How a Loop-hole in the Digital Millennium Copyright Act Violates the First Amendment

It’s October 22, 1998: computers are the size of toaster ovens, Google and Amazon are still in their infancies, and President Bill Clinton has just signed the Digital Millennium Copyright Act (DMCA) into law, unknowingly providing corporations and individuals the ability to legally silence free speech [1]. Specifically, Title II of the DMCA, the safe-harbor provision, violates the First Amendment because its take-down notifications are exploited for the purpose of silencing criticism and inhibiting competition.

The DMCA and the State of the Internet in 1998

The DMCA is a law designed to address the concerns about copyright infringements in the age of the growing Internet. Most importantly, Title II of the bill established protections for digital service providers, so called “safe havens,” from being liable for copyright infringements committed by their users so long as they took down infringing content when notified [2]. In other words, if copyright owners see that their material is being illegally used on a website like YouTube, they can issue a DMCA take-down notification, which would obligate YouTube to remove the infringing material, protecting YouTube from legal action by the original copyright holder.

When the DMCA was enacted, the Internet was a new and booming business with novel websites and startups being created every day. This law was designed to protect a newborn industry from being stamped out by established companies like Sony or Disney through the issuance of a barrage of copyright claims. Congress could never have imagined today’s era, when the most powerful corporations in the world are built on the Internet. Thus, while well-intentioned, the DMCA and the modern state of the Internet have created a loophole that allows individuals and companies to abuse take-down notifications and remove content that is traditionally protected from copyright infringement — including transformative, educational, critical, and even original works.

The Degradation of Good Faith Claims and the Misuse of DMCA take-down Notifications

The safe-haven clause and the entire system of take-down notifications is built on the assumption that DMCA take-down notifications are issued in good faith — that is, that someone is actually infringing upon copyright — when increasingly, they are not. While the initial copyright holder should not abuse the DMCA, the onus falls on digital service providers to ensure that take-down notifications are issued in good faith. However, because digital service providers are only protected from copyright infringement if they take down the material, it is simply too time-consuming and expensive to ensure that every single notification is made in good faith. Thus, companies like Amazon and Google simply remove material when a DMCA take-down notification is issued against it [3]. The safe harbor provision was not written for the current context, when the most powerful companies in the world are the ones being protected. Because any content against which someone issues a take-down notification gets removed, the DMCA is used by large companies and smaller creators alike to squash competition and silence criticism. The self-published books industry on Amazon and on YouTube embodies the deleterious consequences of this phenomena. 

While the self-published books industry is rather niche and filled with smaller creators, it still regularly serves as the forum for bad-faith DMCA take-down notifications. In one notable case, romance author Addison Cain issued a notification against a rival author, Zoey Ellis, before Ellis’s book was even published, and Ellis’ pre-order listing on Amazon got taken down [4]. After Cain filed the take-down notification, Amazon was then obligated to remove Ellis’ book or risk legal action from Cain. Amazon was supposed to ensure that Cain’s claim was made in good faith, but it did not. Cain was aware of Amazon’s history of failing to do due diligence in previous cases. Unsurprisingly, Amazon removed Ellis’ book from its website, allowing Cain to successfully remove a competing author from the market. 

On YouTube, bad-faith DMCA take-down notifications are usually targets of criticism for the “copyright” holders. Ironically, when YouTuber Lindsey Ellis (no relation to Zoey Ellis) criticized Cain for her abuse of the DMCA in one of her videos, Cain issued another notification against the video [5]. While Ellis was able to fight the take-down notification and get her video re-uploaded, this is a rare outcome; usually, YouTube would remove the video.

Bad faith DMCA take-down notifications are especially harmful to small creators. The time and legal fees needed to fight a bad-faith claim and reinstate one’s work are often insurmountable for smaller creators, so their work remains removed from the host site. Essentially, the loophole within the DMCA allows for the systemic silencing of smaller creators.

How the DMCA Violates the First Amendment

Because companies like Amazon and Google do not check to make sure take-down claims are made in good faith, and since most content that is taken down remains removed, agents are able to have critiques of them or their company taken down without any repercussions. If a company wants to have criticism about itself erased from the Internet, it can. In other words, one’s ability to expose, pass judgment, or even comment on an individual or corporation online is severely limited. If a person’s ability to speak truth to power is being materially curtailed, then freedom of speech is being infringed.

However, this issue is not limited to criticism — freedom of expression in general is limited by the threat of DMCA take-down notifications. Indeed, all forms of work are taken down, not merely criticism. For example, transformative pieces of work have been taken down because a robot recognized Warner Brothers’ copyrighted material in the title [6]. This is concerning because criticism and transformative works are protected by copyright law, yet they are still taken down. While removing transformative works because of bad faith notifications is already evidence that the DMCA permits the violation of freedom of speech, what is even more damning are examples of original works being removed.  The Amazon self-published books industry highlights how people’s ability to freely express themselves is severely limited by bad-faith DMCA take-down notifications. Works that should be protected by copyright laws and original works are being regularly removed from the Internet, and thus freedom of speech is being suppressed, due to a loop-hole in the safe haven provision. 

Our access to new stories and ideas is limited by actors seeking to thwart competition in smaller industries — and those actors are able to do so because of the DMCA. Our ability to hear criticism of and to criticize corporations is being restricted by the DMCA. This was a law that was originally designed to protect small businesses and freedom of information, but it is now being used against those very things.

References

[1] “The Digital Millennium Copyright Act of 1998,” 1998, 18.

[2] Winston & Strawn. “What Is the DMCA? | Winston & Strawn Legal Glossary.” Accessed October 10, 2021.

[3] Lindsay Ellis. Into The Omegaverse: How a Fanfic Trope Landed in Federal Court, 2020. 

[4] Alter, Alexandra. “A Feud in Wolf-Kink Erotica Raises a Deep Legal Question.” The New York Times, May 23, 2020, sec. Business. https://www.nytimes.com/2020/05/23/business/omegaverse-erotica-copyright.html.

[5] Ibid.

[6] Kennedy Law, P.C. “Continuing DMCA Abuse,” September 6, 2016. https://www.saklaw.net/continuing-dmca-abuse/.