New “Twibel” Defamation Opinion Suggests Online Speech May Be Special After All

Twibel

Many lawyers smirked and scoffed a few months ago when the popular press began touting the Courtney LoveTwibel” trial as a “landmark” case that would set a “major precedent.” In fact, as discussed further elsewhere, it was nothing of the kind. In case you don’t already know, “Twibel” is just a silly concatenation of “Twitter” and “libel,” coined by the media to overhype a case which, apart from the involvement of a celebrity, was just a run-of-the-mill defamation claim that happened to involve Twitter. The excessive attention paid to the matter was premised on the notion that Twitter speech is somehow legally different than other speech, and the consensus among most attorneys was that this notion was nonsense.

However, an opinion issued on April 14, 2014 by Judge Dennis Saylor of the District of Massachusetts may cause some to rethink — not whether the Courtney Love trial was important (it wasn’t) — but whether defamation claims based on internet speech may be treated a little bit differently than claims based on traditional speech.

The Case of the Missing Horse

The facts alleged in Feld v. Conway are sparse. In November 2010, Mara Feld sent her retired racehorse away to become a companion horse. For reasons unknown, the horse disappeared en route and likely was slaughtered. The fate of the horse became the subject of online discussion.  In the context of that discussion, Christine Conway posted the following Tweet: “Mara Feld . . . you are fucking crazy!”

In 2013, Feld filed a complaint against Conway alleging that the Tweet was defamatory. Conway brought a motion to dismiss, arguing that the Tweet was protected opinion as a matter of law, and thus could not be the subject of a defamation claim.

Opinion and Context In Defamation Cases

Accusations of mental instability are often the basis for defamation claims, but many of them end up getting dismissed. This is because, in most cases, a court determines as a matter of law that the statement is not an assertion of fact, but rather a pure opinion protected by the First Amendment. Making this critical fact/opinion distinction requires that the court examine the statement in its totality and in the context in which it was published. For example, in Greenbelt Cooperative Publishing v. Bresler, the Supreme Court held that a newspaper had published protected opinion when it described a real estate developer’s negotiating position at a public meeting as “blackmail.”  When placed in context, which included the entire article and the newspaper’s multi-article coverage of the public meeting, it was clear “even [to] the most careless reader” that the use of the term was rhetorical hyperbole (i.e., opinion) and not the accusation of an actual crime (i.e., an assertion fact).

What is the Proper Context for Internet Speech?

Here, Feld argued that the proper context for analyzing the “fucking crazy” statement was the Tweet alone. Indeed, if you type Feld’s name into a search engine, the Tweet will come up by itself without any context. In other words, according to Feld, it’s as if the newspaper defendant in Greenbelt had simply printed “[Plaintiff] committed blackmail” by itself with no further explanation.

However, Judge Saylor disagreed, and held that the proper context was the entire “heated internet debate.”  In that context, Judge Saylor wrote, it was obvious that the Tweet was an opinion, and therefore the case should be dismissed.

Fair enough, but exactly how did the Court defined the scope of this “heated internet debate”? Neither the allegations nor the parties’ briefs provide any information about where on the internet this debate was taking place, or how and by whom it was being read.  Was it all on Twitter, or did it take place in part on other social media or in some obscure equine discussion forum? In describing the appropriate context in this case, the Court referred vaguely and without citation to a “great debate on Internet sites,” while citing only the single Tweet at issue and one article in the Worcester Telegram.

So what is the proper context when determining whether internet speech is an assertion of fact or an opinion? In Greenbelt, the Supreme Court assumed for purposes of its legal analysis that the readers of the term “blackmail” had also read the rest of the newspaper, so the proper context included multiple explanatory articles on the same topic. Here, Judge Saylor appears to assume that anyone who saw this single Tweet would also somehow know about the rest of the debate, wherever online it was occurring. In other words, the proper context for determining whether an online statement is protected opinion could be as wide as the entire internet, or at least anywhere on the internet where the same topic is being discussed.

Seems pretty broad. Perhaps “Twibel” is special after all.

Pick Your Passion: State’s Trademark May Be Used To Criticize Its Governor

LA1

In Dardenne v. MoveOn.org, the Middle Louisiana Federal District Court faced a conflict between trademark protection, on the one hand, and the First Amendment’s protection of political advocacy, on the other.  The Court concluded that trademark law cannot be used to suppress political advocacy, at least in the absence of a compelling need to protect the mark and a demonstrable likelihood of confusion.

