennium Copyright Act (DMCA) notices, and working with websites to remove the stolen content.”

The specialty of Remove Your Content is working with adult entertainment industry clients who believe their content is being hosted on other persons’ websites. The complaint accuses the Chicago-area college student of being behind anonymously authored websites such as, which criticizes Remove Your Content and its owner, including with regard to the use of takedown notices.

The student denies he is behind the blogs, and he claims in motion papers that evidence coming out of the Rule 26(a) disclosure proves that he is not the individual responsible for the critical blogs.

Remove Your Content’s allegations are, according to the student, based on information gathered through subpoenas sent to Google, AT&T, and a university.

In addition to questions on the merits, there is also a jurisdictional question. Remove Your Content filed the lawsuit in its home state of Texas. The defendant avers that he has never traveled to Texas prior to the lawsuit.

[This post was revised in a few minor substantive ways after June 3, 2010. My policy is to eliminate typo-type problems on an ex-post basis without notation; but where I change things around more than that, just for the sake of good record-keeping, I make a note. – EEJ]

Record Industry vs. Music Bloggers

Thursday, May 13th, 2010

Sometimes it seems like music industry lawyers act as deliberately and thoughtfully as a rock star wrecking a hotel room. Apparently they are now sending out DMCA takedown notices targeting music bloggers – whose self-appointed thankless task has been providing free publicity to a floundering industry. In an excellent post, Fred von Lohmann of the EFF has provided “Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship.”