Censorship by copyright

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Free culture activists are critical of the censorship by copyright practice, as seen in this Mimi & Eunice by Nina Paley webcomic on "Censorship vs. Copyright". ME 402 CensorshipVsCopyright1.png
Free culture activists are critical of the censorship by copyright practice, as seen in this Mimi & Eunice by Nina Paley webcomic on "Censorship vs. Copyright".

Copyright can be used to enact censorship. Critics of copyright argue that copyright has been abused to suppress free speech, [1] [2] [3] as well as criticism, [4] [5] business competition, [6] academic research, [4] investigative reporting (and freedom of press) [5] [7] and artistic expression. [3] [8] [9]

Contents

The most common form of censorship by copyright concerns the abuse of the Digital Millennium Copyright Act (DMCA) either by copyright holders or by the service providers. The DMCA forces web hosts to be overly sensitive to claims of copyright infringement and act as de facto gatekeepers, infringing upon fair use as well as facilitating abuse in the form of bogus copyright claims. [3] [10] [8] [11]

Reasons

"IP censure", a cartoon discussing concepts of censorship and copyright on the occasion of the World Intellectual Property Day, is another comic critical of the practice related to activism critical of copyright. IP day censure en.png
"IP censure", a cartoon discussing concepts of censorship and copyright on the occasion of the World Intellectual Property Day, is another comic critical of the practice related to activism critical of copyright.

Strong-arm deterrence tactic

The use of censorship of copyright has been described as a legal "strong-arm" tactic (guerrilla litigation) aimed at creating deterrents for future copyright infringement by educating the public about the copyright. This tactic does not require a trial, as the threat of litigation against financially vulnerable violators can often be sufficient. [8] Sometimes such activities are called strategic lawsuits against public participation (SLAPP). [7] This has also led to chilling effect, self-censorship or abuse from copyright trolls. [3] [7] [10] [12] [13] [14] [ excessive citations ]

Censorship

The lack of consequences for perjury in DMCA claims encourages censorship. This has caused temporary takedowns of legitimate content that can be financially damaging to the legitimate copyright holder, who has no recourse for reimbursement. [4] [6] [7] As a consequence, DMCA has enabled copyright owners to "censor academic discussions and online criticism". [4] It has also been used by businesses to censor competition. [6] It has also been used to censor investigative reporting, and suppress political speech. This includes the use of it by parties in non-democratic states, which use international law to remove content from international (Western) platforms like YouTube. [7] [15] [16] [17] [18] Modern copyright has been described as "an attractive weapon to chill speech". [3]

In the context of American legislation, censorship by copyright has been said to violate the First Amendment; such abuse of copyright is supposed to be limited by fair use, but fair use has been found to be difficult to enforce due to chilling effects of copyright litigation and disparity of power between copyright holders and those seeking permission to use a work. [2] [3] [19] In particular, protections related to satirical use are seen as inadequate. [20]

Censorship by copyright has also been linked to reducing innovation, creativity, and limiting artistic expression. A study involving visual artists and professionals in the visual arts sector revealed that one-third have either avoided or ceased work in their domain due to worries about copyright infringement. Additionally, over half of the editors and publishers surveyed have dropped or reduced the scope of their projects because of these worries. [3] [19] [9] A 2005 survey of documentary makers in Canada found that 85% of them said copyright is more harmful than beneficial for their field and that it threatens their ability to produce content. [21] Such concerns have also hindered museums and libraries from digitizing and sharing cultural and scientific materials, including works for whom no living copyright holder could be identified but which are protected by the law by default (orphan works). [3] [22] [23]

Technology and laws that facilitate censorship

Abuse of law

Most common form of censorship by copyright concerns abuse of the Digital Millennium Copyright Act (DMCA). That legislation forces web hosts to be overly sensitive to claims of copyright infringement, infringing upon fair use as well as facilitating abuse in the form of bogus copyright claims. [5] [10] [8] [11] [4] [7] [ excessive citations ]

Other laws that have been criticized for similar problems include the European Union's Directive on Copyright in the Digital Single Market (Copyright Directive), and the EU General Data Protection Regulation (GDPR) and the concept of the right to be forgotten. [7]

The increasing prevalence of online media has led to content hosting companies developing automated solutions for copyright enforcement to help copyright holders remove alleged infringement from their services. Such solutions, however, are overprotective due to difficulties related to defining legal uses such as quotations or fair use, as well as the lack of authoritative information about who is a legitimate rights holder for which copyrighted work. [11] They are also designed from the perspective of assumption of guilt, as any claim made by copyright holders is automatically accepted, results in the takedown of allegedly offending material, and requires the accused to prove their innocence. [3] [10] [11]

Moreover, the risks associated with making a false accusation are low: the person accused must first submit a counterclaim to establish their copyright ownership and then take private legal action to demonstrate actual harm. They must locate the other party in order to enforce any financial compensation awarded by the judiciary. [10]