The State of Louisiana, through the office of the Lieutenant Governor, had previously registered and used “LOU!S!ANA Pick your Passion” as a trademark for its LA2tourism industry. In 2014, the political advocacy group MoveOn.org erected a billboard next to a Louisiana interstate, which reads “LOU!SIANA Pick your passion!  But hope you don’t love your health.  Gov. Jinal’s denying Medicaid to 242,000 people.”  This was a message of protest against the state’s health care policies, specifically Governor Bobby Jindal’s rejection of Medicaid expansion funding available under the Affordable Care Act (sometimes referred to as “Obamacare”).

Louisiana sued MoveOn.org for trademark infringement, on the theory that the advocacy group should be prohibited from using the state’s own trademark to criticize its governor, and moved for a preliminary injunction. On April 7, 2014, the Court rejected this request.

Louisiana Fails to Clear Court’s Three Hurdles

The Court recognized that Louisiana was effectively asking it to suppress MoveOn.org’s criticism of the state’s public policies, in other words, to suppress political speech at the core of the First Amendment’s protections.  Drawing from First Amendment and trademark jurisprudence, as well as from the traditional preliminary injunction standard, the Court demanded that Louisiana clear three hurdles in order to justify to the suppression of the billboard by preliminary injunction.

First, the Court required Louisiana to “demonstrate that its interest in protecting its service mark from unauthorized use by MoveOn.org is compelling and that the injunctive relief sought is narrowly tailored to achieve that interest.”  The court found no such interest.

Second, the Court required Louisiana to show a likelihood of confusion in the mind of the reasonable consumer.  Louisiana argued that consumers would somehow “be confused into thinking that the Lieutenant Governor, as the alleged owner of the mark, is being critical of the Governor.”  The Court found that this argument underestimated “the intelligence and reasonableness of people viewing the billboard.”  Given MoveOn.org’s obviously parodic message, the Court found it “inconceivable” that a reasonable person viewing the billboard would perceive it as Louisiana’s attack on its own governor.

Third, the Court required Louisiana to show that it would be irreparably harmed if MoveOn.org’s billboard remained.  There was no such showing, particularly in view of the lack of confusion.

Because Louisiana could not demonstrate all, or even any, of these three factors, the Court refused to grant preliminary relief, effectively ruling that MoveOn.org must be permitted to attack the state’s governor with the state’s own intellectual property.  This outcome ensures a broad right to political advocacy, leaving little opportunity for states to leverage intellectual property rights to suppress unpopular speech.

Following this ruling, the Court calendared a scheduling conference to take place in June.  The Court’s rulings thus far suggest that Louisiana’s case faces significant obstacles to success, but there is no word yet on whether the state will nevertheless proceed with its case.

Taxation Of Copyright Sales: Ordinary Income Or Capital Gain?

Tax day presents several interesting questions for copyright holders, not the least of which is how the Internal Revenue Service (IRS) will treat income from the sale or exclusive license of a copyright.  If a copyright is a “capital asset,” proceeds from its sale or exclusive license are a capital gain rather than ordinary income, and the transaction will be taxed at a much lower rate.

Prior to 1950, whether a copyright was a capital asset was largely determined by the professional status of the author. A copyright was not a “capital asset” if could be described as “inventory” of that profession, or “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.” So, for example, in Fields v. Commissioner, the Second Circuit held that, where the taxpayer was a professional playwright, sale of the film rights to a play was a transaction “in the ordinary course” of this profession, and thus should be treated as ordinary income.

ChurchillBut there was confusion around the edges. For example, in Estate of Chandor v. Commissioner, painter Douglas Chandor had volunteered to create a portrait of Franklin Roosevelt, Joseph Stalin and Winston Churchill at the Yalta Conference, but Stalin scuttled the plan by refusing to sit. This left Chandor with a draft “study” of Churchill, which he sold in 1948 to financier Bernard Baruch for $25,000. The IRS argued that, because Chandor was a professional painter, the proceeds from the sale of any of his paintings should be treated as ordinary income. But the United States Tax Court disagreed. Although Chandor was a professional portrait painter, he had previously painted only specifically commissioned works, and had never before created a painting and then held it for sale. Moreover, the painting was only a study, and “usually these studies are never disposed of until after the death of the artist.” Therefore, it was improper to treat the painting as if it were ordinary “inventory” held for sale to customers, and the income from its sale was a capital gain.

