Misuse of DMCA Takedown Notices: Censorship Over Copyright Protection
Crystal Broughan, Intellectual Property Attorney Jun 9, 2022 in Copyrights
Congress established the 1998 Digital Millennium Copyright Act (DMCA) in order to help regulate the usage of copyrighted material on the internet. It was meant to increase protection for both copyright holders and create a safe harbor for internet service providers – who would be frozen with lawsuits if held responsible each time a user posted infringing content without the website’s knowledge.
Today, we are facing a different problem stemming from misuse of the DMCA. Organizations have been employing the DMCA to create operative censorship online.
How Does DMCA Copyright Protection Work?
The DMCA was designed to incentivize businesses to both honor copyright licensing and stymie copyright infringement on the web. The process generally goes as follows:
- A copyright owner notices that their intellectual property is being used on a website without their permission, i.e. a song, photograph, piece of writing…
- The copyright holder sends a DMCA takedown notice to the service (usually the owner of the website, like YouTube), asking them to remove the material that infringes on the copyright.
- On a website with users – for example, YouTube, Instagram, Twitch – the service then informs the infringing user of this infringement claim.
At this point, the user has a few choices:
- They can remove the infringing content, i.e. deleting or muting a video with copyrighted music.
- They can file a counterclaim and explain why their usage is actually not infringement, i.e. arguing fair use.
- They can do nothing, leaving the material intact online.
In the last case, the user is often inviting more severe legal action from the copyright owner, unless the owner was not serious in their pursuit.
How Is the DMCA Being Used for Censorship Now?
Getting a DMCA takedown notice can be a scary experience. Especially for an individual who is not well-equipped with a legal team, you may just opt to remove controversial content rather than figure out whether or not you have infringed.
Some groups take advantage of this “easy way out” tendency of defendants. They may file takedown notices claiming that articles or reports are copyright infringement – when, in fact, these are real news pieces that reflect poorly on their organization.
The groups are hoping that creators and website services hosting these pieces will take them down rather than fight back. This can, in practice, eliminate much bad online press – without arousing free press suspicions.
Look out for this especially tricky trend: Fake claims of plagiarism through backdated articles. Some organizations create an article, make it seem as it if were posted earlier than a real piece, then send a DMCA notice to the person who posted the legitimate piece. After the individual takes down their legitimate work, they then delete the fraudulent article from existence once its purpose is served.
If you know for sure that you wrote something, and you receive a takedown notice showing a very similar or identical piece with an earlier date, know that this is the opposite of DMCA copyright protection – it is censorship. Because of this, it may be worth enlisting the help of an IP lawyer to investigate.
The Watch Tower Bible and Tract Society, of the Jehovah’s Witnesses religion, has also employed the DMCA for means outside IP protection. They were threatening DMCA-based lawsuits in order to issue subpoenas. Their underlying goal: To obtain the identities of reporters exposing unflattering stories about the group. This became evident as Watch Tower did not actually file lawsuits after procuring this initial information.
These are just two examples of DMCA abuse. So be vigilant and weigh your options if you receive a DMCA takedown notice. It takes shrewdness on the part of online journalists, IP legal experts, and judges to catch abusers in their tracks.