The misuse of the DMCA is an important topic that needs proper attention. It needs the urgent attention of Congress, ISPs, content creators, media and all stakeholders.
DMCA (Digital Millennium Copyright Act) empowers copyright owners to request the removal or disabling of materials classified as infringing content. The act allows creators to notify ISPs (internet service providers) of their intent to take down materials claimed to be theirs.
Unfortunately, people are abusing the DMCA, not minding the fair use doctrine or perjury requirements. In this post, we will discuss how DMCA misuse is taking place and share other related information on this topic. Continue reading to get more details.
What Is DMCA?
The U.S. Congress enacted the DMCA, or Digital Millennium Copyright Act in 1998 to help address copyright issues in the digital age.
The DMCA, among other things, makes provision for a takedown process. In other words, copyright owners can authorize ISPs (internet service providers) to disable or remove access to infringing materials. The materials could be articles, scientific journals, videos, and other types of content.
For instance, if you find a video you created on another creator’s YouTube channel, you can ask the platform to remove or disable the content.
DMCA is an important U.S. law, and it was designed to address an important issue. The law ensures creators are respected and recognized for their hard work. It also ensures creators receive proper compensation for their hard work.
Unfortunately, the misuse of the DMCA over the years has been a serious problem. Many copyright owners are now using it to squelch criticism or dissent, and are failing to regard fair use doctrine or perjury requirements.
Examples of Misuse of The DMCA
While some DMCA takedown requests are genuine, some have been misuse of the law. In general, the takedown requests are mostly abused.
The DMCA forbids content owners from filing false notices. Filing a false notice violates the law. Unfortunately, enforcing the provision that prohibits filing false notices is extremely difficult. Thus, people are misusing the DMCA and getting away with it.
Most individuals who file the notices utilize false aliases, making it difficult to track them down. In addition, there is a jurisdictional issue. So, it has been difficult to punish people who file false DMCA takedown notices, and this is encouraging others to follow the same path.
One dreadful part about DMCA takedowns is that once content is removed, it could take at least 10 days to restore it. In most cases, it never gets restored.
Here are examples of how the misuse of the DMCA has been happening over the years.
1: Misuse of the DMCA by reputation management companies:
As the name suggests, reputation management companies help their clients to get rid of negative content about them online. For instance, if there is bad reporting, video or content about an artist, the individual can use a reputation management company to get rid of the content.
Eliminalia is a reputation management company and has appeared in the news for the wrong reasons. Eliminalia has been accused of misusing the DMCA and its unethical practices.
A Washington Post described how Eliminalia eliminates negative information about its clients using illegal methods. The company ensures information about their clients considered damaging, or a dent on their reputation is wiped off the internet.
Eliminalia uses the copyright management law to get rid of content online. Between 2015 and 2021, the company reportedly sent thousands of copyright infringement complaints to various web hosting companies and search engines.
It uses false claims to request takedown of articles online. It usually files claims that the articles about its clients are negative, had been published elsewhere, and are, therefore, stolen.
Since Eliminalia claims the articles or content are stolen, the request to the web hosting companies and search engines are usually to remove the content or hide it. In addition, Eliminalia usually sends legal notices using made-up company names because they know that search engines, including web hosting companies, will be too busy to verify the company names.
A Handy Tip: It is possible to eliminate false information about someone using legal and ethical means. You can apply the same technique to eliminate disinformation from the internet.
The processes include countering false information. In this case, you have to fill the internet with positive information about the individual being slandered online.
Astroturfing is another ethical and legal way to counter misinformation or false information about an individual online. You can even create tons of positive press releases using AI-generated content, though this act can be considered dubious.
Eliminalia would have been better off using ethical or legal means to eliminate negative content online. Instead, they choose to follow illegal and unethical practices. The company knows the penalty for sending false copyright claims but knew they won’t be punished by the authorities.
2: DMCA misuse via automatic bots:
Many content owners are misusing the DMCA. But how are they doing it? The Electronic Frontier Foundation, or EFF, made a robust report about DMCA takedown notices content owners are sending via automatic bots.
The report shows that many of the takedown notices from content owners were for fair uses and non-infringing content. Most of the content includes commentary, criticisms and even news reporting.
The report unraveled a mystery about the takedown notices that were sent. It claimed that many of the notices were sent automatically. That means they didn’t pass through any human review to ascertain whether there was any copyright infringement. Unfortunately, the takedown notices were honored.
Even legitimate content wasn’t spared. That is how bad the automated takedown notices can be. And today, the problem hasn’t changed.
Content owners still use these automated programs to send thousands of DMCA takedown requests daily. They are constantly pressuring ISPs to remove copyrighted materials.
The painful part is that the content owners sending these automated takedown notices are blackmailing the ISPs with claims that they are hosting content infringing the copyright holders’ rights, even when there is no basis for such accusations.
A Handy Tip: Sending a false claim that your copyright has been violated when that isn’t the case is perjury and can land you in trouble. Unfortunately, no one gets punished at the end of the day.
Congress has enacted the copyright law, but only those assumed to have violated a copyright law are penalized. Those who send false takedown notices go scot-free.
Warner Bros is another example of how companies are misusing the DMCA. It often relied on automated bots to identify copyright infringers and send DMCA takedown notices to ISPs. Bots scan the internet to find infringing materials, so there is little or no human involvement in the process.
Warner Bros’ (WB) reliance on bot software is a violation of the DMCA. We all know robots cannot make the right decisions when used to determine copyright infringement. The basic thing these robots do is scan the file names, including metadata, to determine infringed copyright materials.
Now, here’s the shocking part. Warner Bros even had to accuse itself of copyright violation and request a takedown of its own materials because a robot recommended such.
In addition to its website, the Warner Bros takedown notices even affected several authorized websites and the official website for Batman wasn’t spared either. WB also targeted legitimate third-party websites such as Sky, IMDB, and Amazon.
How Misuse of The DMCA Is Impacting ISPs
Copyright violation is a serious crime, and perpetrators must face severe punishment. However, individuals or organizations that send false copyright claims must face penalties too. Otherwise, the DMCA will continue to be a one-sided law.
The abuse of DMCA takedown processes is a huge problem for free speech. Imagine a politician requesting a takedown of a survey because it doesn’t favor the person. That’s one example of how DMCA abuse is crippling free speech.
Misuse of DMCA also places a massive administrative burden on ISPs (internet service providers), including the legal system. There is a heavy burden on the internet service providers to comply with the takedown notices even though they are blatant misuse of the law.
Conclusion
The misuse of the DMCA is a huge problem that must be addressed as soon as possible. As it is today, the DMCA is a one-sided law.
Anyone can wake up and send takedown notices to ISPs without their copyrighted materials infringed. This misuse is crippling free speech, negatively impacting the motivation of content creators, and placing a huge burden on ISPs.
Since sending takedown notices is perjury, the law must punish whoever is found to misuse the DMCA. This way, the act can be put to good use and not abused.