In 1950, Congress sought to diminish uncertainty in this area of the law by passing what is now codified at Section 1221(a)(3) of the FrancisInternal Revenue Code. That section provides that “capital assets do not include … a copyright … held by … a taxpayer whose personal efforts created such property.”  In other words, individual artists like Chandor could no longer treat as a capital gain the income from the sale of the rights in their own work, regardless of the context. So, for example, in Stern v. United States, a Louisiana federal court held that, “unfortunately for the taxpayer,” the sale of the “Francis the Talking Mule” franchise by its author, shortly after this new law went into effect, had to be treated as “ordinary income.” In 2005, Congress amended Section 1221 to allow copyrights in musical works to be treated as capital assets, but other types of creative work are still subject to Section 1221(a)(3).

Notably, the IRS has indicated that the reference in Section 1221(a)(3) to “personal efforts” may limit its application to individuals, thus excluding corporations. However, in Revenue Ruling 1962-141, the IRS ruled that the sale of television broadcast rights by corporations, because it had become a common practice in the entertainment industry by that time (1962), should be treated as if it were inventory sold “in the ordinary course” of that business, and thus any profit from the sale of such rights was ordinary income. As a practical matter, this suggests that, even if a copyright holder is a corporation or an individual not subject to the “personal efforts” language, the IRS is still likely to view proceeds from the transfer of these properties as ordinary income, provided that such transfers regularly occur within the relevant industry. Businesses and individuals with questions about the appropriate tax treatment of copyright transfers should consult a specialist.

Can Private Photos Be Used In Political Ads Without Permission? Colorado Court Rejects Gay Couple’s Misappropriation Claim; Copyright Claim Survives

Capture

When we upload family pictures to the internet, we understand that, in theory, anyone in the world might download them and use them for some nefarious purpose.  However, we usually take comfort in the fact that most of us just aren’t interesting enough to be noticed. But that wasn’t the case for New Jersey couple Brian Edwards and Thomas Privitere.

In 2010, Edwards and Privitere got engaged and created one of those obligatory saccharine websites to provide information about their upcoming wedding. With the White 2permission of photographer Kristina Hill, they included on the site a photograph of themselves kissing in front of the New York City skyline. The couple were married later that year, and it would have been reasonable for them to assume that nobody was going to pay much attention to the site after that.

But in 2012, a Colorado-based entity calling itself “Public Advocate of the United States” downloaded the picture, cut out the kissing couple and repurposed the image for political flyers attacking state politicians who had expressed support for gay rights. Because they were upset that the image had been put to this purpose, the couple and the photographer brought suit in the District of Colorado for misappropriation of a likeness and copyright infringement. The defendants filed a motion to dismiss. Judge Wiley Daniel issued his opinion on March 31, 2014.

An Expansive View of “Reasonable Relations”

Judge Daniel first addressed the misappropriation claim. Under Colorado law, a defendant may not make unauthorized use a plaintiff’s name or likeness “for the defendant’s own purposes or benefit, commercially or otherwise.”  However, unauthorized use is permissible if the context is a protected First Amendment activity, such as non-commercial speech that is “reasonably related” to “matter that is newsworthy or of legitimate public concern.”

Judge Daniel found that, because the flyers did not propose a commercial transaction, they were non-commercial. Furthermore, Judge Daniel held that same-sex marriage is a matter of public concern, and “it cannot be said that the lifted portion of the photo is not reasonably related to same-sex marriage.”  On this basis, Judge Daniel ruled that the flyers were protected First Amendment Activity, and dismissed the claim for misappropriation of a likeness.

This ruling begs several questions. What does it mean to be “reasonably related” to an issue of  legitimate public concern for First Amendment purposes? Same-sex marriage is undoubtedly a subject of public concern. But Edwards and Privitere weren’t advocating for same-sex marriage — they were just getting married. Is every same-sex couple in the country “reasonably related” to this issue such that any photograph of them may be used without their consent? If the subject of public debate is the definition of marriage, why aren’t all pictures of any married couple up for grabs – straight or gay? And is this issue a special case, or does the theory extend to less controversial topics? Can I, for example, download a picture of a random stranger drinking beer in a car and use it to advocate against drunk driving?  How about a picture of a stranger’s child to advocate for increased primary school funding? Creepy.

