Leftward Thinking

This post is really a continuation of Threats to the Declaration of the Internet: Expression (Part 2: Institutional). Below is an excerpted introduction from that post and then we’ll jump right in.

The past several posts here have looked at the recently released Declaration of Internet Freedom (rundown here) and threats that it faces. In the last post we looked at how the Expression principle is constantly being objected to in the United States on morality grounds. Today we’ll look at an even greater threat to expression on the internet which is the financial and institutional forces that look to censor speech online. These forces mainly come from governments and corporations. Both forces are clearly intertwined, as money and power often go hand in hand, but we’ll distinguish between the two here because each of their manifestations pose seperate challenges.

Financial Forces (i.e. corporations)

As the Internet threatens traditional business models from music labels, to publishing houses, to the post office, to cable TV packages, to libraries etc. many currently powerful corporations look to use any means necessary to stay in power and prevent competition from rendering them obsolete. This issue leads both to the suppression of innovation online as well the squelching of many peoples’ speech online. The innovation and expression principles of the Declaration of Internet Freedom are so closely linked that I’ll talk about some examples in this post, that are more about speech, and many more closely related examples related to innovation in Threats to the Declaration of the Internet: Innovation

Libel/Defamation

One legal tool that has always been available to censor speech, and is now being used in the online context, is defamation law. I won’t get into the nitty gritty of what constitutes defamation, though you can here, but basically it is illegal to publish known falsehoods about someone in some cases (the EFF breaks it down nicely here). This tool has often been used to try to silence criticism and with all the criticism voiced online, in blog posts and other content, many online individuals and organization has become targets. You can imagine how someone might write something offensive online and then get sued so I won’t spend too much time on the topic but here are a couple examples.

• Comedian sued for defamatory domain name.
• TechDirt Threatened with defamation suit for article on movie royalties.
• Watchdog organization sued for exposing someone’s false resume.
• Twitter sued for someone’s tweet.
• Authors of consumer complaints sued for defamation.
• District court fines blogger $2.5 million for blog post critical of a lawyer.
• Blogger sued for linking to an article that may have been defamatory.
• Facebook post and blog entry about judicial endorsement held to be defamatory.
• Forum thread sued for discussing political cartoon

As Techdirt writes in last article on the list above.

This practice is not unique to Barstow, and it’s why we end up covering so many cases of chilling effects that come about due to the misuse of both copyright and defamation threats. My general sense is that a lot of people don’t understand either law very well, but recognize that both can be used to demand criticism be silenced.

While the legal process generally does a good job at protecting people from ridiculous defamtion claims, many times the threat of a lawsuit alone is enough to have the speech removed from the web.

Copyright and the DMCA Intro

One form of internet censorship which many users are familiar with is the system of items being taken offline for copyright violations. In the United States this is mostly done by what are know as DMCA takedown notices. This system was created in 1996 when, in order to comply with WIPO treaties, the United States passed the Digital Millennium Copyright Act. Part of the issue tackled in this law was that online service providers (a broad term that includes Youtube, Facebook, Dropbox etc) often times hosted content posted by users that infringed on someone else’s copyright. Copyright owners felt that while the offending user was clearly guilty of copyright infringement, the online service provider was also responsible for secondary infringement because they help facilitated the infringement. In order to prevent services like YouTube from being legally responsible for all the infringing content posted by their users, the DMCA put forth rules that, if followed, would exempt online service providers from being sued for secondary infringement and give them what is known as safe harbor.

Below is an abridged explanation from Wikipedia of the DMCA notice and takedown process

1. Alice puts a video with copy of Bob’s song on her YouTube.
2. Bob, searching the Internet, finds Alice’s copy.
3. Charlie, Bob’s lawyer, sends a letter to YouTube’s designated agent (registered with the Copyright Office)
4. YouTube takes the video down.
5. YouTube tells Alice that they have taken the video down.
6. Alice now has the option of sending a counter-notice to YouTube, if she feels the video was taken down unfairly.
7. If Alice does file a valid counter-notice,YouTube notifies Bob, then waits 10–14 business days for a lawsuit to be filed by Bob.
8. If Bob does not file a lawsuit, then YouTube must put the material back up.

At first glance the system seems pretty fair, copyright owner finds material, service provider takes it down, poster can appeal. However there are several key flaws. First, the system functions on an act first (take the content down) ask questions later. In practice there is no penalty for content owners to send multiple faulty or unsubstantiated takedown notices, however if ‘Alice’ wishes to have her content put back up she must file her counter-notice under the penalty of perjury that she is not infringing on copyright law (something only a judge can determine). Even if ‘Alice’ does go through the paperwork to file her counter-notice she must wait 10–14 business days to hear back the from the entity that filed the original takedown before her content can be restored online. In essence, anyone can have content they don’t like taken down and it will either stay down, if the uploader does not know how file a counter notice (or is afraid to do so, due to perjury), or will remain down for 10–14 business days while a submitted counter notice awaits a possible lawsuit from the original litigant. This allows for rampant abuse from organizations that could benefit from the temporarily silencing of speech, say right before an election, or after an embarrassing news event.

