As I mentioned in my post earlier today about the demon-haunted world of Gordon Klingenshmitt, people who want to write about controversial subjects online face a persistent problem: dishonest, thin-skinned, censorious people who are willing to abuse the Digital Millennium Copyright Act – or DMCA — to force hosts and writing platforms to take down content they don't like. We've seen it happen with a glassy-tongued poet and an over-sensitive lighting company that doesn't like negative reviews and even Ecuador, and we've even been the subject of a bogus DMCA demand ourselves filed by a wire-fraudster extortionist.
The DMCA does have a provision allowing a cause of action for bogus takedown demands, under Section 512(f):
(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Unfortunately, courts have been interpreting Section 512(f) narrowly to apply only to false statements of ownership of the copyright, as opposed to false statements that the targeted material is infringing. In other words, courts have often refused to use this section to impose consequences on censorious liars or fools who claim copyright infringement when faced with parody, satire, criticism, and other stuff clearly protected by fair use and the First Amendment. The Ninth Circuit, for instance, requires plaintiff citing this section to show that the DMCA takedown was subjectively, knowingly false — even if the person sending the takedown was objectively unreasonable and even if they didn't conduct a reasonable investigation. The music and movie industries would like to go further — they want to argue that the only thing you need to be truthful about in a DMCA takedown demand is your ownership of the copyrighted work, not the infringing nature of the target. The music and movie industry like that rule because (1) they don't want to spend money to hire competent or honest people to write DMCA demands for them, and (2) they are perfectly happy to deter satire, criticism, parody, reviews, and discussions if it makes it easier for them to fight the Great War on Piracy. That's why when the MPAA or RIAA complains their industries are dying, I'm tempted to ask how soon I can piss on the grave.
But even under the entertainment-industry-castrated version of Section 512(f), there are still opportunities to stomp censors. Today WordPress announced that it has filed federal lawsuits against two abusers of the DMCA. One defendant is none other than Nick Steiner, the head twerp of StraightPride, which resorted to a bogus DMCA complaint to make a false claim of copyright as to an interview to which it consented. The other defendant filed false DMCA demands against our friends at Retraction Watch, which has been subjected to numerous threats before. The Retraction Watch DMCA abuse was on behalf of the fake-Rhodes-scholar Anil Potti, previous subject of Patrick's wrath.
These suits fit into even the narrowed interpretation of Section 512(f) because both involve not just false statements about whether the targeted items are infringing, but false statements about the existence or ownership of the copyright in the first instance.
These will be lawsuits to watch. Mike Masnick, who has done good work on 512(f) issues, is on the case and his coverage will be worth watching. The Technology & Marketing Law Blog is another great source for Section 512(f) analysis.
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