(Ab)use of Copyright law as the tool of choice for censorship and reputation management
The purpose of copyright law is to induce and reward authors for their original work by extending property rights to the copyright holder and qualifying its reproduction. The two-fold rights this gives them includes primarily an economic right to derive financial reward for reproduction of their work, along with an ancillary moral right to prevent distorted reproductions of their work. Of late, however, there has been a shift in the use of copyright laws by copyright holders. Instead of fulfilment of economic objectives with the interest to protect original work, copyright holders weaponize copyright law as a tool to fulfil of non-economic objectives to vindicate non-copyright interests. This is often done to censor legitimate content, capitalizing on the fact that the copyright holders intellectual property was a part of the content itself, even though it may be insignificant to the final essence of the subject matter, or it may even qualify for fair use due to the purpose for which it was used. This article will discuss the motivation for individuals and business entities to shoehorn non-copyright claims within copyright law as opposed to any other speech regulation laws, share some examples of such copyright abuse for reputation management, and conclude by highlighting takedown transparency as a potentially useful next step in finding a way to rectify such complexities.
As early as in 2003, in the case of Video Pipeline v Buena Vista Home Entertainment, the United States Court of Appeals had acknowledged and predicted that the patent misuse doctrine (whereby patent holders abuse the exclusive right granted to them for purposes other than those provided lawfully through patent ownership) can also be extended to copyright and that this may subvert copyright’s goal to encourage creation and dissemination to the public of creative activity. ‘Reputation management’ of individuals and business entities by silencing criticism and other forms of legitimate speech has grown to become a significant motivation for misuse of copyright. This may be done to erase facts, skew the public narrative, and make information disappear that may be, as the Court of Appeal noted in the Video Pipeline case mentioned above, “critical of the copyright holder, their copyrighted good, or the industry in which they operate.”
There are defamation laws in place in most countries that serve to protect unwarranted reputation damage of individuals or corporations, where the damage is based on the publication of false claims as facts. Despite this, abuse of copyright law for reputation management is more prominent than the abuse of other speech regulation laws such as those regulating the press, privacy or defamation. This may primarily be for three reasons: first, that copyright law bypasses the defense of first amendment, because this defense is already accounted for within copyright law. As the US Supreme Court had noted in Golan v Holder in 2012, this is because copyright protects expression of facts and ideas but not the facts and ideas themselves. In this manner, protection of first amendment was already accounted for in drafting copyright law. Meanwhile for other speech regulation laws, such as defamation or privacy laws, first amendment is a defense and a balance of interests between both rights is carried out before a determination of legality is made. The lack of this in determination of copyright infringement makes copyright law an easier mode of enabling unlawful restriction of speech.
For example, Ares Rights, a reputation management company based out of Spain, has a history of sending false copyright claims to Google on behalf of Ecuadorian politicians, state owned televisions and even an ex-president. Between 2014 and 2016, various stories reported how anything remotely critical of the Ecuadorian government was faced with a copyright claim. For instance, a documentary critical of ex-president Rafael Correa was also met with a copyright notice sent by Ares Rights to Google on behalf of SECOM & ECTV, Ecuador’s state owner television network, which can be viewed in the lumen database here. The Lumen Database also revealed an interesting counter-notice filed by an Ecuadorian citizen from 2014 disputing the then-ruling political party’s allegation of copyright infringement for a critical tweet along with an image of an open letter that the party itself had made public. The original takedown notice sent by Ares Rights on behalf of the political party, available in the lumen database here, claimed that the reproduction infringed their copyright since it held the political party’s logo. This form of political commentary would almost certainly not withstand a defamation or other forms of speech regulation complaints by political and public figures, and thus reputation management companies tend to fall back on exploitation of copyright law to facilitate such takedowns, that cause chilling effect.
The second reason that copyright law is used as a tool for censorship more than any other speech regulation laws is that, copyright law does not have an actual malice standard, unlike most other speech regulation laws, including defamation. This makes it easier to use copyrighted work that is irrelevant or ancillary to the final output as a basis for a content removal request. In US defamation law, for example, the plaintiff must prove actual malice, i.e., that the defendant published false statement knowing that it was false or with reckless disregard to the truth, a standard first laid out in the Supreme Court’s landmark 1964 case of New York Times v Sullivan. The burden of proof for actual malice is on the plaintiff, hence making the defamation claim harder to bear to fruition. In the case of copyright law however, there is no such standard. In fact, the burden of proof for fair use is on the defense, and therefore perfectly legitimate content that uses copyrightable content for purposes that would likely qualify for fair use may be taken down upon the receipt of a copyright claim, without prior-consideration of whether the subject matter would qualify for the same.
For example, in early 2020, Dr. Drew, a celebrity doctor made various claims publicly about the apparent lack of severity of COVID-2019 such as it being a ‘press induced panic’ or that one was ‘more likely to die by hit by an asteroid than by COVID-19’. As seriousness of the virus grew, a YouTube channel by the name of Dr Droops made a video ‘Compilation of all the inaccurate contradictory things that Dr. Drew said about coronavirus’. Shortly after this, Dr Drew sent a copyright claim to YouTube, and the video was taken down. Along with this, Dr Drew commented on some of the tweets linking to the video that, ‘infringing copyright laws is a crime, hang on to your retweets or erase to be safe’. The aftermath of the legal action and takedown saw the Streisand effect in play, with the takedown leading to increased attention to Dr. Drew’s past comments. This led to YouTube reinstating the video and Dr. Drew’s apology.
