Last month, an arstechnica report by Joe Mullin outlined how the Electronic Frontier Foundation (EFF) has joined with copyright expert Lawrence Lessig to countersue Liberation Music for what Lessig sees as an inappropriate use of a takedown order. Lessig had used a portion of a song whose rights are owned by Liberation to illustrate a point he made in a lecture that was later posted online.
Liberation issued a takedown order under the Digital Milennium Copyright Act (DMCA) and theatened a lawsuit after Lessig filed his counter notice. The threat of a lawsuit prompted Lessig to remove his video until his counterclaim is resolved. According to Lessig, who knows his copyright law, the use is not infringing because "he used a small proportion of the song, his lecture doesn't compete with the market for the song in any way, and the lecture is an entirely new creation."
The report about Liberation, Lessig and the EFF appeal reminded me of similar news from earlier this year. Cory Doctorow, on his own a fierce advocate for more open access to creative works, learned that 20th Century Fox, the studio behind the successful television series "Homeland", had sent DMCA takedown notices to sites that featured his book, also named Homeland.
Much of this work is automated, both in listing the content and responding to the request. For his part, Doctorow was good-natured about the takedown orders, humorously telling TorrentFreak:
I think you can safely say I’m incandescent with rage. BRING ME THE SEVERED HEAD OF RUPERT MURDOCH!
The same TorrentFreak coverage found that Tor Books had asked Google to remove links to another of Doctorow's titles, The Rapture of the Nerds (co-written with Charles Stross). Both Doctorow and the publisher characterized the removal request as a mistake, something that happens on occasion.
As TorrentFreak tells the story, though, links to The Rapture of the Nerds were still offline more than two months later. There is no dispute, either by the author or the publisher, that the content could be accessed legitimately via the web. But the takedown request carried the day, or more likely, the quarter.
As enacted, DMCA allows users to appeal requests to remove content when they feel its use does not infringe. While those appeals are considered, there is normally a stay of execution. Lessig's experience illustrates the imbalance that can exist, even under DMCA.
Doctorow's experience with The Rapture of the Nerds is even more troubling. The appeal was made directly to Google, one of tens of millions of requests the search engine processes each month. There is no appeal, just a queue that you enter with the hope that someday they'll reverse their censorship.
Mark Twain observed that "a lie can travel half way around the world while the truth is putting on its shoes". With takedown notices, both under DMCA and behind the scenes, it's not too hard to imagine where the presumptions of crimes can lead us.