A more in depth review of the process can be found here, and very good introductory review of the problematic issues discussed above can be found here.

Youtube, Fair Use?

Most members of the public are probably most familiar with the effects of the DMCA via Youtube where you find that the video you are requesting has has been removed. Of course not every video that Youtube takes down infringes on copyright but in order for Google qualify for DMCA safe harbor, and protect itself from liability, it must remove the video and wait for the original uploader to volunteer themselves to potentially go to court against giant corporations like Viacom, something very few individuals are willing to do.

An example message from a taken down Youtube video.

Many of the videos taken off of Youtube may either not contain any copyrighted material at all, and have takedown notices sent about them for ulterior motives, or do contain some copyrighted material but may be doing so in fair use way.

Fair use is what allows musicians to make parody songs, teachers to show video clips in class, journalists to take excerpts or quotes from other articles and many other common activities that in some way involve copyrighted material. However fair use is a complex legal doctrine that is used as a defense in copyright litigation and the only way to know for sure if a work is covered under fair use is to go to court and have a judge decide. Often times the threat of litigation by a copyright owner is enough to silence the speech of the ‘infringer’ even if a judge may decide the case in favor of the defendant’s fair use .

Fair use is the key to understanding which things that users do online, and in physical world for that matter, infringe on copyright protections and which do not. Again however applying fair use to a specific case is a subjective defense that relies on the precedent of case law and can only be decided by a judge or jury. I would encourage anyone interested to read over the Wikipedia entry on Fair Use as a starting point to understand what might count as fair use and what might not. Another interesting resource is Youtube itself which tries to offer some documentation on fair use, as well as Chilling Effects’ offers Q&A on the topic.

Below are some other fun and interesting tidbits around Youtube, the abuse of DMCA, and fair use…

• A viral parody video meme gets taken off of youtube and a new instance of the meme is made to describe it’s fair use (VIDEO)
• An explanation of fair use using copyrighted Disney clips in a fair use way (VIDEO)
• A big fair use win in court over dancing baby video
• Copyright office points to a video example of fair use, the video then gets taken down by a DMCA takedown notice
• An in depth discussion about Youtube and video takedowns (VIDEO)

Certain big corporations have a history of over zealously sending takedown notices (more examples of absurd takedowns here) to any video they think infringes on their copyright, and to make matters worse Youtube now employs an automated Content-ID system that doesn’t take fair use into account at all (despite the fact that a court ruled in 2007 that fair use must be taken into account). For more info on the added censorship brought on by Youtube’s Content ID system check out TorrenFreak’s write up here.

Updated: A shocking and disheartening development in fair use and Youtube was recently discovered. Youtube will not put your video back up even if it is fair use, if it contains material from the Universal Music Group (Torrent Freak Article). Youtube has no legal requirement to allow all legal content to be posted (for example it bans certain types of legal videos that depict violence of nudity) but it this case it is giving that discretion to companies like UMG to help them protect their business models from competition.

Day to Day at Google Search with DMCA Takedowns

Just as Youtube videos can be removed from Youtube, so too can search results be removed from Google Search. In the last month Google was received over 18 million requests to have links removed from it’s search results. This week alone Google has received 4.5 million requests, more than double the 2.2 million requests it received for the same time period just last year.  Needless to say with millions of requests every week, some of these requests end in the takedown of perfectly legal material (the reason being that if Google fails to comply with even one valid request it loses it’s safe harbor and opens itself up to being shutdown by the courts for inducing copyright infringement).

Techdirt wrote a brief article DMCA Notices So Stupid it Hurts, and the EFF published a post Top 10 Takedowns in Google’s Transparency Report, both of which highlight some of the most egregious takedown notices to Google Search that have been detected within the tens of millions of requests. A couple examples are listed below.

• Microsoft tried to takedown a report by Chilling Effects that discusses the pitfalls of the DMCA takedown system.
• HBO tried to takedown the Spanish language Wikiepedia entry for Game of Thrones.
• Sony tried to takedown a wikipedia page for Girl With the Dragon Tattoo.
• Warner Brothers tried to take down the IMDB page for Wrath of the Titans.
• Fox ordered a takedown of a 50 year old high school website that shared it’s name with a recently released Fox TV show.
• A Techdirt article about the dangers of the DMCA was also targeted by a takedown notice.
• The RIAA sent a takedown of an AOL Music review of a Lady Antebellum album

Google itself has stated that 57% of takedowns were businesses targeting their competitors and 37% were not valid copyright claims. Clearly the process has flaws and is being used in an aggressive way to hide search results of legal content from the public to that certain companies want to hide.