A Copyright Coda

Appellate answers to these questions may have to wait, because the copyright claim survived.  The defendants had argued that the flyers were intended to educate voters and therefore a “fair use” under 17 U.S.C. §107, which expressly includes “nonprofit educational purposes.” In a somewhat odd opinion, Judge Daniel issued rulings on the first three fair use factors, and then held that it was premature to address the fourth (the effect on the market) prior to discovery. As to the first factor — the purpose and character of the use — Judge Daniel held that the flyer was “not the type of “educational purpose” contemplated by the statute,” and therefore not a fair use. It is not clear why the Court did not address other protected activity under Section 107 (such as “comment” or “criticism”), or whether those issues are still open for discussion.

The parties will presumably now proceed to discovery, unless one side or the other attempts an interlocutory appeal.

Does The First Amendment Allow Journalists To Lie To Their Subjects? U.S. Senator Accuses Documentary Film Makers Of Fraud

Capture

On April 1, 2014, West Virginia Senator Joe Manchin issued a press release accusing Adroit Films of fraud. Manchin had agreed to be interviewed by the media company for a documentary about the Upper Big Branch mine disaster, which caused the death of 29 miners in 2010. However, Manchin reports that when the documentary was released on March 31, 2014, he was horrified to find that it was nothing more than a propagandistic defense of Don Blankenship, the CEO of Massey Energy, who is under investigation for his role in the disaster.

Senator Manchin claims that he was deceived by the filmmakers in two ways. First, they failed to tell him that they were affiliated with Blankenship (had he known that, he would have declined to be interviewed). Second, the filmmakers told him that the film would be mostly about “mine safety,” but that was not really the case. Manchin has demanded that distribution of the film cease, and announced that he will “pursue every legal recourse.”

Possible Claims Against Lying Filmmakers

So what options are available to a documentary subject who has been lied to? It might be helpful to divide the universe of potential claims into two categories. In the first category are claims based on the content of the film itself, i.e., did the film defame the subject, or violate his privacy, or misappropriate his name or likeness? These claims would be subject to strong First Amendment defenses, especially where (as here) the plaintiff is a public official or public figure.

In the second category are potential claims based not on the content of the film, but on the way in which the film was made. Depending on the circumstances, one can imagine that some filmmakers in the process of making a documentary might trespass, or steal or — as alleged by Manchin – make a fraudulent misrepresentation. Is this second category of torts, when allegedly committed by the media, also subject to First Amendment defenses? The First Circuit considered this issue in somewhat similar circumstances in Veilleux v. NBC.

Parents Against Tired Truckers: Veilleux v. NBC

PATTIn 1993, an overtired long-distance trucker employed by Raymond Veilleux caused a fatal highway accident in Maine. After the accident, journalists working for Dateline NBC contacted Veilleux and allegedly made two important representations. First, the journalists claimed that they were making a documentary that was going to cast the long-distance trucking industry in a “positive light.” Second, Veilleux told the filmmakers that he did not want to appear in the same program as Parents Against Tired Truckers (“PATT”), an advocacy group founded by the families of the accident victims. The journalists assured Veilleux that they “had no intention of including PATT in the program.” In fact, this was false: they had already interviewed PATT for the program. Based on these representations, Veilleux granted the journalists access to one of his drivers, and the results were disastrous. The final program not only included PATT, but also included evidence of the driver’s drug use and other illegal acts. Veilleux subsequently lost customers and contracts.

Veilleux sued NBC for defamation based on the content of the program, and also for fraudulent misrepresentation based on the alleged assurances from the journalists. The jury awarded Veilleux $100,000 in connection with his defamation claim and $150,000 in pecuniary business losses stemming from the misrepresentation. On appeal, the First Circuit reversed the defamation claim on various First Amendment grounds, including because the plaintiffs had not shown that any statements in the program were materially false.

Misrepresentation Claim Not Barred by First Amendment

But the Court refused to afford the same First Amendment protections with respect to the misrepresentation claim. The Court opined that, even though the press does enjoy certain First Amendment protections when it is reporting truthful information, it does not enjoy general immunity from tort liability for the way in which (even truthful) information is acquired. Citing the Supreme Court in Cohen v. Cowels Media Co., the First Circuit held that “the First Amendment is not offended by the operation of a generally applicable law that, when enforced against the press, has merely an incidental effect on its ability to gather and report the news.” Moreover, the plaintiff here was seeking only pecuniary — not reputational — damages from the misrepresentation, so this was not a case where defamation was being disguised as something else in order to avoid First Amendment strictures.

Therefore, Veilleux’s misrepresentation claim could stand, as long as the alleged promises on which it was based were specific enough to satisfy the elements of the tort. The Court first addressed the alleged misrepresentation that the film would portray the trucking industry in a “positive light.” This promise was not specific enough to give rise to a claim of misrepresentation. However, the alleged promise to exclude PATT from the program was clear and specific, and the court held that it could support a misrepresentation claim.

