In our drag-and-drop tool, our first question asked participants to rank a set of 6 priorities: 1) protecting free expression; 2) clear and simple rules; 3) rules made democratically; 4) compensation for creators and artists; 5) privacy safeguards; 6) and protection for media conglomerates. Participants were instructed to rank their priorities in ascending order, with 1 indicating the highest priority and 6 representing the lowest priority.
These thousands of citizen-advocates have good reason to be concerned about the priority placed on free expression in the design of our copyright laws. In the most extreme cases, copyright law can have such chilling and punitive effects on free expression that it acts as a form of censorship. Unfortunately, as we will explore further in this section, cases with extreme, unintended consequences are becoming more and more common under copyright regimes like the takedown provisions of the US Digital Millennium Copyright Act (DMCA), the original incarnation of France’s HADOPI Law4 or Finland’s Lex Karpela,5 or that envisioned in leaked drafts of the TPP.6
Box 2: Say No to Internet Censorship: Action Text
Dear Heads of State:
1. Protect the right of everyone to access the Internet in their daily lives.
2. Do not force ISPs to act as “internet police” monitoring our Internet use, censoring content, and removing whole websites.
3. Preserve the democratic rights of sovereign countries to draft their own copyright laws.
Because of the nature of notice-and-takedown regimes, (as seen in the United States, the United Kingdom, Australia, and Singapore, among others) where content hosts must remove content immediately upon receipt of a notice from a purported copyright holder to protect themselves from legal action, and there are few to no consequences in practice for false notices, copyright holders can easily use weak or non-existent copyright claims to silence political speech that wouldn’t otherwise be as vulnerable to censorship. For example, NBC Universal removed a viral clip of U.S. Senator Elizabeth Warren shutting down a CNBC co-anchor,7 and deleted an Obama campaign video because of a copyright complaint.8 Multiple news networks such as CBS News, the Christian Broadcast Network, and Fox News launched DMCA notices on John McCain’s presidential campaign ads in 2008,9 while BMG Management Group used a DMCA claim to take down a campaign video for presidential candidate Mitt Romney, in which President Obama sings a few bars of “Let’s Stay Together.”10 These were not singular examples; in fact, in 2010, the Centre for Democracy and Technology produced a white paper detailing the threats that “meritless copyright claims” from both sides posed to online political speech during the 2008 US presidential election.11 Such abuses are certainly not limited to the American context: a recent example from South America saw several Ecuadorian officials targeting documentaries, tweets, and search results that include images of those officials for illegitimate takedowns.12
In another worrying example of censorship of political discourse, voting software company Diebold used cease-and- desist letters and the DMCA to force grassroots activists to take down leaked internal documents from the company.13These documents included “statements that appear to suggest many continuing security problems with the software that runs the system, and last-minute software changes that, by law, are generally not allowed after election authorities have certified the software for an election.”14 Diebold was using a dubious copyright claim to try to silence public debate about voting, and cover up evidence of its own malfeasance.
Among the accused activists were two college students who were unwilling to be silenced. In partnership with the Electronic Frontier Foundation (an Internet freedom advocacy group and Fair Deal coalition partner), they successfully sued Diebold, which was ordered to pay damages (the software company paid $125,000).15Unfortunately, the Diebold case is the exception that proves the rule: most fraudulent copyright claims will never result in penalties for the offending rights holder.
In a presentation for a US House of Representatives Subcommittee, Paul Sieminski, General Counsel for Automattic, a blogging platform with 48 million websites attracting approximately 400 million visitors and 13.1 billion page views each month, discussed Automattic’s own efforts to hold fraudulent copyright claimants accountable, telling subcommittee members:
“While there are statutory damages for copyright infringement (even if very minor) there are no similar damages, or clear penalties of any kind, for submitting a fraudulent DMCA notice. The lawsuits that we filed represent the only recourse for abuse of the DMCA takedown process. The lawsuits were expensive to bring, time consuming to prosecute, and promise very little in the way of compensation in return. We brought these lawsuits, alongside our users, to protect their important free speech rights and send the message that abuse of the DMCA process has consequences (at least on WordPress.com).￼Cases like these are extremely rare, and I’m confident in saying that the users would not have the time, resources or sophistication to bring the suits on their own. The DMCA system gives copyright holders a powerful and easy-to-use weapon: the unilateral right to issue a takedown notice that a website operator (like Automattic) must honor or risk legal liability. The system works so long as copyright owners use this power in good faith. But too often they don’t.”16
As Sieminski pointed out, Automattic has 251 staff including only one lawyer, and a team of seven people just to respond to DMCA takedown notices, of which they received 825 in the month preceding Sieminski’s testimony.17 Misused DMCA notices to Automattic included but were not limited to: a physician demanding removal of newspaper excerpts by falsely claiming to be a representative of the newspaper; an international corporation seeking removal of images of company documents posted by a whistleblower; a frequent submitter of DMCA notices seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices;18 and, most disturbingly, a scam in which someone tried to undermine the work of science journalists by copying their work, backdating it, and claiming copyright in order to take down the original content.19 Automattic also made headlines when Straight Pride issued a takedown notice for an interview posted on Automattic’s blogging platform Wordpress.com, in which Straight Pride, a heterosexual pride organization, spoke favourably about Russian President Vladimir Putin’s crackdown on gay rights.20
Clearly, participants in the “Our Digital Future” project have every right to be worried about free expression: the abuses of copyright policy for the purposes of censorship are too numerous to list here, and are not just limited to political speech – they extend even to deleting opinions, feedback, reviews, criticism, or opinions the complainant simply doesn’t like.21 When, as Paul Sieminski points out, the targets of a takedown notice can only protect their free expression rights through recourse to the criminal justice system, which requires significant time and resources, the threat to freedom of expression is grave and urgent. Far from allowing this copyright censorship to spread via the TPP (Box 3), we need to take immediate action to protect free expression and limit copyright abuses.
