Censorship by copyright explained

Copyright can be used to enact censorship. Critics of copyright argue that copyright has been abused to suppress free speech,^{[1] [2] [3]} as well as criticism,^{[4] [5]} business competition,^[6] academic research, investigative reporting (and freedom of press) and artistic expression.

The most common form of censorship by copyright concerns the abuse of the Digital Millennium Copyright Act (DMCA) either by copyright holders or by the service providers. The DMCA forces web hosts to be overly sensitive to claims of copyright infringement and act as de facto gatekeepers, infringing upon fair use as well as facilitating abuse in the form of bogus copyright claims.^[7]

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). This has also led to chilling effect, self-censorship or abuse from copyright trolls.

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. As a consequence, DMCA has enabled copyright owners to "censor academic discussions and online criticism". It has also been used by businesses to censor competition. 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.^{[9] [10] [11] [12] [13]} Modern copyright has been described as "an attractive weapon to chill speech".

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.^[14] In particular, protections related to satirical use are seen as inadequate.^[15]

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.^[16] A 2005 survey of documentary makers in Canada found that 85% of them said copyright is more harmful than beneficial for their field and that it threatens their ability to produce content.^[17] Such concerns have also hindered museums and libraries from digitizing and sharing cultural and scientific materials, including works for whom no living copyright holder could be identified but which are protected by the law by default (orphan works).^{[18] [19]}

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.^[20]

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.

Automated copyright enforcement

The increasing prevalence of online media has led to content hosting companies developing automated solutions for copyright enforcement to help copyright holders remove alleged infringement from their services. Such solutions, however, are overprotective 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. They are also designed from the perspective of assumption of guilt, as any claim made by copyright holders is automatically accepted, results in the takedown of allegedly offending material, and requires the accused to prove their innocence.

Moreover, the risks associated with making a false accusation are low: the person accused must first submit a counterclaim to establish their copyright ownership and then take private legal action to demonstrate actual harm. They must locate the other party in order to enforce any financial compensation awarded by the judiciary.

Consequentially, automated copyright detection systems built for and used by online video hosting services like Google's Content ID have been used by governments, companies and individuals to block critical reporting.^{[21] [22] [23]} In some cases, individuals have been known to play copyrighted music to disrupt streaming, recording or other activities with the intent of getting other users' videos taken down by automated systems.^[24]

Tools used in content moderation have been subject to similar criticism.

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.^[25]

It has been argued that censorship by copyright is becoming increasingly more common in the Digital Age. 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".^[26] 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.

Incidents described as censorship by copyright include:

• 1998: Canadian documentary The Kid Who Couldn't Miss was 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."
• 2001: In 2001, American computer scientist Edward Felten was threatened by the Recording Industry Association 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.^[27]
• 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.^{[28] [29]}
• 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.^[30]
• 2007: The destruction of a recreation of the School of Magic and Wizardry from the J.K. Rowling's Harry Potter 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.^[31]
• 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.^[32]
• 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.^[33]
• 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, who asserted its fair use rights in its response.^[34]
• 2010: The newspaper Folha de São Paulo took advantage of the copyright issue so that a parody, with the name FALHA DE SÃO PAULO, created in the context of the 2010 electoral dispute in Brazil, was banned with its domain from the Brazilian internet. This parody aimed at the issue of whether the newspaper, despite selling itself as having an impartial position, actually used such an appearance to serve its own political and commercial interests. Lino Bocchini and his brother, responsible for such a parody, were prosecuted and the dispute lasted for years in the Brazilian judiciary. The use of the copyright issue as a means of censorship in this case is obvious given that there are several publications that use typography similar to that of this São Paulo newspaper that were never notified in court, contrary to what happened with such a parody. ^[35]
• 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.
• 2011 and 2015: Universal Music Group (UMG) suppressed political speech and ignored fair use by submitting Content ID claims and a DMCA takedown notice against a YouTube channel that included a speech by then-candidate Barack Obama. 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.^[36]
• 2012: Danilo Gentili, a well-known Brazilian comedian and presenter, also used copyright censorship to ban a documentary produced dealing with the limits of humor published by La Sombra Ribeiro on YouTube. This issue was part of a series of developments in a fight that involved a discussion on Twitter and legal actions by both parties involved.
• 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 the blog's hosting platform, successfully challenged Straight Pride UK in court; however, he was unable to collect the financial compensation awarded to him, as the other party has disappeared.^[37]
• 2014: EFF claimed that a Spanish firm abuses DMCA to silence critics of Ecuador's government.^[38]
• 2014: In February 2014 several people involved with the AIDS denialism film 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.^[39] Several commentators described the notices as attempted censorship.^{[40] [41] [42]} The videos were restored several days later.^[43]
• 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.
• 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.^[44]
• 2024: Badabun, a Mexican media company, registered and managed to remove a video from multiple internet pages for copyright reasons. It showed Jorge Máynez, a candidate for the 2024 Mexican presidential election, and Samuel García, the governor of Nuevo León, drinking alcoholic beverages at a soccer match and insulting the National Electoral Institute and opposition politicians.^[45]

