Censorship by copyright

Censorship by copyright or censorship through copyright refers to the use of copyright to enact censorship.

Critics of copyright argue that copyright has been abused to supress 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]

Most common form of censorship by copyright concerns abuse of the Digital Millennium Copyright Act (DMCA) either by copyright holders or by the service providers. That legislation forces web hosts to be overly sensitive to claims of copyright infringement and act as de facto gatekeepers, infringing upon fair use as well facilitating abuse in the form of bogus copyright claims.^{[3][10][8][11][4]}

Reasons

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]}

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 then 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 alive 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]}

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]

Automated copyright enforcement

Increasing number of media on line have led to content hosting companies developing automated solutions for copyright enforcement to help copyright holders remove alleged infringements from their services. Such solutions, however, are over protective 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 of copyright holders is automatically accepted, results in suspension 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 initially submit a counterclaim to establish their copyright ownership, followed by initiating a private legal action to demonstrate actual harm. They must locate the other party to enforce any financial compensation awarded by the judiciary.^[10]

In consequence, automated copyright detection systems of 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]} In some cases individuals have been known to play copyrighted music to disrupt streaming or recording or their activities, intending for any video of them to be taken down by automated systems.^[30]

Tools of 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:

• 1998: Canadian documentary The Kid Who Couldn't Miss has been withdrawn from distribution in 1998 by the National Film Board of Canada due to concerns that it would not generate enough revenue to pay for the renewal rights for its archival footage, which was required by copyright laws. Kirwan Cox called this ironic as "the public lost access to this film not because of political censorship [the documentary has been criticized by a number of Canadian politicians], but because of copyright censorship."^[21]
• 2001: In 2001, American computer scientist Edward Felten was threatened by the Recording Industry of America (RIAA), which invoked DMCA, threatening to sue Felten if he went through with his planned academic conference presentation on bypassing digital watermarks protecting media files; Felten withdrew his presentation.^[4][32]
• 2007: A YouTube video from Brian Sapient from the "Rational Response Squad" contained a segment from a NOVA program called "Secrets of the Psychics" which challenged the performance techniques of Uri Geller, an illusionist and self-proclaimed psychic. Geller demanded that YouTube take the video down, even though he claimed to own only three seconds of footage out of the entire thirteen-minute video. YouTube nonetheless removed Sapient's video and suspended his account and all videos associated with it. Electronic Frontier Foundation (EFF) represented Sapient and claimed that Geller's abused the Digital Millennium Copyright Act (DMCA) and eventually negotiated a settlement.^[33][34]
• 2007: New York City activist Savitri Durkee created UnionSquarePartnershipSucks.org, a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the Union Square area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act (DMCA) improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP also filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name. Electronic Frontier Foundation (EFF) filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The website and domain were ultimately restored.^[35]
• 2007: the destruction of a recreation of the School of Magic and Wizardry from the J.K. Rowling's Harry Porter franchise during the Durga Puja in Kolkata. The festival organizers were sued by Penguin Books, the publisher of the book series. The Calcutta High Court ordered the structure demolished after the festival.^[8][36]
• 2007: As part of its campaign to raise awareness about the treatment of animals at rodeos, nonprofit group Showing Animals Respect and Kindness (SHARK) posted a series of videos of rodeo events to YouTube. In response, the Professional Rodeo Cowboys Association (PRCA) filed takedown demands for 13 of the videos under the Digital Millennium Copyright Act (DMCA), claiming the videos infringed their copyrights -- despite the fact that the PRCA has no copyright claim in live rodeo events. Initially, SHARK's entire YouTube account was disabled, but the account was reinstated after SHARK, supported by the Electronic Frontier Foundation, sued, eventually obtaining a settlement from the PRCA.^[37]
• 2008: During the 2008 United States presidential election season, the McCain campaign posted a satirical video that included a clip of CBS News anchor Katie Couric commenting on sexism in the campaign. CBS News issued a DMCA takedown notice and had the video removed from YouTube.^[38]
• 2009: In September 2009, "Photoshop Disasters" -- a blog covering egregious photo editing missteps -- published a photo of a Polo Ralph Lauren ad in which the model's body was grotesquely smaller than her head. Internet culture blog Boing Boing noticed the oddity and reposted the picture, with some additional commentary. The company sent a DMCA threat to Boing Boing's web host as well as Photoshop Disaster's ISP, demanding that the image be removed. Photoshop Disaster's ISP apparently took the image down, but Boing Boing's web host forwarded the threat to Boing Boing staff, which recognized the baseless attempt at censorship and asserted its fair use rights in its response.^[39]
• 2010-2011: legislation such as the Anti-Counterfeiting Trade Agreement (ACTA) and Stop Online Piracy Act (SOPA), which have led to large scale protests by activists, have been discussed in the context of enabling censorship by copyright.^[8]
• 2011 and 2015: Universal Music Group supressed political speech and ignored fair use by submitting Content ID claims and DMCA takedown notice against a YouTube channel that included a speech by then-candidate Barack Obama. Back then, Obama’s campaign frequently used Stevie Wonder’s “Signed, Sealed, Delivered I’m Yours” and the YouTube video included a 34-second clip of the song that is copyrighted by UMG. The videos were taken down from YouTube.^[27]
• 2013: in 2013, journalist Oliver Hotham published an interview on his blog with Straight Pride UK" a group that expressed support for Russian anti-LGBT law. Shortly afterward, Straight Pride UK attempted to have the interview removed from Hotham's hosting platform, WordPress.com, claiming that they hold the copyright to their responses and had not agreed to the publication. Hotham, with support from its hosting platform, successfully challenged the Straight Pride UK in court, although were unable to collect the financial compensation awarded to him, as the other party has disappeared.^[10][40]
• 2014: EFF claimed that a Spanish firm abuses DMCA to silence critics of Ecuador's government.^[41]
• In February 2014 several people involved with the AIDS denialism film House of Numbers: Anatomy of an Epidemic filed DMCA notices against a YouTube science blogger Myles Power, who had made a video series debunking claims made in the film. Power argued that the film was fair use as criticism and education.^[42] Several commentators described the notices as attempted censorship.^[43][44][45] The videos were restored several days later.^[46]
• 2020: Turkish Erdoğan administration has been using state-owned television channel TRT’s status as a large rightsholder, which gives it access to YouTube’s ContentID filtering system, to silence critical reporting on the government issuing false copyright claims to the Content ID system.^[15]
• 2021: police officers in the United States played copyrighted music to disrupt recording and streaming of their actions by activists, intending to trigger automatic takedown of recorded content by automated copyright detection systems of online video hosting services.^[11][24][30]

