Copyright Law as a Tool for State Censorship of the InternetMaira Sutton, Electronic Frontier Foundation
Dec. 03, 2014
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When state officials seek to censor online speech, they're going to use the quickest and easiest method available. For many, copyright takedown notices do the trick. After years of lobbying and increasing pressure from content industries on policymakers and tech companies, sending copyright notices to take media offline is easier than ever.
The copyright law that state actors most often invoke is the Digital Millennium Copyright Act (DMCA). The DMCA was the first major digital copyright law passed in the United States, creating strict procedural rules for how and when a copyright holder can claim that uploaded content infringes on their copyright. US-based tech companies that receive these infringement notices must comply with these rules to receive their safe harbor--the protection they have from being liable for hosting unlawful user content.
The DMCA has become a global tool for censorship, precisely because it was designed to facilitate the removal of online media. The law carries provisions on intermediary liability, among many other strict copyright enforcement rules, which induce websites, Internet service providers, and other such "intermediaries" to remove content that is alleged to be a copyright infringement.
If the DMCA is US law, how can governments around the world use it to censor speech? The DMCA has become the default template for tech companies to respond to copyright infringement notices. Since many major tech companies have offices in the US, they must comply with US law. But even if they don't operate in this jurisdiction, most major companies have implemented a DMCA-style takedown procedure anyway because it has become a de facto legal norm.
It's a norm that is reinforced and exported abroad by dozens of trade agreements that carry provisions that mirror, and further entrench, restrictive interpretations of the DMCA. The South Korea-US free trade agreement (aka KORUS) and the Australia-US free trade agreement (aka AUSFTA) are just two examples. The language in those agreements were actually a lot like the DMCA. But the negotiators abstracted the language just enough so that US law could still be compliant with it, while the other countries could be pressured to enact even harsher domestic restrictions. Following their trade agreements with the US, South Korea enacted a three-strikes takedown regime, and Australia was pushed into enacting policies requiring intermediaries to terminate the accounts of repeat infringers.
Now we're seeing a disturbing trend where governments and state-friendly agencies are abusing DMCA takedowns to silence political criticism. Here are the cases we know about where governments have misused US copyright law to censor the Internet.
DMCA and State Censorship Around the World: A Timeline of Case Studies
If you know of any cases of state-mandated Internet censorship carried out through the DMCA or other copyright laws' takedown procedures, please send them to [email protected] We already track general DMCA takedowns with our Takedown Hall of Shame. Now we're looking for more cases where governments and their agencies have directly sought to censor the Internet via their own takedown requests.