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]

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] [13] [14] [15] [16] [17] 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] [18] In particular, protections related to satirical use are seen as inadequate. [19]

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] [18] [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. [20] 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] [21] [22]

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. [10] [7]

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] [23] [24] [25] 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. [26]

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] [12] [27]

It has been argued that censorship by copyright is becoming increasingly more common in the Digital Age. [12] [18] 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". [12] 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.

FedEx furniture is the artistic creation of computer programmer and creative consumer Jose Avila, III. In June 2005, Avila created a website, Fedexfurniture.com, to display photographs of a couch, bed, dining room table, and desk that he had constructed out of cartons obtained from overnight shipping giant FedEx Corporation (FedEx). FedEx attorneys used the takedown provisions of the Digital Millennium Copyright Act (DMCA) to force Avila's ISP to take the site offline, accusing Avila of infringing on FedEx's copyrights and trademarks, breaching his contract with FedEx by using the cartons for purposes other than shipping, and potentially misleading consumers into believing that FedEx approved or endorsed Avila's actions. Among attorneys and activist organizations concerned with the exercise of First Amendment rights on the Internet, FedEx's actions raised questions about the constitutionality of using the DMCA to censor unwanted speech. The Fedexfurniture.com website is down as of July 8, 2017.

<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 and serves its operations worldwide.

<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>Viacom International Inc. v. YouTube, Inc.</i> U.S. copyright court case

Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19, was a United States Court of Appeals for the Second Circuit decision regarding liability for copyright infringement committed by the users of an online video hosting platform.

<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.

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 companies 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