But there were still additional hurdles for Veilleux to overcome. The jury had not been asked to decide if the harm to Veilleux’s business was caused “specifically and directly” by the misrepresentation about PATT. Veilleux could not “recover generally for all harm flowing from the entire broadcast,” but only the pecuniary damages arising from the fact that PATT was included in it. The Court, while acknowledging that such causation would be very difficult to prove, remanded the matter for further proceedings on the issue. Veilleux chose to settle rather than take his chances in a new trial.

Senator Manchin’s Potential Claims

So, where does this leave Senator Manchin? We assume that any case brought by the Senator would include several counts based on the content of the film: defamation, invasion of privacy, right of publicity, etc. But as to a misrepresentation claim, Senator Manchin would have to show that he participated in the film because he relied on a specific material misrepresentation made by the filmmakers. Promises about the overall content of the show may not be specific enough – after all, how much “mine safety” content is required before a film is about mine safety? But perhaps the Senator will be able to show that Adroit’s failure to disclose its affiliation with Blankenship was an omission equivalent to a specific misrepresentation. The Senator will also have to prove that he suffered non-reputational harm that was “specifically and directly” caused by this misrepresentation.

Categories: Uncategorized Comments Trackbacks

Highlights of Digital Millennium Copyright Act Congressional Hearings

On March 13, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings regarding the copyright infringement notice and takedown procedures set forth in 17 U.S.C. § 512, the Digital Millennium Copyright Act. The focus of the discussion concerned whether the DMCA fairly allocates the burdens of copyright enforcement and administration of the takedown process among copyright owners, internet service providers and internet users. Underlying the discussion was also the desire to balance the exclusive rights of content creators with the First Amendment rights of internet users or, as Representative Blake Farenthold (R-TX) put it, “I want to respect your copyright but I also want some music on my cat video.”

Representative Bob Goodlatte (R-VA) introduced the hearing by identifying three issues of particular interest to him: (1) the “whack-a-mole” problem copyright owners face, whereby infringing material that has been taken down reappears almost immediately on the same website; (2) the impact of takedown notices on fair use and the First Amendment; (3) the problem of fraudulent takedown notices.

Following is our summary of highlights from the witness testimony:

Professor Sean O’Connor, University of Washington School of Law

O'ConnorProfessor O’Connor testified about the “relentless reposting of blatantly infringing material” after a takedown notice has already been sent, which has significantly increased the overall volume of takedown notices and the concomitant administrative burdens.  At the same time, internet companies have no incentive to monitor or police content until they receive a takedown notice, in part because having “red flag” knowledge of potential infringement can cause a forfeiture of the DMCA safe harbor. Professor O’Connor proposed two ways to reduce the volume of takedown notices: (1) establishment of a “notice and stay down” procedure, either voluntarily or by legislation, to identify infringing material the first time it is the subject of a takedown notice and prevent its subsequent reposting; and (2) in order to encourage internet companies to monitor for copyright infringement, amend the DMCA so that the safe harbor can be lost by a company that is “willfully blind,” i.e., that it has an institutionalized policy prohibiting or discouraging the investigation of copyright infringement. Although courts are already applying a similar doctrine, the DMCA should define “willful blindness” in order to provide certainty to all players.

Professor Annemarie Bridy, University of Idaho College of LawBridy

Professor Bridy, by contrast, testified that Section 512 has struck the right balance between the rights of copyright owners, internet users and internet companies. Perfect enforcement is not possible, but Section 512 facilitates a fair and workable enforcement regime in which the copyright owners and internet companies share the burden.  The DMCA was intended to facilitate the global growth of the internet, and it has done just that. The administrative costs of takedown notices are decreasing with the expanding availability of automated takedown processes. Professor Bridy acknowledged that peer-to-peer networks create the biggest enforcement difficulties and were not a technology anticipated by the DMCA, the language of which exempts routing and transmission services. However, this problem has been in part addressed through voluntary efforts, such as the Copyright Alert System, by which copyright owners help internet companies identify repeat infringers.  Additionally, peer-to-peer services are becoming less popular as legal alternatives continue to emerge.

Paul F. Doda, Global Litigation Counsel at Elsevier Inc.

