This is the essay I had written for English 122 about a legal aspect of copyright. Reading it is not necessary to understand my Proteus Project, which focuses on social and linguistic aspects, but since the topic is related, I present it here anyway.

The Digital Millennium Censorship Act: Copyright Takedowns and Freedom of Speech

Imagine a loophole allowing anyone to censor constitutionally-protected free speech with the mere click of a button. Imagine individuals and corporations alike routinely using this loophole to censor their critics or sabotage their rivals, with no human review and no penalty for perjury. Unfortunately, one does not have to imagine: the Digital Millennium Copyright Act (DMCA) does just that. A 1998 U.S. law intended to protect copyright on the internet through several mechanisms, its "takedown" system in particular has inadvertently become a menace to First and Fifth Amendment rights. It is regularly used to force offline not only legitimate copyright infringement but also lawful "fair use" speech that the claimant simply does not like. The legislation's supposed safeguards against fraudulent claims are woefully inadequate, so malicious perjury regularly goes unpunished. The Digital Millennium Copyright Act and its takedown system have done immense damage to freedom of speech due to lack of due process and human review; it is routinely used by bad actors to censor criticism even when a work would not be considered infringement. To rectify this unjust loophole, the system must be restructured in a way that respects the constitutional rights of the accused as well as the claimant and imposes consequences for deliberate false reports.

To first give some background context, copyright is a legal doctrine (part of broader intellectual property) intended to assert defensible ownership over creative works such as writing, movies, and music. If a copyrighted work is used without permission, it is usually considered illegal infringement, but there is a set of exemptions known as fair use that allow for the use of copyrighted material in transformative works such as criticism, commentary, and parody. The year 1998 marked a key reformation to U.S. intellectual property law when the Digital Millennium Copyright Act (DMCA) was signed into law by President Bill Clinton, implementing two treaties written by the World Intellectual Property Organization (WIPO) as well as additional provisions, with the intent to address "a number of... significant copyright-related issues." Legal and ethical challenges have been raised to several aspects of the DMCA, such as its "anti-circumvention" provision criminalizing workarounds to Digital Rights Management technology, and its allowance of subpoenas to Internet Service Providers to confront alleged infringement (which infamously enabled the Recording Industry Association of America to sue over 30,000 individuals between 2003 and 2008), but its takedown system remains a uniquely serious quandary. One key point to remember is that the DMCA (and copyright in general) has no bearing on defamation -- tone and truthfulness are entirely irrelevant when determining whether or not a work is infringement.

With an understanding of how copyright law is intended to function, it is worth exploring how the DMCA is actually utilized in practice. While plenty of takedowns do target legitimate infringement, many individuals and companies go beyond that and file false reports against fair use material that they simply dislike -- most often criticism or competition. Exact numbers of false takedowns are unavailable [1] because most platforms do not individually review claims before removing content (an oversight which shall be examined in detail shortly) but in one particularly egregious case study, the Washington Post reported on a Charlottesville weekly newspaper archive called The Hook that preserved over 22,000 articles written between 2002 and 2013. One such article in 2011 detailed rape accusations against a man named Curtis N. Ofori, who attempted to censor it by filing an unsuccessful libel lawsuit and sending notices to Google to remove it from search results. Not prevailing through those methods, in 2022 The Hook abruptly went offline, and internet users who had referenced its articles elsewhere were served with DMCA notices; Ofori had purchased the archive and, now "owning" all of its articles, considered any link to his sexual assault allegation "infringement". Had this copyright case gone through a court, it is unlikely he would have prevailed due to his clear bad-faith intentions. In another appalling example, an author named Addison Cain claimed to own an entire genre of erotica novels, and colluded with her publisher to systematically file false takedowns against competing authors who had written their own stories in the same genre. When a YouTuber named Lindsay Ellis made a video covering the controversy, Cain attempted to file a takedown against that as well, and in a truly surprising twist, even the infamously enabling YouTube administration rejected the claim because Cain was so transparent about her bad-faith intentions (raving more about how she felt Ellis had defamed her than about the fair use of her copyrighted material). The other authors Cain had previously targeted, however, were not so fortunate, losing out on valuable sales of writing that was legally their own after being removed from Amazon and other selling platforms -- platforms that had failed to verify whether Cain's claims did in fact constitute infringement.

Speaking of failure to verify claims, most online platforms wholly disregard the rights of the accused when it comes to DMCA notices, conducting little to no manual review before striking down videos, posts, and other points of alleged infringement. Some, such as YouTube and Instagram, have even implemented automated filters that copyright holders can use to automatically strike any video that uses certain audio or video clips, regardless of whether it would actually be fair use in context. These filters have become widespread enough that some individuals and institutions committing real-life violence, such as police brutality at protests, have learned that if they play copyrighted music while the crime is in progress, victims and bystanders will be unable to post their video recordings of the incident online without being automatically taken down by DMCA algorithms. Regardless of context, the burden of proof is placed on the accused to file a counter-claim, which can be a major problem not only on principle (the right to presumption of innocence is seemingly forgotten) but also because counter-claims require personally identifiable information from the accused, in case the copyright holder wishes to file suit; this can be exploited as an intimidation tactic by bad actors with threats of "doxxing" (publishing the private personal information of an individual such as home address, which is technically not illegal on its own but certainly frightening). In essence, large platforms appear to operate off a "guilty until proven innocent" mindset when it comes to allegations of copyright infringement, thus all but encouraging bad-faith censors to abuse the system -- and willfully failing to uphold U.S. citizens' right to due process when accused of a crime, let alone freedom of expression when no such crime was committed.

