Stemming the tide of DMCA abuse

copyright-symbolTo protect web-based services providers from liability for infringing content that is uploaded by users of their services, the Digital Millennium Copyright Act has established a set of notice-and-takedown-procedures. The Act provides that if a service-provider complies with DMCA requirements, it is insulated from liability for contributory infringement when a user uploads infringing content without the provider’s knowledge. To qualify, the provider must, among other things, promptly remove or disable access to content upon receiving a proper notification of a claim that it infringes a copyright.

Because of the ease with which this provision may be invoked, it is frequently abused as a way to suppress information and opinions even when no infringement has actually occurred. Google, for example, claims that a very large portion of the millions of DMCA notifications it receives every year are unfounded.

The Act provides for a cause of action against any person who knowingly makes false or misleading statements of fact in a take-down notification. Although attorney fees and damages are recoverable, this provision is not often invoked because most service-providers, bloggers and other website-service users do not find it worth the time, expense and effort to “make a federal case” out of this sort of thing. Instead, they usually take the hit, remove the content, and move on.

Until recently, that is.

In August, 2013 a student journalist named Oliver Hotham published an interview with Nick Steiner, the press officer for Straight Pride UK. That outfit had sent the interview to him in a document titled “Press Release,” which he then proceeded to publish on his WordPress blog. The blog post was clearly more sympathetic to LBGT rights than to Straight Pride UK’s cause. Straight Pride UK then used the DMCA’s notice-and-takedown procedure to try to force Automattic (the company that runs WordPress) to remove the interview. Automattic decided not to roll over this time. Instead, it initiated a lawsuit against Straight Pride UK alleging it was guilty of misrepresentation in connection with a take-down notice. This year, a district court in California entered judgment against Straight Pride UK for $1,860 damages and $22,264 in attorney fees.

Although the amount of the recovery is not significant, it may be hoped that it will serve as at least a small deterrent against the widespread abuse of the DMCA’s notice-and-takedown procedure to censor the free flow of ideas and opinions on the Internet.

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