  1. ↑ Masnick, Mike (26 July 2013). "Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'". Techdirt. Retrieved 2 April 2024.
  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.
  4. 1 2 3 4 5 Westbrook, Steve (9 April 2009). Composition and Copyright: Perspectives on Teaching, Text-making, and Fair Use. State University of New York Press. p. 37-38. ISBN   978-1-4384-2599-3.
  5. 1 2 Gagliano, Cara (20 January 2023). "For Would-Be Censors and the Thin-Skinned, Copyright Law Offers Powerful Tools". Electronic Frontier Foundation. Retrieved 3 April 2024.
  6. 1 2 3 4 Cobia, Jeffrey (2008). "The Digital Millennium Copyright Act Takedown Notice Procedure: Misuses, Abuses, and Shortcomings of the Process". Minnesota Journal of Law Science & Technology. 1: 391–393 – via Hein Online.
  7. 1 2 3 4 5 6 7 8 9 Radsch, Courtney (2023). "Weaponizing Privacy and Copyright Law for Censorship". SSRN Electronic Journal. doi:10.2139/ssrn.4464300. ISSN   1556-5068.
  8. 1 2 3 4 5 6 Ghosh, Arjun (2013). "Censorship through Copyright: From print to digital media". Social Scientist. 41 (1/2): 51–68. ISSN   0970-0293. JSTOR   23611080.
  9. 1 2 Aufderheide, Patricia; Milosevic, Tijana; Bello, Bryan (October 2016). "The impact of copyright permissions culture on the US visual arts community: The consequences of fear of fair use". New Media & Society. 18 (9): 2012–2027. doi:10.1177/1461444815575018. ISSN   1461-4448.
  10. 1 2 3 4 5 6 Hern, Alex (23 May 2016). "Revealed: How copyright law is being misused to remove material from the internet". The Guardian. ISSN   0261-3077 . Retrieved 2 April 2024.
  11. 1 2 3 4 "How Copyright Bots are Governing Free Speech Online". Digital Freedom Fund. Retrieved 2 April 2024.
  12. 1 2 3 4 Travis, Hannibal (Spring 2000). "Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment" (PDF). Berkeley Technology Law Journal. 15 (2): 777–864.
  13. 1 2 "Turkish gov't uses TRT as a weapon to spread its censorship to YouTube". International Journalists Association. 28 December 2020. Retrieved 2 April 2024.
  14. ↑ Palazzolo, Andrea Fuller, Kirsten Grind and Joe. "Google Hides News, Tricked by Fake Claims". WSJ. Retrieved 2 April 2024.{{cite news}}: CS1 maint: multiple names: authors list (link)
  15. ↑ Rodríguez, Natalia Krapiva, Esq , Rodrigo (22 October 2020). "Warning: repressive regimes are using DMCA takedown demands to censor activists". Access Now. Retrieved 3 April 2024.{{cite web}}: CS1 maint: multiple names: authors list (link)
  16. ↑ Vílchez, Dánae (6 May 2020). "YouTube censors independent Nicaraguan news outlets after copyright complaints from Ortega-owned media". Committee to Protect Journalists. Retrieved 3 April 2024.
  17. ↑ Stoltz, Daniel Nazer and Mitch (19 January 2017). "Copyright Shouldn't Be A Tool of Censorship". Electronic Frontier Foundation. Retrieved 3 April 2024.
  18. 1 2 3 Rathemacher, Andrée J. (1 July 2012). "Panel Discussion on Libraries and Best Practices in Fair Use". Journal of Electronic Resources Librarianship. 24 (3): 230–238. doi:10.1080/1941126X.2012.706139. ISSN   1941-126X.
  19. ↑ Collado, Adriana (June 2004). "Unfair Use: The Lack of Fair Use Protection for Satire under 107 of the Copyright Act". Journal of Technology Law & Policy. 9 (1): 65–80.
  20. 1 2 Kirwan Cox, Censorship by Copyright: Report of the DOC Copyright Survey, Rigaud, 2005
  21. ↑ The Art Institute of Chicago et. al, Comments on Orphan Works and Mass Digitization (4 February 2013)
  22. ↑ Sarah E. Thomas, Response by the Cornell University Library to the Notice of Inquiry Concerning Orphan Works, (23 March 2005) #12;
  23. ↑ "The Mistake So Bad, That Even YouTube Says Its Copyright Bot 'Really Blew It'". Electronic Frontier Foundation. 29 January 2019. Retrieved 2 April 2024.
  24. 1 2 Thomas, Dexter (9 February 2021). "Is This Beverly Hills Cop Playing Sublime's 'Santeria' to Avoid Being Live-Streamed?". Vice. Retrieved 2 April 2024.
  25. ↑ Geigner, Timothy (30 September 2021). "Copyright Continues To Be Abused To Censor Critics By Entities Both Big And Small". Techdirt. Retrieved 2 April 2024.
  26. 1 2 Masnick, Mike (4 August 2022). "Please Don't Normalize Copyright As A Tool For Censorship". Techdirt. Retrieved 3 April 2024.
  27. ↑ Jenkins, Joseph S. (2013). "Copyright Law and Political Theology: Censorship and the Forebear's Desire". Law and Literature. 25 (1): 65–84. doi:10.1525/lal.2013.25.1.65. ISSN   1535-685X. JSTOR   10.1525/lal.2013.25.1.65.
  28. ↑ Greene, Thomas C. "SDMI cracks revealed". www.theregister.com. Retrieved 3 April 2024.
  29. ↑ "Paranormalist Claims Three-Second Copyright in Attempt to Censor Critical Video". Electronic Frontier Foundation. 18 November 2011. Retrieved 2 April 2024.
  30. ↑ Cheng, Jacqui (9 May 2007). "EFF to psychic: There will be a DMCA abuse suit in the near future". Ars Technica. Retrieved 2 April 2024.
  31. ↑ "Real Estate Developers Censor Community Critic's Website". Electronic Frontier Foundation. 18 November 2011. Retrieved 2 April 2024.
  32. ↑ "'Hogwarts pandal' may be pulled down over copyright". The Times of India. 12 October 2007. ISSN   0971-8257 . Retrieved 2 April 2024.
  33. ↑ "Cowboy Group Tries to Censor Animal Welfare Nonprofit". Electronic Frontier Foundation. 18 November 2011. Retrieved 2 April 2024.
  34. ↑ "CBS News Censors McCain Ad During Heated Presidential Campaign". Electronic Frontier Foundation. 18 November 2011. Retrieved 2 April 2024.
  35. ↑ "Retailer Tries to Censor "Photoshop Disaster" Advertisement". Electronic Frontier Foundation. 18 November 2011. Retrieved 2 April 2024.
  36. ↑ "A morte da Falha de São Paulo". Diário do Centro do Mundo (in Brazilian Portuguese). 27 December 2018.
  37. ↑ "Universal Music Group Censors Political Speech and Ignores Fair Use". Electronic Frontier Foundation. 12 November 2015. Retrieved 2 April 2024.
  38. ↑ Hern, Alex (9 March 2015). "WordPress in court victory over blogger censored by 'Straight Pride UK'". The Guardian. ISSN   0261-3077 . Retrieved 3 April 2024.
  39. ↑ Sutton, Maira (15 May 2014). "State Censorship by Copyright? Spanish Firm Abuses DMCA to Silence Critics of Ecuador's Government". Electronic Frontier Foundation. Retrieved 2 April 2024.
  40. ↑ Palmer, Ewan (17 February 2014). "YouTube to Terminate Account of Scientist who Debunked Aids Denialist Movie". International Business Times. Retrieved 17 April 2015.
  41. ↑ Geigner, Timothy (14 February 2014). "AIDS Denial Crazies Go All DMCA On Videos Educating People Of Their Craziness". Techdirt. Retrieved 17 April 2015.
  42. ↑ McSherry, Corynne (18 February 2014). "New Entrants in the Takedown Hall of Shame: AIDS Deniers and Televangelists (Updated)". Electronic Frontier Foundation. Retrieved 17 April 2015.
  43. ↑ Kobie, Nicole (17 February 2014). "Censorship by copyright: Myles Powers and abuse of DMCA takedowns". PC Pro. Retrieved 17 April 2015.
  44. ↑ Palmer, Ewan (19 February 2014). "Scientist's YouTube Account Remains Open Following Aids Denialist Censorship Claims". International Business Times. Retrieved 17 April 2015.
  45. ↑ Marcial Pérez, David (10 February 2024). "Redes y medios retiran el polémico video de Máynez y Samuel García por derechos de autor" [Networks and media remove the controversial video of Máynez and Samuel García due to copyright issues]. El País (in Spanish). Retrieved 17 April 2024.
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