The strongest argument in favor of the DMCA takedown system is, of course, protecting the rights of copyright owners to not have websites infringe upon their work. However, despite how convenient the ease of filing takedowns can be for such owners, the fact that no legal proceedings are required before punishing an alleged crime is an unwarranted and largely unprecedented privilege that has clearly gone awry. As put by the Electronic Frontier Foundation in its article "For Would-Be Censors and the Thin-Skinned, Copyright Law Offers Powerful Tools": "That copyright holders have a legal tool to get speech removed from the internet without ever setting foot in court is an anomaly in our legal system and an extraordinary advantage. No other area of law gives aggrieved parties this type of leverage to obtain extrajudicial resolution of their complaints." Before the DMCA existed, copyright holders would have to go through the court system as they would with any other tort. There is no valid reason for copyright claims to bypass due process in a prerogative not afforded to any other kind of crime, especially considering the overwhelming pattern of frivolous and vexatious abuse of the system in practice.

As such, one solution could be to simply to return to the traditional litigation-based system of addressing copyright infringement. Although not perfect -- no form of litigation is -- having stringent requirements to actually prove copyright infringement in court against human legal experts would significantly reduce abuse. For instance, vexatious plaintiffs attempting to use alleged copyright infringement as a substitute for defamation (a tort that is notoriously difficult to prosecute, and rightly so considering the First Amendment) would not be enabled as they are now; "the defendant lied and said mean things about me" is not in fact a valid argument in the realm of intellectual property law, despite how frequently it is used as rationale for false DMCA takedowns. On a related point, although DMCA claims are theoretically "under penalty of perjury", in practice willful and malicious misrepresentation virtually always goes unpunished regardless of the damage it causes. Therefore, of course, implementing strict penalties for lying and perjury would act as yet another deterrent to the rampant exploitation seen today.

In an age where many ethical conundrums surround the internet, the DMCA takedown system remains a uniquely serious threat to freedom of speech and due process rights. Though theoretically designed to protect against copyright infringement, in practice it is more often used as a cudgel against criticism, competition, and other legal fair use material a bad actor might wish to censor. Lack of manual review before censoring alleged infringement and de facto lack of punishment for perjury all but encourage bad-faith abuse of the system. While amending this unjust loophole may result in less convenience for legitimate copyright holders, the benefits from properly upholding our American First and Fifth Amendment rights would drastically outweigh any inconvenience on a societal scale. Many people who have not been targets of DMCA takedown abuse themselves are unaware of the extent of the problem, but understanding it is a key prerequisite to solving it and building a world truly free of censorship.

Notes

[1] Several websites have cited a now-defunct NZ PC World article claiming that Google had found 57% of DMCA notices were filed by businesses against their competitors and, most saliently, 37% of notices were not valid cases of copyright infringement. However, upon further investigation, the real 37% statistic referred to claims that "targeted sites apparently outside the United States" -- making them invalid DMCA claims in that sense, as the DMCA is a U.S. law, but having no relation to the frivolous and vexatious false claims that are the chief concern regarding civil liberties. There remains, as far as I could find, no statistic on that.

Works Cited

Alter, Alexandra. "A Feud in Wolf-Kink Erotica Raises a Deep Legal Question." The New York Times. www.nytimes.com/2020/05/23/business/omegaverse-erotica-copyright.html

Ellis, Lindsay. "Addison Cain's lawyer e-mailed me, and it only got worse from there." YouTube, uploaded by Lindsay Ellis, 23 October 2020, www.youtube.com/watch?v=K3v5wFMQRqs

Farhi, Paul. "A newspaper vanished from the internet. Did someone pay to kill it?" The Washington Post. www.washingtonpost.com/media/2022/12/14/hook-charlottesville-vanished-archive/

Gagliano, Cara. "For Would-Be Censors and the Thin-Skinned, Copyright Law Offers Powerful Tools." Electronic Frontier Foundation. www.eff.org/deeplinks/2023/01/would-be-censors-and-thin-skinned-copyright-law-offers-powerful-tools

"RIAA v. The People: Five Years Later." Electronic Frontier Foundation. www.eff.org/wp/riaa-v-people-five-years-later

"The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary." United States Copyright Office. www.copyright.gov/legislation/dmca.pdf

Trendacosta, Katharine. "Cops Using Music to Try to Stop Being Filmed Is Just the Tip of the Iceberg." Electronic Frontier Foundation. www.eff.org/deeplinks/2021/02/cops-using-music-try-stop-being-filmed-just-tip-iceberg

"US officer plays Taylor Swift song to try to block video." BBC News. www.bbc.com/news/technology-57698858