DOdaMr. Doda described his company’s “futile attempt to keep pace” with repeat online copyright infringement. Elsevier issued over 20,000 takedown notices per month in 2013, many of them to rogue sites which in effect harbor infringement and on which unauthorized works appear over and over.  He provided one example of a textbook that was uploaded 571 times to the same site. In order to reduce the number of takedown notices and instances of repeat infringement, Doda recommended voluntarily technical measures, in particular filtering technology to automatically remove content that “matches” the “fingerprint” of other content already known to be infringing. Such technology is already in use by Scribd and Google. Doda further recommended that Congress either require the use of such technology or incentivize its adoption by providing for injunctive relief against websites that refuse to adopt it and repeatedly repost the same infringing work.  He also endorsed suggestions by the Association of American Publishers regarding the streamlining and automation of the takedown notice submission processes.

Katherine Oyama, Senior Copyright Policy Counsel at Google Inc.Oyama

Ms. Oyama testified that the provisions of the DMCA, and the legal certainty they provide, have been an effective and important foundation to the success and growth of the modern internet and e-commerce.  The amount of material copyright owners are seeking to have removed from Google has grown, in part due to streamlined takedown procedures, from 3 million allegedly infringing items in 2010 to 230 million in 2013. Despite this growth, Google has been speeding up its takedown response time, which now averages less than 6 hours. Google’s position is that the best way to fight piracy is not to increase takedowns but to find compelling legitimate alternatives that allow copyright owners to monetize content rather than have to repeatedly remove it. Towards that end, Google has implemented Content ID technology that allow rights holders to track, monetize or block the use of their work. At the same time, Google has taken steps to discourage “rogue sites,” including by cutting off  Google advertising revenue and by calibrating the Google search algorithm so that repeat valid takedown notices will tend to lower a site’s search result ranking.

Picking up on the concept of Content ID, Representative David Cicilline (D-RI) suggested that, if the right filtering technology exists, the “whack-a-mole” problem of repeat posting could be solved by amending the DMCA to give internet service providers the affirmative duty to prevent the reposting of material that had already been identified in a valid takedown notice (i.e., take down and stay down). Ms. Oyama “underst[ood] how that would sound attractive,” but stated that she did not agree with the proposal because it would be impractical to enforce and because it would chill online speech.

Maria Schneider, Grammy Award Winning Composer

SchneiderMs. Schneider testified that the present DMCA takedown system is “broken” and that it “creates an upside down world” in which she, as an individual artist, is saddled with the impossible task of policing the internet and spending “countless hours” issuing takedown notices. Schneider proposed three solutions: (1) that content creators be able to prevent unauthorized uploading before infringement occurs, through the use of technologies like Content ID, thus effectively creating a list of content that cannot be uploaded (which she analogized to a “do not call” list); (2) shifting some of the monitoring burden to uploaders to show that the content they are uploading is not infringing; (3) encouraging systems that prevent repeat “whack-a-mole” infringement of the same work.

Paul Siemenski, General Counsel of Automattic Inc. (WordPress)Siemesnki

Mr. Siemenski testified that, while the DMCA “process works well overall,” his company has seen firsthand the shortcomings of the system, which include (1) the abuse of the DMCA takedown process; (2) the heavy compliance burden on companies who try to fulfill their DMCA obligations in a responsible manner; (3) the lack of any recognition of fair use in the DMCA; and (4) that the counter-notification process does not work for most internet users because it is complicated, intimidating and requires them to reveal personal information.

Mr. Siemenski’s comments on the abuse of the DMCA takedown process were particularly interesting.  We’ve previously written (here and here) about WordPress’ unusual and commendable decision to fight back against clear abuse of the DMCA, in particular where it involves attempts to censor undesirable speech. For example, WordPress joined blogger Oliver Hotham in a suit against “Straight Pride UK,” a group that was using the DMCA to censor Hotham’s article on gay rights. Siemenski provided additional examples of abuse by individuals and corporations alike, including:

  • “A medical transcription training service using forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog exposing the scam”
  • “A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper”
  • “A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices”

Representative Howard Coble (R-NC) asked Mr. Siemenski whether Section 512(f) (which provides for awards of damages and attorneys’ fees against those who make material misrepresentations in takedown notices) has been effective in deterring abuse of the takedown procedure.  Mr. Siemenski felt that the provision had not been effective. Suits are rare under Section 512(f) because of the relative imbalance of power and resources between those who typically send takedown notices and those who typically receive them. Both Mr. Siemenski and Professor Bridy suggested adding a statutory damages mechanism for DMCA takedown abuses under Section 512(f).