Last week, the big news in DMCA takedowns was the sweeping removal of Hitler parody videos. Earlier this year, it was Google suddenly wiping out six separate music blogs. Today, it’s the removal of a tweet.
While this might not seem like a big deal on the surface, it leads to some much bigger questions about free speech, what content should fall under a proper DMCA take-down and whether or not the DMCA is a legal method of applying censorship by any content owner.
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Here’s the story as told by TechDirt:
The story involves a music blogger named JP, who runs the appropriately named JP’s blog. Not surprisingly, JP also has a Twitter account, where he mostly seems to post links to his blog posts. One such post was about the leak of the new album by The National. That post includes a link to Amazon where people can purchase the new album… and also a link to a download of one song (in MP3 format) from the album.
According to JP’s blog post on the subject, Twitter sent him a message last Thursday “in response to a DMCA take-down notice”. The email, he writes, read as follows:
jp917, Apr 22 03:10 pm (PDT):
Hello,
The following material has been removed from your account in response to a DMCA take-down notice:
Tweet: http://twitter.com/jp917/statuses/12499491144 – New Post: Leaked: The National – High Violet http://jpsblog.net/2010/04/20/leaked-the-national-high-violet/
JP denies posting any link to the leaked album in his tweeted blog post, saying that he will not bother filing a counterclaim to the take-down. He also links to an article in Plagiarism Today from a year ago that alleges that Twitter’s handling of DMCA take-downs and counterclaims is problematic and that “there is clearly an organization issue here and that’s leading to confusion.”
While last weeks’ take-downs of parody videos may have been “overbroad take-downs of legal content”, as the Electronic Frontier Foundation asserted, this sort take-down may go an extra step, beyond constitutionally protected First Amendment speech. With the YouTube take-downs, at least there was copyrighted content present, although it may have been used according to the law in the end. In this case, according to JP, there was neither pirated content nor a link to any DMCA-violating content.
While TechDirt argues that “specifically, nothing in the tweet itself is infringing — which means that the DMCA take-down for the tweet is bogus, and a violation of the DMCA itself”, we spoke with David Sohn, senior policy council with the Center for Democracy & Technology, who said that the question might not be so cut and dry. Section 5.12D of the DMCA relates to cases involving “information location tools” and “links”.
“One possibility here is that Twitter has gotten a take-down notice that might not stand up as a totally valid take-down notice,” said Sohn.
On Sohn’s advice, we asked Wendy Seltzer, founder of ChillingEffects.org, what this all meant and she explained that the burden of proof lies with the person creating the content and not the platform. All the platform, in this case Twitter, needs to know is that the complaint may be valid and that, by removing the offending content, they cover themselves legally in the eyes of the DMCA. Whether or not section 5.12 D of the DMCA actually applies doesn’t really matter.
The introduction to her recent paper, “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment” (.pdf), speaks clearly to the problem we saw when first reading this story:
Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the “safe harbors” of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.
The problem with the current format of the DMCA, especially in the case of something like a communication platform such as Twitter, is that a DMCA take-down notice becomes an extremely effective means of silencing information for a legally mandated period of 10 days. In essence, it provides those who wish to silence a voice a quick and legal means of enacting what is called a “prior restraint“, something clearly prohibited in First Amendment law.
“When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas,” writes Seltzer in the paper.
Twitter offered this response:
“Twitter regularly receives DMCA takedown notices. We strive to balance the interests of our users and copyright holders by reviewing each notice. After determining whether the notice is compliant with the law, we also consider other factors such as whether the notice is abusive to our users, or fails to take fair use into consideration. You can read more about our DMCA process here: http://help.twitter.com/entries/15795-copyright-and-dmca-policy
“We are always working to improve our transparency. Users are notified immediately when content has been removed from their account. In this situation, we responded to a request to remove a Tweet containing a link to download content from an unreleased album. After reexamining our decision, we believe this was the correct first step. If the affected user believes we have made a mistake or that the notice is in error, the appropriate thing for the user to do is file a counter-claim.
“We believe that the reasoning of the DMCA claim and its origin should be transparent to both the affected user and other interested parties. We are working on further steps to improve access to this information.”
So, our next logical question here is: Since this post includes the email from Twitter, which includes that original link to a blog post that supposedly linked to infringing content, can it too be removed according to the guidelines of the DMCA?
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