See also

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

External links

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

Notes and References

1. Web site: Masnick . Mike . 26 July 2013 . Why Yes, Copyright Can Be Used To Censor, And 'Fair Use Creep' Is Also Called 'Free Speech' . 2 April 2024 . Techdirt . en-US.
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. Book: Westbrook, Steve . Composition and Copyright: Perspectives on Teaching, Text-making, and Fair Use . 9 April 2009 . State University of New York Press . 978-1-4384-2599-3 . 37-38 . en.
5. Web site: Gagliano . Cara . 20 January 2023 . For Would-Be Censors and the Thin-Skinned, Copyright Law Offers Powerful Tools . 3 April 2024 . Electronic Frontier Foundation . en.
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 . Hein Online.
7. News: Hern . Alex . 23 May 2016 . Revealed: How copyright law is being misused to remove material from the internet . 2 April 2024 . The Guardian . en-GB . 0261-3077.
8. Ghosh . Arjun . 2013 . Censorship through Copyright: From print to digital media . Social Scientist . 41 . 1/2 . 51–68 . 23611080 . 0970-0293.
9. Web site: 28 December 2020 . Turkish gov't uses TRT as a weapon to spread its censorship to YouTube . 2 April 2024 . International Journalists Association . en-US.
10. News: Palazzolo . Andrea Fuller, Kirsten Grind and Joe . Google Hides News, Tricked by Fake Claims . 2 April 2024 . WSJ . en-US.
11. Web site: Rodríguez . Natalia Krapiva, Esq, Rodrigo . 22 October 2020 . Warning: repressive regimes are using DMCA takedown demands to censor activists . 3 April 2024 . Access Now . en.
12. Web site: Vílchez . Dánae . 6 May 2020 . YouTube censors independent Nicaraguan news outlets after copyright complaints from Ortega-owned media . 3 April 2024 . Committee to Protect Journalists . en-US.
13. Web site: Stoltz . Daniel Nazer and Mitch . 19 January 2017 . Copyright Shouldn't Be A Tool of Censorship . 3 April 2024 . Electronic Frontier Foundation . en.
14. Rathemacher . Andrée J. . 1 July 2012 . Panel Discussion on Libraries and Best Practices in Fair Use . Journal of Electronic Resources Librarianship . en . 24 . 3 . 230–238 . 10.1080/1941126X.2012.706139 . 1941-126X.
15. 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.
16. 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 . en . 18 . 9 . 2012–2027 . 10.1177/1461444815575018 . 1461-4448.
17. Kirwan Cox, Censorship by Copyright: Report of the DOC Copyright Survey, Rigaud, 2005
18. The Art Institute of Chicago et. al, Comments on Orphan Works and Mass Digitization (4 February 2013)
19. Sarah E. Thomas, Response by the Cornell University Library to the Notice of Inquiry Concerning Orphan Works, (23 March 2005) #12;
20. Radsch . Courtney . 2023 . Weaponizing Privacy and Copyright Law for Censorship . SSRN Electronic Journal . 10.2139/ssrn.4464300 . 1556-5068.
21. Web site: 29 January 2019 . The Mistake So Bad, That Even YouTube Says Its Copyright Bot 'Really Blew It' . 2 April 2024 . Electronic Frontier Foundation . en.
22. Web site: Thomas . Dexter . 9 February 2021 . Is This Beverly Hills Cop Playing Sublime's 'Santeria' to Avoid Being Live-Streamed? . 2 April 2024 . Vice . en.
23. Web site: Geigner . Timothy . 30 September 2021 . Copyright Continues To Be Abused To Censor Critics By Entities Both Big And Small . 2 April 2024 . Techdirt . en-US.