See also

• Copyfraud
• Copyright misuse
• Criticism of capitalism
• Defective by Design
• Lost sales

References

1. Masnick, Mike (2013-07-26). "Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech'". Techdirt. Retrieved 2024-04-02.
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. 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. Westbrook, Steve (2009-04-09). 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. Gagliano, Cara (2023-01-20). "For Would-Be Censors and the Thin-Skinned, Copyright Law Offers Powerful Tools". Electronic Frontier Foundation. Retrieved 2024-04-03.
6. 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. Radsch, Courtney (2023). "Weaponizing Privacy and Copyright Law for Censorship". SSRN Electronic Journal. doi:10.2139/ssrn.4464300. ISSN 1556-5068.
8. Ghosh, Arjun (2013). "Censorship through Copyright: From print to digital media". Social Scientist. 41 (1/2): 51–68. ISSN 0970-0293. JSTOR 23611080.
9. 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. Hern, Alex (2016-05-23). "Revealed: How copyright law is being misused to remove material from the internet". The Guardian. ISSN 0261-3077. Retrieved 2024-04-02.
11. "How Copyright Bots are Governing Free Speech Online". Digital Freedom Fund. Retrieved 2024-04-02.
12. "The Mistake So Bad, That Even YouTube Says Its Copyright Bot 'Really Blew It'". Electronic Frontier Foundation. 2019-01-29. Retrieved 2024-04-02.
13. Travis, Hannibal (Spring 2000). "Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment" (PDF). Berkeley Technology Law Journal. 15 (2): 777–864.
14. Tewari, Shreya (2022-01-19). "(Ab)use of Copyright law as the tool of choice for censorship and reputation management". Berkman Klein Center Collection. Retrieved 2024-04-03.
15. "Turkish gov't uses TRT as a weapon to spread its censorship to YouTube". International Journalists Association. December 28, 2020. Retrieved 2024-04-02.
16. Rodríguez, Natalia Krapiva, Esq , Rodrigo (2020-10-22). "Warning: repressive regimes are using DMCA takedown demands to censor activists". Access Now. Retrieved 2024-04-03.{{cite web}}: CS1 maint: multiple names: authors list (link)
17. Vílchez, Dánae (2020-05-06). "YouTube censors independent Nicaraguan news outlets after copyright complaints from Ortega-owned media". Committee to Protect Journalists. Retrieved 2024-04-03.
18. Stoltz, Daniel Nazer and Mitch (2017-01-19). "Copyright Shouldn't Be A Tool of Censorship". Electronic Frontier Foundation. Retrieved 2024-04-03.
19. Rathemacher, Andrée J. (2012-07-01). "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.
20. 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.
21. Kirwan Cox, , Rigaud, 2005
22. The Art Institute of Chicago et. al, Comments on Orphan Works and Mass Digitization (Feb. 4, 2013)
23. Sarah E. Thomas, Response by the Cornell University Library to the Notice of Inquiry Concerning Orphan Works, (March 23, 2005) #12;
24. Thomas, Dexter (2021-02-09). "Is This Beverly Hills Cop Playing Sublime's 'Santeria' to Avoid Being Live-Streamed?". Vice. Retrieved 2024-04-02.
25. Palazzolo, Andrea Fuller, Kirsten Grind and Joe. "Google Hides News, Tricked by Fake Claims". WSJ. Retrieved 2024-04-02.{{cite news}}: CS1 maint: multiple names: authors list (link)
