Abusing The DMCA To Shut Up Critics

Legal Issues

from the what-a-wonderful-law dept

There are plenty of problems with the DMCA, that are highlighted here often enough, but one that doesn’t get very much attention is the fact that, beyond the standard “notice & takedown” procedure, anyone who claims that their content has been infringed online can then file a claim to reveal who posted/provided/uploaded the content in question. No lawsuit needs to be filed. No proof needs to be in place to show that there was actual infringement. For obvious reasons, that has the potential to be widely abused. Three years ago, there was a case where a porn site used this provision to subpoena ISPs to find out the identity of those who visited its site. This was also at the core of the nasty court battle between various ISPs (headed up by Verizon) against the RIAA, which eventually meant that the RIAA actually had to file John Doe lawsuits before demanding the identity of people. Considering how many takedown notices are improper, it seems only reasonable that you should be required to actually, you know, prove that something wrong happened before you can find out the names of people online. Unfortunately, it’s still not the case. The EFF is fighting back against a company that has used this aspect of the DMCA to try to unmask the names of people who uploaded a video documentary critical of them. Obviously, the organization in question (a very controversial group) does not own the copyright. However, that doesn’t stop them from using the DMCA to try to find out who uploaded the documentary. The organization is claiming that they can make a DMCA claim, based on the fact that some of their copyrighted content appears in the film — though, the EFF points out that this is clearly fair use (which is allowed for the purpose of criticism). The EFF claims, and seems to have considerable support, that this is a case where the DMCA is being abused to go after critics of an organization, rather than for any real effort to protect copyrights.