Box 3: Internet Service Providers and the Trans-Pacific Partnership Agreement
“The [leaked] draft chapter of the Trans-Pacific Partnership Agreement on Intellectual Property insists that signatories provide legal incentives for Internet Service Providers (ISPs) to privately enforce copyright protection rules. The TPP wants service providers to undertake the financial and administrative burdens of becoming copyright cops, serving a copyright maximalist agenda while disregarding the consequences for Internet freedom and innovation.
TPP article 16.3 mandates a system of ISP liability that goes beyond the US Digital Millennium Copyright Act (DMCA) standards and US case law. In sum, the TPP pushes a framework beyond ACTA and possibly the spirit of the DMCA, since it opens the doors for:
- Three-strikes policies and laws that require Internet intermediaries to terminate their users’ Internet access on repeat allegations of copyright infringement
- Requirements for Internet intermediaries to filter all Internet communications for potentially copyright-infringing material
- ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement
- Efforts to force intermediaries to disclose the identities of their customers to IP rightsholders on an allegation of copyright infringement.”
From “TPP Creates Legal Incentives For ISPs To Police The Internet. What Is At Risk? Your Rights” by Kurt Opsahl and Carolina Rossini, August 24, 2012, eff.org
“The leak of the Trans Pacific Partnership intellectual property chapter generated global coverage as full access to the proposed text provided a wake-up call on U.S. demands and the clear opposition from many TPP countries. [...] ISP liability in the TPP is shaping up to be a battle between Canada and the U.S., with countries lining up either in favour of a general notification obligation (Canada) or a notice-and- takedown system with the prospect of terminating subscriber Internet access and content blocking (U.S.).”
From “The Trans Pacific Partnership IP Chapter Leaks: The Battle Over Internet Service Provider Liability” by Michael Geist, November 13, 2013, michaelgeist.ca
Fortunately, notice-and-notice regimes like the one formalized in Canada through Bill C-11, which requires that online service providers notify subscribers when a potential rights holder has submitted a notice claiming copyright infringement,22 have proven to be effective at preventing repeat copyright violations. Under the notice-and-notice system, in 2006 the Business Software Alliance sent out 60,000 notices and reported they have been “most effective.”23The Entertainment Software Association of Canada reported in 2010 that 71 percent of notice recipients do not reinfringe.24 Internet service provider (ISP) Rogers noted in 2011 that only five percent of subscribers receive notice, and that 68 percent stop infringing after only one notice, 89 percent after two notices.25 As Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law, notes: “If there are a couple of outliers in the population – the Rogers data showed about 1 in 800,000 at the extreme end of the spectrum of several dozen notices to a single household – there is absolutely nothing to stop the rights holder from taking legal action against those individuals. There is no need to threaten tens of thousands with cutting off Internet access, when rights holders are perfectly capable of taking action against the (literally) handful of people that repeatedly infringe at the extreme end of the scale.”26
Given the effectiveness of notice and notice, and the reality that copyright laws are being used as a new censorship tool, the consensus of experts and civil rights advocates in the Fair Deal coalition is that notice-and-notice regimes better protect the interests of Internet users. In an open letter to Ministers and lawmakers of TPP negotiating countries, the coalition has called either for the wider implementation of notice-and-notice regimes, or judicial involvement in the takedown system, to ensure the application of due process.27
Attention to due process, privacy rights, and the presumption of innocence are essential to prevent censorship in the name of copyright law. Allowing rights holders an unfettered ability to take down material on a whim encourages abuse of the law; such a regime is detrimental to the health and vitality of global public discourse.