24. Web site: Masnick . Mike . 4 August 2022 . Please Don't Normalize Copyright As A Tool For Censorship . 3 April 2024 . Techdirt . en-US.
25. Jenkins . Joseph S. . 2013 . Copyright Law and Political Theology: Censorship and the Forebear's Desire . Law and Literature . 25 . 1 . 65–84 . 10.1525/lal.2013.25.1.65 . 10.1525/lal.2013.25.1.65 . 1535-685X.
26. Travis . Hannibal . Spring 2000 . Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment . Berkeley Technology Law Journal . 15 . 2 . 777–864.
27. Web site: Greene . Thomas C. . SDMI cracks revealed . 3 April 2024 . www.theregister.com . en.
28. Web site: 18 November 2011 . Paranormalist Claims Three-Second Copyright in Attempt to Censor Critical Video . 2 April 2024 . Electronic Frontier Foundation . en.
29. Web site: Cheng . Jacqui . 9 May 2007 . EFF to psychic: There will be a DMCA abuse suit in the near future . 2 April 2024 . Ars Technica . en-us.
30. Web site: 18 November 2011 . Real Estate Developers Censor Community Critic's Website . 2 April 2024 . Electronic Frontier Foundation . en.
31. News: 12 October 2007 . 'Hogwarts pandal' may be pulled down over copyright . 2 April 2024 . The Times of India . 0971-8257.
32. Web site: 18 November 2011 . Cowboy Group Tries to Censor Animal Welfare Nonprofit . 2 April 2024 . Electronic Frontier Foundation . en.
33. Web site: 18 November 2011 . CBS News Censors McCain Ad During Heated Presidential Campaign . 2 April 2024 . Electronic Frontier Foundation . en.
34. Web site: 18 November 2011 . Retailer Tries to Censor "Photoshop Disaster" Advertisement . 2 April 2024 . Electronic Frontier Foundation . en.
35. Web site: 27 December 2018. A morte da Falha de São Paulo. Diário do Centro do Mundo. pt-br.
36. Web site: 12 November 2015 . Universal Music Group Censors Political Speech and Ignores Fair Use . 2 April 2024 . Electronic Frontier Foundation . en.
37. News: Hern . Alex . 9 March 2015 . WordPress in court victory over blogger censored by 'Straight Pride UK' . 3 April 2024 . The Guardian . en-GB . 0261-3077.
38. Web site: Sutton . Maira . 15 May 2014 . State Censorship by Copyright? Spanish Firm Abuses DMCA to Silence Critics of Ecuador's Government . 2 April 2024 . Electronic Frontier Foundation . en.
39. News: Palmer . Ewan . 17 February 2014 . YouTube to Terminate Account of Scientist who Debunked Aids Denialist Movie . 17 April 2015 . International Business Times.
40. News: Geigner . Timothy . 14 February 2014 . AIDS Denial Crazies Go All DMCA On Videos Educating People Of Their Craziness . 17 April 2015 . Techdirt.
41. Web site: McSherry . Corynne . 18 February 2014 . New Entrants in the Takedown Hall of Shame: AIDS Deniers and Televangelists (Updated) . 17 April 2015 . Electronic Frontier Foundation.
42. News: Kobie . Nicole . 17 February 2014 . Censorship by copyright: Myles Powers and abuse of DMCA takedowns . 17 April 2015 . PC Pro.
43. News: Palmer . Ewan . 19 February 2014 . Scientist's YouTube Account Remains Open Following Aids Denialist Censorship Claims . 17 April 2015 . International Business Times.
44. Web site: How Copyright Bots are Governing Free Speech Online . 2 April 2024 . Digital Freedom Fund . en-GB.
45. Web site: Redes y medios retiran el polémico video de Máynez y Samuel García por derechos de autor. es. El País. 10 February 2024. David. Marcial Pérez. Networks and media remove the controversial video of Máynez and Samuel García due to copyright issues. 17 April 2024.