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How to gag your enemies using the DMCA

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The Register received our first DMCA (Digital Millennium Copyright Act) take-down notice in September.

We had in good faith published a photograph supplied to us by the subject of an otherwise uncontroversial article. A few days later, one very annoyed photographer emailed us claiming copyright for the picture and demanded its removal, or a fee.

We asked the article's author to check his claims. We established that the angry emailer was indeed the copyright owner and duly removed the photograph.

But we were not quick enough for him. In the meantime, he had fired off a DMCA take-down notice to our webhost in the US. The company in turn sent us a letter telling us to remove the photograph - which we had already deleted - and set us a deadline to confirm in writing that we had done so.

Otherwise it would "suspend network access to the server hosting the website". The deadline was 2AM GMT, not a time when our techies in Edinburgh are usually at work. A suspension would have affected all our servers - including those hosted in the UK, as well as the US.

So our entire site could have been closed for business, all because of one photograph - which admittedly was not ours to republish. This did not strike us an entirely proportionate response, and it brought home to us how easy it is to use the DMCA to ambush websites housed in the US or hosted overseas by companies headquartered in the US. We are considering our options for ensuring that we do not face such a situation again.

The DMCA is supposed to protect copyright owners, but as our example shows, it can be an enormous hammer to crack a very small nut. Its safe harbor provisions mean that US webhosts and ISPs feel they have to remove entire sites from the web, to protect themselves from punishment. Take down first, ask questions later, is the order of the day. This gives copyright holders enormous scope to browbeat ISPs into acting as censors-by-proxy. Mischief-makers and bamboozlers can join the fun too.

Pissed off with an article published online? Does it have a picture in it? Claim copyright and file a DMCA takedown notice. This is not a theoretical line of attack.

10 Zen Monkeys

In September, Jeff Diehl of the website 10 Zen Monkeys wrote an article criticizing Michael Crook, the publisher of craigslist-perverts.org, for outing the respondents to fake ads he had run, claiming to be a young woman seeking casual sex. Diehl's piece included an image of Crook being interviewed by Fox News. Crook issued a DMCA take-down notice to 10 Zen Monkeys's ISP, claiming copyright of the Fox News picture. Diehl writes on his website:

"I was personally given an ultimatum to remove the material cited in the notice (a TV screen capture of Crook's appearance on Fox News Channel), or have my account canceled. Needless to say, Crook did not own the rights to the image, and even if he did, there's a little thing called 'fair use' in the context of critical commentary."

Diehl removed the picture, upped sticks and moved to another ISP - more expensive, but one who could "understand and respect free speech at least to the point of asking me for details before threatening to pull the plug on my site". He then returned the Fox News picture to the article.

Again, Crook sent a DMCA take-down notice, but Diehl's new ISP, San Francisco-based Laughing Squid, was made of sterner stuff. On its advice, Diehl sought the help of the Electronic Frontier Foundation (EFF). He struck lucky: for the digital rights lobby group has decided to go to war for him.

This week, the EFF filed civil suit against Crook for his bogus DMCA claim.

"The internet is home to passionate debate on countless important issues. It is too bad that some people find the robust exercise of free speech so frightening that they use intimidation to try to silence it," said EFF Staff Attorney Corynne McSherry.

Quite. The Register is not an entirely uncritical fan of the EFF. But in this case, it has identified an important cause to fight, and one that it should win easily enough.

Will this give America's spineless ISPs some more backbone? We can but hope. ®

Related links

10 Zen Monkeys on the DMCA lawsuit
EFF press release

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