Photo: East News
Nobody likes getting sued, least of all a fledgling online startup trying to squeeze its last cent into marketing and product development.This is why, when an online publisher gets a DMCA takedown notice about some of its user-posted content, the offending page gets taken down without much fanfare or even examination from the website — let the parties fight it out amongst themselves.
This is because Section 512 of the Digital Millennium Copyright Act (DMCA) provides websites with immunity from copyright infringement lawsuits so long as they follow several steps to remove infringing content when a putative copyright owner sends them notice of the infringement.
The House’s hotly debated Stop Online Piracy Act (SOPA) (the Protect IP Act is the Senate’s equivalent) seeks to up the ante by providing search engines, online advertising companies and financial service companies (e.g., payment processors) with the same “incentive” to blindly cut ties with accused infringers so as to avoid any potential lawsuit messiness.
Past DMCA Bullying
In the last several years, the DMCA’s notice and takedown provisions have been used by less than scrupulous parties to bully websites into removing competitor content which, more often than not, did not infringe any of the parties’ rights. For example:
- “Paranormalist” Uri Geller got YouTube to remove a video of a 1993 PBS piece that Geller did not own which debunked the psychic’s special abilities. The poster’s YouTube account was also suspended.
- Competitors of dancer/model/actress Elizabeth “Sky” Ordonez registered the trademark ELIZABETH SKY and got Twitter, MySpace and Facebook to take down the actress’ pages based on nonsense claims of trademark infringement.
- Most recently, Warner Bros. admitted that it did not bother to confirm whether a slew of content that it asked cyberlocker website Hotfile.com to take down actually infringed on its copyrights. (In a rare show of support for its users, the content publisher sued Warner Bros. for violating the DMCA by making a false take-down request.)
In each of the above cases, the innocent parties were ultimately successful in getting their content back online but only after having had their content down for, at minimum, the two week period that the DMCA sets out for takedown counter-notices.
In the realm of internet business, where memes and popularity swell and fade like flash floods, two weeks can seriously hurt a business.
In the above example, Elizabeth Sky was awarded $78,000 for damage caused to her “online presence.”
Of course, the above examples made the news because the victims had the resources to get lawyers and fight back. When it comes to young startups, such successful outcomes are far less likely.
Now enter SOPA, the newest, biggest bully in the yard.
Future SOPA Bullying
Given the DMCA’s great “success” in fighting online copyright infringement, Congress has decided that copyright owners (read: Hollywood studios) should have even more tools to fight copyright infringement.
Accordingly, SOPA provides online advertising platforms and payment processors with DMCA-like immunity from lawsuits if they voluntarily cut ties with accused copyright infringers.
This means that parties who previously liked to use the DMCA to hamper their innocent competitors with inconvenient two-week content “time outs” will be able to use SOPA to freeze legitimate business advertising and payments as well.
There is no question that online piracy is a serious issue that hurts legitimate copyright owners. But given the propensity for bad faith takedowns or, in Warner Bros.’s case, sloppy, mistaken takedowns, we can see why so many internet rights advocates think that Congress’ newest proposal will hurt internet business.