Here at EFF, we take particular notice of the way that intellectual property law leads to expression being removed from the Internet. We document the worst examples in our Takedown Hall of Shame. Some, we use to explain more complex ideas. And in other cases, we offer our help.
In terms of takedowns, 2020 prefaced the year to come with a January story from New York University School of Law. The law school posted a video of a panel titled “Proving Similarity,” where experts explained how song similarity is analyzed in copyright cases. Unsurprisingly, that involved playing parts of songs during the panel. And so, the video meant to explain how copyright infringement is determined was flagged by Content ID, YouTube’s automated copyright filter.
While the legal experts at, let’s check our notes, NYU Law were confident this was fair use, they were less confident that they understood how YouTube’s private appeals system worked. And, more specifically, whether challenging Content ID would lead to NYU losing its YouTube channel. They reached out privately to ask questions about the system, but got no answers. Instead, YouTube just quietly restored the video.
And with that, a year of takedowns was off. There was Dr. Drew Pinsky’s incorrect assessment that copyright law let him remove a video showing him downplaying COVID-19. A self-described Twitter troll using the DMCA to remove from Twitter an interview he did about his tactics and then using the DMCA to remove a photo of his previous takedown. And, when San Diego Comic Con went virtual, CBS ended up taking down its own Star Trek panel.
On our end, we helped Internet users push back on attempts to use IP claims as a tool to silence critics. In one case, EFF helped a Redditor win a fight to stay anonymous when Watchtower Bible and Tract Society, a group that publishes doctrines for Jehovah’s Witnesses, tried to learn their identity using copyright infringement allegations.
We also called out some truly ridiculous copyright takedowns. One culprit, the ironically named No Evil Foods, went after journalists and podcasters who reported on accusations of union-busting, claiming copyright in a union organizer’s recordings of anti-union presentations by management. We sent a letter telling them to knock it off: if the recorded speeches were even copyrightable, which is doubtful, this was an obvious fair use, and they were setting themselves up for a lawsuit under DMCA section 512(f), the provision that provides penalties for bad-faith takedowns. The takedowns stopped after that.
Another case saw a university jumping on the DMCA abuse train. Nebraska’s Doane University used a DMCA notice to take down a faculty-built website created to protest deep academic program cuts, claiming copyright in a photo of the university. One problem: that photo was actually taken by an opponent of the cuts, specifically for the website. The professor who made the website submitted a counternotice, but the university’s board was scheduled to vote on the cuts before the DMCA’s putback waiting period would expire. EFF stepped in and demanded that Doane withdraw its claim, and it worked—the website was back up before the board vote.
Copyright takedowns aren’t the only legal tool we see weaponized against online speech—brands are just as happy to use trademarks this way. Sometimes that can take the form of a DMCA-like takedown request, like the NFL used to shut down sales of “Same Old Jets” parody merchandise for long-suffering New York Jets fans. In other cases, a company might use a tool called the Uniform Domain-Name Dispute-Resolution Policy (UDRP) to take over an entire website. The UDRP lets a trademark holder take control of a domain name if it can convince a private arbitrator that Internet users would think it belonged to the brand and that the website owner registered the name in “bad faith,” without a legitimate interest in using it.
This year, we helped the owner of instacartshoppersunited.com stand up to a UDRP action and hold on to her domain name. Daryl Bentillo was frustrated by her experience as an Instacart shopper and registered that domain name intending to build a site that would help organize shoppers to advocate for better pay practices. But before she even had a chance to get started, Ms. Bentillo got an email saying that Instacart was trying to take her domain name away using this process she’d never heard of. That didn’t sit right with us, so we offered our help. We talked to Instacart’s attorneys about how Ms. Bentillo had every right to use the company’s name this way to refer to it (called a nominative fair use in trademark-speak)—and about how it sure looked like they were just using the UDRP process to shut down organizing efforts. Instacart was ultimately persuaded to withdraw its complaint.
Back in copyright land, we also dissected the problem of the RIAA’s takedown of youtube-dl, a popular tool for downloading videos from Internet platforms. Youtube-dl didn’t infringe on RIAA’s copyright, but the RIAA made the takedown claiming that because DMCA 1201 says that it’s illegal to bypass a digital lock in order to access or modify a copyrighted work and that youtube-dl could be used to download RIAA-member music, it should be removed.
RIAA and other copyright holders have argued that it’s a violation of DMCA 1201 to bypass DRM even if you’re doing it for completely lawful purposes; for example, if you’re downloading a video on YouTube for the purpose of using it in a way that’s protected by fair use.
Trying to use the notice-and-takedown process against a tool that does not infringe on any music label’s copyright and has lawful uses was an egregious abuse of the system, and we said so.
And to bring us full circle: we end with a case where discussing copyright infringement brought a takedown. Lindsay Ellis, a video creator, author, and critic, created a video called “Into the Omegaverse: How a Fanfic Trope Landed in Federal Court,” dissecting a story where one author, Addison Cain, has sent numerous takedowns to platforms with dubious copyright claims. Eventually, one of the targets sued and the question of who owns what in a genre that developed entirely online ended up in court. It did not take long for Cain to send a series of takedowns against this video about her history of takedowns.
That’s when EFF stepped in. The video is a classic fair use. It uses a relatively small amount of a copyrighted work for purposes of criticism and parody in an hour-long video that consists overwhelmingly of Ellis’ original content. In short, the copyright claims (and the other, non-copyright claims) were deficient. We were happy to explain this to Cain and her lawyer.
It’s been an interesting year for takedowns. Some of these takedowns involved automated filters, a problem we dived deep into with our whitepaper Unfiltered: How YouTube’s Content ID
Discourages Fair Use and Dictates What We See Online. Filters like Content ID not only remove lots of lawful expression; they also sharply restrict what we do see. Remember: if you encounter problems with bogus legal threats, DMCA takedowns, or filters, you can contact EFF at [email protected]
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2020.
The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights and freedoms are enhanced and protected as our use of technology grows. Visit https://www.eff.org
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