EFF files suit for damages over abuse of DMCA

Aaron Schohn - Samuelson Law Technology and Public Policy Clinic - Boalt Hall, November 12, 2006

Abstract: EFF filed suit seeking damages for the alleged abuse of the DMCA. The defendant, Michael Crook, allegedly sent several take down notices to the ISP of the web magazine 10 Zen Monkeys complaining of copyright violation. While these notices were (arguably) facially invalid, the ISP was not willing to risk legal liability and obliged with the content’s removal. EFF and 10 Zen Monkeys argue that this constitutes intentional abuse of the DMCA and warrant damages for the time and effort expended by 10 Zen Monkeys and the interference with its First Amendment rights.

The Electronic Frontier Foundation (EFF) filed suit on November 1st to address the intentional abuse of the DMCA to silence (or at least impede) criticism.
EFF is representing the online magazine 10 Zen Moneys in a suit against Michael Crook for the abuse of provisions of the DMCA. EFF staff attorney Jason Schultz
suggests that “[t]his is yet another case of someone intentionally misusing copyright law to try to shut down legitimate debate on an issue of public interest.”

The issue addressed in the EFF suit reflects shortcomings in the DMCA that require the removal of material that allegedly infringes copyright in order for an ISP to adhere to the DMCA’s safe harbor provisions. The DMCA’s notice and take down procedure essentially demands that an ISP ‘act first and question later.’ In order to avoid legal liability, the safe harbor provisions require content removal after receipt of notice of infringement but before the legitimacy of the request can be determined. While the DMCA requires that only the copyright holder or authorized licensee can demand content removal, the act’s preservation of ‘safe harbor’ from liability requires immediate content removal while copyright ownership or authorization is established.

Essentially, an individual can force an ISP to remove allegedly infringing content while the copyright status of the content is determined. This effectively allows individuals to silence or disrupt critical commentary under the guise of copyright infringement.

This appears to be exactly what EFF is fighting against. Allegedly, Crook filed a take-down notice with the ISP of 10 Zen Monkeys for the removal of a screen-shot of Crook’s earlier appearance on Fox News. This take-down notice was heeded despite the fact that Fox and not Crook held the copyright of the screen-shot and the context of the picture’s use was clearly protected by the doctrine of ‘fair use.’

The practical result of sending such a DMCA notice is the short term removal of the content in question; most ISPs will not risk the potential liability of continuing to host the questioned material. In many instances, a game of DMCA notice ‘cat and mouse’ ensues. Those who post the content and who do not want to keep the content offline during the resolution of the conflict are forced to find a new ISP and re-post, this may spark the dispatch of another take down notice to the new ISP – perpetuating the game. This abuse of the DMCA effectively silences the expression of the content poster or, for the most diligent content posters, forces them to expend time and money in finding another ISP.

In the suit, EFF is seeking compensation for “the financial and personal expenses associated with responding to meritless claims and switching web hosts- as well as for the infringement to his free speech rights protected by the First Amendment.” However, more fundamentally, this type of suit reflects shortcomings in the drafting of Draconian provisions within the DMCA which contribute to the chilling effect on expression.

For more information on this story see

The techdirt article
http://techdirt.com/articles/20061101/231619.shtml

EFF’s website
http://www.eff.org/deeplinks/archives/004973.php

10 Zen Monkey’s take on the suit
http://www.10zenmonkeys.com/2006/11/01/eff-crook-dmca-lawsuit/

Chilling Effects Clearinghouse - www.chillingeffects.org

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