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Copyright Claims as a Tool of Censorship

Yesterday Google posted a policy statement detailing changes in the way they will handle DMCA Copyright takedown notices against websites indexed by Google. As part of their new policy, Google will take down links to the websites immediately. The supposed counterweight to this is that they say they will make it easier to appeal if you feel the takedown on your website was done unjustly.

In my opinion, this is a delicate issue and deserves its share of scrutiny. If DMCA notices were only issued for real cases of willful copyright infringement (a.k.a. “piracy”), then I would not be concerned about the new policy. However, we already have a rich history of corporations abusing DMCA notices in attempts to quash critics and silence whistleblowers. I will describe four notable cases. When reading these, keep in mind that a corporation or individual can issue a DMCA notice without filing legal charges against the supposed infringer. Only if the accused infringer fights back are they actually required to bring the lawsuit. Moreover, the accused infringer’s website will be kept down through the whole process, in a guilty-until-proven-innocent paradigm. This is described in greater detail at chillingeffects.org

2001 - Huntingdon Life Services and Bank Of New York vs BankOfNYKills and Stop Huntingdon Animal Cruelty: The UK’s largest animal-testing company and a New York financial institution partner sent a DMCA takedown notice to the ISP hosting two websites criticizing the use of animals in medical testing. The two sites were taken offline for several months, though eventually they came back.

2002 - Scientology vs Operation Clambake: The Church of Scientology issues DMCA takedowns to Google, the New York Times, Slashdot, Wired, and others for linking to xenu.net, the home of “Operation Clambake” (xenu.net’s ISP was located outside of the US so it could not be targeted directly under the DMCA). Operation Clambake is a website that describes Scientology as a dangerous cult and hosts documents explaining internal secret Scientology doctrine. Google complied with Scientology’s request, taking down links to xenu.net. Notably, the Google founders eventually admitted that this action was a mistake. Eventually Google added a link to the Chilling Effects project, explaining why the page was missing from search results.

2007 - Second Life vs Youtube users: In 2007 the founder of Second Life, Ailin Graef, decided to give a live interview with C-Net News.com inside the Second Life virtual world using her in-game avatar. Players got wind of this and crashed the interview, releasing a “swarm of flying penises”. The comic event was recorded on video and posted on Youtube. Graef’s husband and business partner then issued a DMCA notice, claiming that the video violated his wife’s copyright through the ludicrous logic that a player owned the copyright on any reproductions of his or her avatar’s likeness. Youtube deleted the video. Graef later admitted that it was a mistake to use the DMCA in this manner since the issue really was not about copyright.

2010 - Microsoft vs Cryptome: Cryptome is a document-sharing website, operating since 1996, that is dedicated to hosting classified documents from governments around the world, particularly those related to government suppression of freedom of speech and privacy. In 2010, the site published a secret technical document produced by Microsoft detailing how the company enables government surveillance against users of its software. Microsoft used the DMCA to take down the site, however it withdrew the complaint 3 days later due to significant public outcry and negative publicity. PayPal has stopped processing donations to the organization and frozen their account.

What should we take away from these stories? I’m not about to argue that Google should not comply with DMCA takedown notices; it’s required to do so by law. At the same time, I’m not eager to see Google seeking to expedite such takedowns as long as abuse continues. Google is one of the biggest gatekeepers of information in our modern society, and its record of dedication to protecting free speech in countries like China is mixed. Perhaps we would do well to diversify our methods of accessing information.

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