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Can The DMCA Be Used Against You If Someone Doesn’t Like What You Blog?

According to the American Society of Journalists and Authors (ASJA) Contract Watch, public features are misusing the DMCA, the Digital Millennium Copyright Act which is designed to protect copyrights on the web.

The announcement references a recent Electronic Frontier Foundation press release about a suit brought against a defendant which used the DMCA to request an Internet Provider/Host remove an unfavorable article because of the use of a copyrighted image on the web page. They claimed they owned the rights to the photograph, thus the entire web page must be removed because of the protections set in the DMCA.

I don’t know much about the suit and claim, but the issue appears to be about the unfavorable blog post, not the image. The DMCA/copyright issue over the photograph is just the big club being used to shut down the blog post. It appears the defendant wanted the article down and the lawyers went hunting for a reason and took advantage of the copyright violation use of the photograph to get the whole page down.

Normally, an issue over a copyright violation would mean that the photograph could be removed and all parties would be satisfied, but in this case, the lawyers wan the whole page removed. Why this case is different, I’m not clear, but the ASJA Contract Watch Committee says:

We’re not commenting on the merits of the case, but the concept is important. On one hand, the DMCA gives you a big legal stick to force companies with a US-hosted web site from using your copyrighted material online without your permission. On the other hand, it’s easy to see how people can misuse the tool, especially as it calls only for the assertion, not additional proof. So the DMCA is something writers, photographers, and illustrators should be aware of – both offensively and defensively.

What do you think about this? Are there loop holes in the DMCA which can get your blog brought down because someone doesn’t like what you blog?

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Copyright Lorelle VanFossen, member of the 9Rules Network, and author of Blogging Tips, What Bloggers Won't Tell You About Blogging.

8 Comments

  1. Posted June 22, 2007 at 5:56 am | Permalink

    Well that’s a little chilling — Obviously it’s nice to be able to have some recourse if your hard-earned work is wantonly stolen and used for profit somewhere on the web, but this is a whole different beast altogether. I definitely think what the defendants are doing here is wrong, but then again, avoid using copyrighted material next time ;-)

  2. Posted June 22, 2007 at 7:27 am | Permalink

    I feel pretty confident that my hosting provider, SliceHost, would simply pass along the request and ask me to “deal with it”. While it sounds awesome to call someone’s bluff, I’d probably remove the image and, instead, make sure the offending party gets all kinds of negative publicity from it.

  3. Posted June 22, 2007 at 8:16 am | Permalink

    If someone asks you to remove copyrighted material, do it. No question. No debate. If a fuss is made and revenge through blogging and publicity, the offending blogger looks the fool, not them. This is inappropriate and childish behavior.

    However, this is a much more complicated issue than just the casual request for removal of copyright material. This is the shutting down of a website and page for what was said on it, using the copyright violation as a sledge hammer to get what they want.

    Even with that twist, I always recommend professional behavior.

    And this issue makes you think, though. It’s freedom of speech and opinion meets copyright protection. A tough call all the way around.

  4. Posted June 22, 2007 at 9:14 am | Permalink

    I see two different issues here. First is if you commit a crime, does that taint the rest of what you do? Apparently so. If the contest picture had been child porn, probably the hosting company, ISP, and web site, let alone the page, would be down and relevant and not-so-relevant people would be facing jail time. Copyright infringement is different in degree, not kind. In my opinion.

    The other issue, do the courts flail around, letting big-money lawyers and prosecutors re-write the impact of laws and regulations? They do this all the time. I have heard the US Congress called ‘the school of unintended consequences, never graduated a class’. Both because Congress pulls shenanigans, sticking stuff into bills they didn’t want scrutinized closely, and because liberal judges allow attorney’s to interpret laws to their client’s benefit, well. As we learned from Forrest Gump, ‘Stuff Happens’.

    What I wonder is why the defense hasn’t charged negligence on the part of the hosting provider, and require records of everyone that visited the site with the infringing image or quit operations. Or both.

    Defending a suit like this, infringing the right to free speech, will likely rise to the Supreme Court to find that parody is a fair use usage of the image, used to comment and criticize (or the company wouldn’t be complaining). The problem is that bowing to big money lawyers sets a dangerous legal precedent, if the blogger caves in and takes down the post.

    Of course, I could envision taking the post down, leaving out two sentences, and reposting the text wrapped in ‘Why I removed that post the other day’, with a ‘synopsis’ of what bothered the big money lawyers. But it is the principal of the thing.

    If Congress wants to do something responsible, repealing the DCMA and reforming copyrights and patents would be a nice place to start. Maybe set a ground rule – print the whole text on one page, double spaced, legal size sheet of paper, 12 point typeface. If they want to increase the information density, maybe write in verse.

  5. Posted June 22, 2007 at 9:48 am | Permalink

    I don’t know, Lorelle. According to the article, the person who attempted to have the site shut down “has agreed to withdraw those complaints, take a copyright law course, and apologize for interfering with the free speech rights of his targets.” His complaints were described as “meritless.” To me, that means that while I’m sure it was a pain for the website owner to have to deal with, ultimately the person was not successful in using the DMCA to bully someone because he didn’t like what they said.

  6. Posted June 22, 2007 at 12:22 pm | Permalink

    The problem on the one hand is that the DMCA pretty much means that even in meritless cases like this, to protect it from liability an ISP has to go through the DMCA process which can require taking down materials at some point.

    On the other hand, the DMCA explicitly allows for penalties for falsely asserting a copyright, which is why Crooks agreed to all the stuff EFF demanded, because otherwise they could have pursued their lawsuit against him.

    So this is unlikely to become widespread, but it is still an annoying feature of the DMCA.

  7. Posted June 24, 2007 at 10:03 pm | Permalink

    The real issue isn’t whether or not it can, but at what cost.

    Michael Crook, Diebold, the Church of Scientology and Uri Geller have all used the DMCA to silence critics. All, however, have faced or are facing lawsuits over that abuse.

    The Michael Crook case you link to is even more exceptional because he only thought he owned the copyright of the photo. It was actually taken by Fox News and not under his copyright control. He pleaded ignorance and got off relatively easy, others have not been so lucky.

    The bottom line is that, yes, it can be used for evil purposes. But the cost is usually very great. It is, over all, a very rare problem. Still, it is one to worry about. It not only weakens the good use of the DMCA, but also crushes free speech. It’s a lose-lose.

    Hopefully these incidents will become even more rare as time goes on.

  8. Posted July 3, 2009 at 6:47 am | Permalink

    eBay has tried the DCMA on eBuster because my site shows fraud on eBay and contains messages from eBay and pages that relate to fraud and if you think the DCMA notice was dirty tricks coming from eBay then the next the move will surprise you.

    I have an email from my old host company that eBay said they wanted the FBI to investigate eBuster as if I’m some threat to national security or something so I contacted the FBI offering to come forward but they don’t seem to interested and I should think they are none to please by eBay using their name in such a manor.

    Corporation must never be given the power to silence the public over matter of truth and people entrusted with our power must not allow themselves to be used against the people they are supposed to be protecting.


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