Consequentially, automated copyright detection systems built for and used by online video hosting services like Google's Content ID have been used by governments, companies and individuals to block critical reporting. [6] [12] [11] [24] [15] [25] [26] [27] [28] [29] [ excessive citations ] In some cases, individuals have been known to play copyrighted music to disrupt streaming, recording or other activities with the intent of getting other users' videos taken down by automated systems. [30]

Tools used in content moderation have been subject to similar criticism. [7]

History and notable examples

Earliest examples of the use of copyright law to enforce censorship relate to the British government invoking the monopoly of the Worshipful Company of Stationers and Newspaper Makers to suppress texts it deemed problematic, such as anti-Cromwellian and anti-Caroline satirical writings in the sixteenth and seventeenth centuries. To circumvent the Stationers' monopoly on print, contemporary activists used a handwriting (scribed) method of publication. [8] [13] [31]

It has been argued that censorship by copyright is becoming increasingly more common in the Digital Age. [13] [19] It has also been called a major element of censorship found in democratic societies, otherwise critical of the concept of censorship. Hannibal Travis wrote that "copyright largely determines the accessibility and cost of information in a democratic society, and that it grants rights holders substantial powers of censorship through the threat of prosecution for infringement". [13] Modern copyright laws and associated technologies developed to enforce it have been described as "wielded by powerful government and business officials as a weapon to censor independent news media and deter investigative reporting". Said laws and technologies have been generally developed in the Global North, and are abused there as well, but are even more commonly abused in the Global South, where traditions and protections of free speech are weaker. [7]

Incidents described as censorship by copyright include:

See also

Related Research Articles

A cease and desist letter is a document sent by one party, often a business, to warn another party that they believe the other party is committing an unlawful act, such as copyright infringement, and that they will take legal action if the other party continues the alleged unlawful activity. The letter may warn that, if the recipient does not discontinue specified conduct, or take certain actions, by deadlines set in the letter, the letter's recipient may be sued. The phrase "cease and desist" is a legal doublet, made up of two near-synonyms. A cease and desist letter issued by a government entity, called a cease and desist order, is "a warning of impending judicial enforcement".

Lumen, formerly Chilling Effects, is an American collaborative archive created by Wendy Seltzer and operated by the Berkman Klein Center for Internet & Society at Harvard University. It allows recipients of cease-and-desist notices to submit them to the site and receive information about their legal rights and responsibilities.

<span class="mw-page-title-main">Students for Free Culture</span>

Students for Free Culture, formerly known as FreeCulture.org, is an international student organization working to promote free culture ideals, such as cultural participation and access to information. It was inspired by the work of former Stanford, now Harvard, law professor Lawrence Lessig, who wrote the book Free Culture, and it frequently collaborates with other prominent free culture NGOs, including Creative Commons, the Electronic Frontier Foundation, and Public Knowledge. Students for Free Culture has over 30 chapters on college campuses around the world, and a history of grassroots activism.

<i>Online Policy Group v. Diebold, Inc.</i>

Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, was a lawsuit involving an archive of Diebold's internal company e-mails and Diebold's contested copyright claims over them. The Electronic Frontier Foundation and the Stanford Cyberlaw Clinic provided pro bono legal support for the non-profit ISP and the Swarthmore College students, respectively.

<span class="mw-page-title-main">Copyfraud</span> False copyright claims to public-domain content

A copyfraud is a false copyright claim by an individual or institution with respect to content that is in the public domain. Such claims are unlawful, at least under US and Australian copyright law, because material that is not copyrighted is free for all to use, modify and reproduce. Copyfraud also includes overreaching claims by publishers, museums and others, as where a legitimate copyright owner knowingly, or with constructive knowledge, claims rights beyond what the law allows.

Stream ripping is the process of saving data streams to a file. The process is sometimes referred to as destreaming.

<span class="mw-page-title-main">Online Copyright Infringement Liability Limitation Act</span> 1998 U.S. federal law

The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional 'safe harbor' for online service providers (OSP), a group which includes Internet service providers (ISP) and other Internet intermediaries, by shielding them for their own acts of direct copyright infringement as well as shielding them from potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

The Electronic Frontier Foundation (EFF) is an international non-profit advocacy and legal organization based in the United States.

<span class="mw-page-title-main">Digital Millennium Copyright Act</span> United States copyright law

The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal. Content is removed by the host following notice. Notice and take down is widely operated in relation to copyright infringement, as well as for libel and other illegal content. In United States and European Union law, notice and takedown is mandated as part of limited liability, or safe harbour, provisions for online hosts. As a condition for limited liability online hosts must expeditiously remove or disable access to content they host when they are notified of the alleged illegality.

<i>Lenz v. Universal Music Corp.</i> U.S. District Court copyright case

Lenz v. Universal Music Corp., 801 F.3d 1126, is a decision by the United States Court of Appeals for the Ninth Circuit, holding that copyright owners must consider fair use defenses and good faith activities by alleged copyright infringers before issuing takedown notices for content posted on the Internet.

<span class="mw-page-title-main">Hotfile</span> File hosting website

Hotfile was a one-click file hosting website founded by Hotfile Corp in 2006 in Panama City, Panama. On December 4, 2013, Hotfile ceased all operations, the same day as signing a $4 million settlement with the Motion Picture Association of America (MPAA); the settlement had previously been misreported as $80 million.