It is likely that a video compilation of his comments made in public would qualify for fair use, but it was easier for him to weaponize copyright as a tool for removing the video, that was harming his public image and reputation, than to institute a legal defamation complaint, which would be much harder to establish. Even though the video in question was reinstated after publicity of the takedown, as per YouTube’s copyright transparency report published in December 2021, only 1% of all copyright-based removal requests (on ContentID) were disputed, and 60% of the disputed content was reinstated, and so it is likely that some legitimate content which did not violate copyright or likely qualifies for fair use, remains taken down. YouTube does not share content removal requests with third party research databases such as Lumen yet, and so unlike in the other takedown mentioned in this post sent to Google and Twitter, which could be verified through the takedown notices present the Lumen database, the same exercise could unfortunately not be carried out for YouTube.
Finally, the creation of safe harbor under section 512 of the Digital Millennium Copyright Act (DMCA), which certainly holds significant benefits for copyright holders and free speech online, also makes abuse of copyright claims easier. The safe harbor provision in the DMCA grants immunity to online platforms for third party content so long as the platform removes any copyright infringing content expeditiously upon receiving notice of its illegality. This standard, known as ‘notice and takedown’ is used by most online platforms, to remain immune from liability for third party content. Abusers of copyright law take advantage of these provisions by sending unfounded DMCA takedown requests to platforms, that platforms (especially the ones that receive more notices than it is possible to manually review and verify) comply with so that they may retain their safe harbor immunity. Moreover, as Eric Goldman and Jessica Sibley mentioned in their paper on Copyright’s Memory Hole, Section 230 of the Communications Decency Act, which provides carte blanche immunity to online service providers for third party content, also creates an exception for intellectual property claims, including copyright infringement claims. This makes copyright law a softer target for vindicating non-copyright claims.
For example, in 2016, Annabelle Narey, the head of a programme at an international children’s charity, posted a negative review of a building firm’s construction work on Mumsnet, a popular website for parents in the United Kingdom. Shortly after, an individual by the name of ‘Douglas Bush’ sent a DMCA notice to Google for delisting this review on Mumsnet since it was allegedly ‘copied’ from Bush’s original review on a different website. The DMCA by Bush is available in the lumen database here. However, Narey countered this claim and stated that hers was the original review. Since Bush’s review is no longer available online, it is probable that the review was backdated and the following DMCA notice was likely a tactic to remove legitimate content from Google since it was a negative review. Her counternotice is also available in the lumen database here. While Narey countered the infringement claim, very few DMCA takedown notices are met with counterclaims, even though seminal work by scholars Jennifer Urban, Joe Karaganis and Brianna Schofield in their paper on Notice and Takedown in Everyday Practice notes that at least 4% of DMCA notices, in their study of a sample size of DMCA takedown notices sent to Google Images, were completely unfounded and 28.4% raised some questions of validity. Thus, the relative simplicity with which DCMA can be abused for takedown of legitimate content, including bad reviews, is a major factor why it is weaponized as a tool for censorship.
From the examples stated above, it seems to be clear that the intended effect of abusive copyright takedown is unlawful censorship and this leads to over-blocking of content, which in turn results in a considerable chilling effect in the society. Goldman and Silbey argue in their paper on Copyright Memory holes mentioned above, that censorship through copyright or copyright abuse causes memory holes in the collective memory of people, like the one in George Orwell’s 1984, by “relegating the facts and ideas those works contain to persisting only in people’s memories” and making them “fade out of circulation” at first, and then eventually “fading away altogether”. Jeanne Fromer, in her paper titled, ‘Should the Law Care Why Intellectual Property Rights Have Been Asserted’ notes that the use of copyright to protect non-economic and non-market interests can “distort the intellectual property system and cause harm to the society”.
While copyright is being used as a tool to manage business and personal reputation on one hand, and this may frustrate the original intent of copyright law, on the other hand it has also been used by victims of non-consensual sharing of intimate images because of the promptness of takedown, and this is intuitively a more satisfactory outcome of copyright abuse. Even so, at the root of this phenomenon is an important question about whether the copyright framework being shoehorned to protect the reputation and dignity of the copyright owner in unlawful ways is causing chilling effect and if there is a way in which this abuse can be minimized, if not resolved.
An important and useful next step to minimize copyright abuse and to build data-informed policy on this issue may be to encourage online takedown transparency and increased disclosure mandates of takedown notices. While several major tech companies such as Google, Twitter, Wikipedia do share copies of the copyright-based removal requests that they receive with third party research platforms like the Lumen Project, YouTube, Facebook and TikTok are examples of some online platforms that do not yet share takedown notices. Availability of copyright removal requests for research, scholarship and journalism by services such as the Lumen Project has enabled critical research on notice and takedown in the past, and has shed light on the unlawful motivations for the abuse of DMCA. More useful data on takedown will certainly make way for better analysis, and is likely to be useful in creating better policies to regulate copyright infringement, prevent copyright silencing, and minimize abusive takedown.
Note: We are taking part in Copyright Week, a series of actions and discussions supporting key principles that should govern copyright law.
About the author: Shreya is a Research Fellow at the Lumen Project.