The Internet is full of every imaginable kind of speech – including speech that many people find offensive. One UK-based group that advocates “Straight Pride” (as opposed to, say Gay Pride) attempted to use US copyright law to take down a controversial online interview. Is copyright law the right tool to control online messaging?
I’ve written about a related topic before – see Using Copyright to Suppress Criticism? – but a recent case has advanced the law in a way that makes the subject worth revisiting.
The case is Automattic, Inc. v. Nick Steiner, in the U.S. District Court (which is a Federal court) for the Northern District of California. “Automattic” isn’t a typo – the company’s founder is named Matt. Get it?
Automattic owns WordPress.com, an online service that hosts the blog post you’re reading right now. Oh, and about 15.5 billion other webpages, as of this writing.
Oliver Hotham, a journalist, published an interview with Straight Pride U.K. on a site hosted by WordPress.com. He also published information from a Straight Pride U.K. press release. The post became controversial (possibly because the views advocated by any group calling themselves “Straight Pride” are bound to be despicable), and Nick Steiner, acting as the group’s press officer, asked Hotham to take down the article. Hotham refused.
Straight Pride then filed a Digital Millennium Copyright Act (DMCA) notice with Automatic requesting that the post be taken down on the grounds of copyright infringement.
Wait, What’s A DMCA Takedown Notice Again? Asking For A Friend…
Go to the “Terms and Conditions” of any website that hosts user-generated content and you’ll see some info about their DMCA takedown notice procedure. The idea is that if you own the copyright for some piece of content – written copy, images, videos, whatever – and you find that someone’s using it online without your permission, you can send in this kind of notice to the hosting service, and, most likely, the service will take it down.
This provides hosting services with what’s called “safe harbor.” The service can’t be sued directly for copyright infringement if they comply with the DMCA takedown procedure. Theoretically, if this safe harbor protection wasn’t in place, there would be no blogging, social media, or web hosting companies; they would all have been sued out of existence for inadvertent copyright infringement.
But remember: this law was intended to protect copyright owners whose content is being ripped off online.
OK, That Sounds Good, So What’s The Problem?
The problem is that a company like WordPress.com can’t personally review every single DMCA takedown notice it receives. Remember the 15.5 million webpages I mentioned above? So the result is that most sites will simply comply to these notices automatically (or automattically – get it? OK, moving on…)
The geniuses over at Straight Pride U.K. were able to figure out that this meant they could probably have the interview taken down based on a bogus copyright claim. The blog post was taken down, after which Hotham posted more content, and Straight Pride went back and forth with Automattic. This type of thing happens all the time, unfortunately, and in most cases, the legal costs are too high for anyone to fight the practice in court.
Fortunately, Automattic was actually willing to invest time and money into fighting Straight Pride’s abuse of the DMCA system.
[T]he Court finds that Defendant [Steiner, acting on behalf of Straight Pride U.K.] knowingly misrepresented that Hotham violated his copyright because Defendant could not have reasonably believed that the Press Release he sent to Hotham was protected under copyright. Moreover, there can be no dispute that Defendant knew, and indeed, specifically intended, that the takedown notice would result in the disabling of Hotham‘s article.
The Court awarded Automattic over $25,000 to cover certain costs and attorney’s fees. They did not, however, find that there was enough evidence or sufficient legal precedent to award damages to Hotham based on his alleged reputational harm, emotional distress, or chilled speech.
What Have We Learned?
Courts are willing to award damages where one can show abuse of the DMCA takedown process, but those damages are limited, and pursuing them requires an investment of time and substantial upfront costs. However, this case does provide a useful precedent that will hopefully discourage potential abusers of the system.