<i>Ouellette v. Viacom International Inc.</i> US legal case

Ouellette v. Viacom, No. 9:10-cv-00133; 2011 WL 1882780, found the safe harbor provision of the Digital Millennium Copyright Act (DMCA) did not create liability for service providers that take down non-infringing works. This case limited the claims that can be filed against service providers by establishing immunity for service providers' takedown of fair use material, at least from grounds under the DMCA. The court left open whether another "independent basis of liability" could serve as legal grounds for an inappropriate takedown.

<span class="mw-page-title-main">Let's Play</span> Playthrough of a video game with commentary

A Let's Play (LP) is a video documenting the playthrough of a video game, often including commentary and/or a camera view of the gamer's face. A Let's Play differs from a video game walkthrough or strategy guide by focusing on an individual's subjective experience with the game, often with humorous, irreverent, or critical commentary from the player, rather than being an objective source of information on how to progress through the game. While Let's Plays and live streaming of game playthroughs are related, Let's Plays tend to be curated experiences that include editing and narration, and can be scripted, while streaming is often an unedited experience performed on the fly.

<span class="mw-page-title-main">Critical Commons</span>

Critical Commons is an online repository of user-generated media. The archive is a project of the Media Arts and Practice division of the USC School of Cinematic Arts. The project supports the fair use of copyrighted media by educators.

<i>UMG Recordings, Inc. v. Shelter Capital Partners LLC</i> United States Court of Appeals for the Ninth Circuit case

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 No. 09-55902, was a United States Court of Appeals for the Ninth Circuit case in which UMG sued video-sharing website Veoh, alleging that Veoh committed copyright infringement by hosting user-uploaded videos copyrighted by UMG. The Ninth Circuit upheld the decision of the United States District Court for the Central District of California that Veoh is protected under the Digital Millennium Copyright Act's safe harbor provisions. It was established that service providers are "entitled to broad protection against copyright infringement liability so long as they diligently remove infringing material upon notice of infringement".

<span class="mw-page-title-main">Operation In Our Sites</span> US federal Internet copyright enforcement

Operation In Our Sites is an ongoing effort by the U.S. government's National Intellectual Property Rights Coordination Center to detect and hinder intellectual property violations on the Internet. Pursuant to this operation, governmental agencies arrest suspects affiliated with the targeted websites and seize their assets including websites' domain names. Web users intending to access targeted websites are directed to the server operated by the U.S. government, and greeted with a graphic bearing the seals of the United States Department of Justice (DOJ), the National Intellectual Property Rights Coordination Center (NIPRCC), and U.S. Immigration and Customs Enforcement (ICE).

YouTube copyright issues relate to how the Google-owned site implements its protection methods. The systems are designed to protect the exclusivity of a given creator and owner and the rights to reproduce their work. YouTube uses automated measures such as copyright strikes, Content ID and Copyright Verification Program. These methods have been criticized for favoring corporations and their use of copyright claims to limit usage of uploaded content.

<span class="mw-page-title-main">YouTube copyright strike</span> Website policy action

YouTube copyright strike is a copyright policing practice used by YouTube for the purpose of managing copyright infringement and complying with the Digital Millennium Copyright Act (DMCA). The DMCA is the basis for the design of the YouTube copyright strike system. For YouTube to retain DMCA safe harbor protection, it must respond to copyright infringement claims with a notice and take down process. YouTube's own practice is to issue a "YouTube copyright strike" on the user accused of copyright infringement. When a YouTube user gets hit with a copyright strike, they are required to watch a warning video about the rules of copyright and take trivia questions about the danger of copyright. A copyright strike will expire after 90 days. However, if a YouTube user accumulates three copyright strikes within those 90 days, YouTube terminates that user's YouTube channel, including any associated channels that the user have, removes all of their videos from that user's YouTube channel, and prohibits that user from creating another YouTube channel.

youtube-dl is a free and open source software tool for downloading video and audio from YouTube and over 1,000 other video hosting websites. It is released under the Unlicense software license.

References

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  2. 1 2 Haber, Eldar (2013–2014). "Copyrighted Crimes: The Copyrightability of Illegal Works". Yale Journal of Law and Technology. 16: 454–501. ...censorship-by-copyright could endanger other constitutional rights, first and foremost First Amendment rights and possibly due process rights.
  3. 1 2 3 4 5 6 7 8 9 Reid, Amanda (Winter 2019). "Copyright Policy as Catalyst and Barrier to Innovation and Free Expression". Catholic University Law Review. 68 (1): 33–86. The attractiveness of modem copyright as a weapon to chill speech is due to four interrelated factors: (1) the ease and "ubiquity" of infringement; (2) the simplicity of asserting a prima facie infringement case; (3) the uncertainty of available defenses, like fair use; and (4) the threat of hefty statutory penalties. Censorship by copyright undermines core First Amendment principles. Copyright out of balance threatens our liberty to learn. Copyright threatens access to the building blocks of learning and culture.
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