26. Binder, Matt (2020-02-26). "Fake copyright claim takes down Twitch's biggest political streamers during Democratic debate". Mashable. Retrieved 2024-04-02.
27. "Universal Music Group Censors Political Speech and Ignores Fair Use". Electronic Frontier Foundation. 2015-11-12. Retrieved 2024-04-02.
28. Geigner, Timothy (2021-09-30). "Copyright Continues To Be Abused To Censor Critics By Entities Both Big And Small". Techdirt. Retrieved 2024-04-02.
29. Brown, Donal (2015-08-18). "Critic of Inglewood mayor defeats censorship-by-copyright". FIRST AMENDMENT COALITION. Retrieved 2024-04-02.
30. Masnick, Mike (2022-08-04). "Please Don't Normalize Copyright As A Tool For Censorship". Techdirt. Retrieved 2024-04-03.
31. 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.
32. Greene, Thomas C. "SDMI cracks revealed". www.theregister.com. Retrieved 2024-04-03.
33. "Paranormalist Claims Three-Second Copyright in Attempt to Censor Critical Video". Electronic Frontier Foundation. 2011-11-18. Retrieved 2024-04-02.
34. Cheng, Jacqui (2007-05-09). "EFF to psychic: There will be a DMCA abuse suit in the near future". Ars Technica. Retrieved 2024-04-02.
35. "Real Estate Developers Censor Community Critic's Website". Electronic Frontier Foundation. 2011-11-18. Retrieved 2024-04-02.
36. "'Hogwarts pandal' may be pulled down over copyright". The Times of India. 2007-10-12. ISSN 0971-8257. Retrieved 2024-04-02.
37. "Cowboy Group Tries to Censor Animal Welfare Nonprofit". Electronic Frontier Foundation. 2011-11-18. Retrieved 2024-04-02.
38. "CBS News Censors McCain Ad During Heated Presidential Campaign". Electronic Frontier Foundation. 2011-11-18. Retrieved 2024-04-02.
39. "Retailer Tries to Censor "Photoshop Disaster" Advertisement". Electronic Frontier Foundation. 2011-11-18. Retrieved 2024-04-02.
40. Hern, Alex (2015-03-09). "WordPress in court victory over blogger censored by 'Straight Pride UK'". The Guardian. ISSN 0261-3077. Retrieved 2024-04-03.
41. Sutton, Maira (2014-05-15). "State Censorship by Copyright? Spanish Firm Abuses DMCA to Silence Critics of Ecuador's Government". Electronic Frontier Foundation. Retrieved 2024-04-02.
42. Palmer, Ewan (February 17, 2014). "YouTube to Terminate Account of Scientist who Debunked Aids Denialist Movie". International Business Times. Retrieved April 17, 2015.
43. Geigner, Timothy (February 14, 2014). "AIDS Denial Crazies Go All DMCA On Videos Educating People Of Their Craziness". Techdirt. Retrieved April 17, 2015.
44. McSherry, Corynne (February 18, 2014). "New Entrants in the Takedown Hall of Shame: AIDS Deniers and Televangelists (Updated)". Electronic Frontier Foundation. Retrieved April 17, 2015.
45. Kobie, Nicole (February 17, 2014). "Censorship by copyright: Myles Powers and abuse of DMCA takedowns". PC Pro. Retrieved April 17, 2015.
46. Palmer, Ewan (February 19, 2014). "Scientist's YouTube Account Remains Open Following Aids Denialist Censorship Claims". International Business Times. Retrieved April 17, 2015.

External links

• Electronic Frontier Foundation's Takedown Hall of Shame
• Viktoria Kraetzig (University of Frankfurt), Copyright as censorship right, Kluwer Copyright Blog. January 11, 2023
• Jim Gibson (University of Richmond School of Law) Copyright as Censorship, Part 1, Part 2. The Media Institute. December 22, 2009 and January 12, 2010