For Would-Be Censors and the Thin-Skinned, Copyright Law Offers Powerful Tools

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Yesterday, we wrote about the importance of fair use as a safeguard for free expression. But all too often, fair use and other legal limits on copyright are not enough to stop copyright enforcement from serving as cover for silencing critics.

 Time and again, we see copyright claims getting textbook fair uses erased from the internet, taking particular advantage of the Digital Millenium Copyright’s (DMCA) takedown regime. 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.

Whether the presentations were even copyrightable was doubtful. And even if they were copyrightable, using such material to verify and strengthen news reporting is a textbook example of fair use. The public not only has an interest in this information; being able to hear the sources also helps us determine for ourselves how accurate the reporting is. By trying to silence critics using copyright, No Evil Foods was setting itself up for a lawsuit for its bad-faith use of the takedown system. So we sent a letter telling them to knock it off, explaining all of this in clear terms. The takedowns stopped after that.

In other cases, we see copyright claims invented out of thin air—the takedown target didn’t even use any copyrighted material from the claimant. In 2020, 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 the legally required 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.

A few months earlier, we saw a self-described Twitter troll using the DMCA to remove tweets about an interview he did because he did not like the results. Then, when his target tweeted about the takedown, he used the DMCA to remove the photo of the takedown notice.

And in one exceptionally egregious case, the U.S.-Nigerian investigative news agency Sahara Reporters became the target of a campaign of surveillance, cyberattacks, and DMCA takedowns meant to frustrate their critical journalism activities. There, the perpetrator copied the text of Sahara Reporters’ own article, reposted it in a back-dated blog post, and sent a takedown demand to their website host. Our lawyers were able to jump into action to represent them in filing a counter-notice, but their experience shows how easily copyright can be used in coordinated attacks on free speech and political activity.

Apart from bogus DMCA takedowns, bad-faith actors also use copyright lawsuits as a way to unmask anonymous critics, whether to identify them for retaliation or to intimidate them into silence. Because the DMCA gives platforms incentives to turn over users in order to not be the targets of lawsuits, it’s a great tool for unmasking anonymous criticism. 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.

You may be wondering, why is copyright law so appealing as a censorship mechanism? A key factor is how easy it can be to exploit. Typically, U.S. law erects high barriers for restrictions on speech. But copyright is an outlier. The DMCA’s notice-and-takedown framework gives rightsholders (and anyone who claims to be a rightsholder) tremendous leverage to have content taken offline based on no more than an email or a web form submission. (The rise of automated copyright filters makes this easier than ever.) That copyright holders have a legal tool to get speech removed from the internet without ever setting foot in court is an anomaly in our legal system and an extraordinary advantage. No other area of law gives aggrieved parties this type of leverage to obtain extrajudicial resolution of their complaints.

The law does provide ways for internet users to fight back against abusive takedowns, including counternotice procedures and lawsuits for bad-faith takedowns. Yet the shortcomings of these options—waiting periods, high burdens of proof, the expense of litigation—mean that plenty of incentive remains for DMCA abuse. At EFF, we’re doing what we can to change that. If you think you’ve been the target of abusive copyright claims, reach out to us at [email protected].