Automated Takedown Notices

A recent wrinkle in the DMCA takedown abuse story has been the advent of notices being sent out by automated systems. Without penalty for unwarranted takedown notices these automated takedown systems have only increased the amount of abuse (Note: I won’t get into Youtube’s controversial automated Content ID system in this section). Not only have these automated systems lead to a skyrocketing in the number of takedown requests, but it also takes advantage of a seeming legal loophole. In Lenz v. Universal Music Corporation the judge ruled that sending a takedown notice could be illegal if one could prove that it was sent in ‘bad faith’, these automated systems add a layer of defense to corporations who can now claim that the unwarranted takedown notices were sent unintentionally.

This issue has come to the forefront in Hotfile’s suite against Warner Brothers, a spat where Warner Brothers had sent thousands of takedown notices to Hotfile for files Warner Brothers had no copyright claim to. Not only has Warner Brothers admitted to these false takedown notices but it has also become clear that not all of these notices were sent out by Warner Brothers’ automated system but that individual Warner Brothers employees used DMCA takedown notices to target legal software that they viewed might compete with their own business model. This example is only one of many where automated tools, and over aggressive content owners use the DMCA to stifle free speech.

operation In Our Sites

While the DMCA clearly has its failings which have been exploited and abused, the DMCA was at least drafted with the idea of online copyright issues in mind. Another avenue which lobbyists have used to limit free speech online has strangely enough been the department of Homeland Security’s Immigration and Customs Enforcement (ICE) division.

Citing their authority to prevent counterfeit goods from entering and being distributed within the US, ICE has been working closely with the RIAA and the MPAA to identify and seize domains that the industry wants taken down. One of these more infamous campaigns began in 2010 and was known as Operation In Our Sites. The idea behind the campaign was that ICE would limit online piracy be seizing domain names and redirecting them so that visitors would see a message from ICE about why the domain had been seized. However this tactic has several problems.

First, as a technical and practical matter, ICE doesn’t actually take down the website it simply seizes the domain name. This means that a targeted website like onsmash.com could simply register freeonsmash.com to get around ICE’s “block”. This simple workaround meant that loyal and determined users of targeted websites could easily find the new domain name for the site and continue using the site just as before. Clearly this tactic is not effective in deterring “internet pirates” the way ICE sought to do. However it is worth noting that websites targeted by ICE in this way did lose large amounts of their casual non0technical audience when their domain names were seized.
Second, and more importantly, while many of the sized domain names were taken down for alleged copyright infringement, ICE completely ignored laws already in place to handle these issues (namely the DMCA). Instead of filing notices to website to take down specific copyright engineering material, ICE would essentially take down the entire site with no process for appeal.

Third, and equally troubling, was that ICE was being fed these lists of sites by industry lobbying groups like the RIAA, and in essence became an enforcement arm for these organizations to take down sites they did no like.

One example of this blatant and brazen partnership between ICE and the RIAA to work outside copyright law to take down “enemies” of the music industry is the case of dajaz1.com. This case has been well documented and you can read more about it here at EFF, TorrentFreak, Ars Technica, The New York Times, Wired Magazine and Techdirt but to summarize what happened the RIAA urged ICE to seize dajaz1.com alleging that it was a criminal enterprise, ICE obliged in seizing the domain name and held onto it for more than a year while waiting for the RIAA to present evidence that the site was in fact criminal. RIAA was unable to present any evidence however and after stonewalling appeals by the original owners of the domain name for a year, ICE returned the domain to it’s owners without comment. This astounding seize first ask questions later approach driven by lobbying efforts from the RIAA is clearly problematic and has been a creative effort by industry interests to to squash free speech that they perceive as threatening to their existing business model.

Some other horrifying examples of Operation In Our Sites are the takedown of 73,000 blogs (TorrentFreak coverage), and the demise of Ninja Video.

Conclusion

Free speech and expression is surely one of the pillars we can all aspire to maintain on the web. However as corporate interests gain more and more power in this new online world threats to our free expression online grows exponentially. Not only is free speech threatened by accusations of copyright infringement and other illegal activity, but guidelines and terms of service for sites like Facebook, Youtube, Google etc. are far more restrictive than the constitutional limits of free speech and leave the judgement of what forms of expressions are allowed on those services up those services themselves. Facebook is not a public square where speech is protected, it is more analogous to a newspaper that can publish, or not publish, whichever letters to the editor it pleases. It is crucial that we fight for the right to free speech online at this juncture where corporations and the law are just now creating the new norms for out online world, and may well leave behind freedoms that we once enjoyed in our real/analog world..