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Copyright owners have often used the DMCA’s notice and take down procedure to silence criticism instead of preventing copyright infringement. A recent DMCA take down involving the group Yes Men is yet another example of this phenomenon. On October 22, a website created by the Yes Men which parodied the U.S. Chamber of Commerce’s stance on a climate change bill was taken down pursuant to a DMCA notice.
The Yes Men is a group that exposes corporate greed by posing as corporate representatives and pulling off the “world’s most outrageous pranks.” Their most recent prank that caused the ire of the Chamber involved the Kerry-Boxer climate change bill. The Chamber opposes the bill even though its decision to do so has been controversial. Several members have resigned from the Chamber in opposition to its position. To criticize the Chamber’s position on the bill, the Yes Men, created a website parodying the U.S. Chamber’s website. They borrowed the Chamber’s logo and the logos of a few Chamber members. The home page of the parody website contains a letter explaining the importance of strong climate change legislation, explaining that the Chamber’s shortsighted opposition to reform may hurt it in the long term, and endorsing the Kerry-Boxer bill. The rest of the pages appear to be similar to the Chamber’s website.
Reacting to the Yes Men website, the Chamber sent a DMCA notice to Hurricane Electric, the ISP that provides hosting service to May First/People Link, which in turn provides hosting services to the Yes Men parody website. The letter alleged that the Yes Men’s website infringed the Chamber’s copyright in its website. In response, Hurricane Electric took down not only the content on the Yes Men’s parody website but also cut off service to the Yes Men and websites of 400 other organizations that got their Internet service from May First/People Link.
This episode raises several questions with respect to the DMCA’s design and its effect on free speech. But more fundamentally, it shows how overzealous enforcement of the DMCA can harm free speech. While, one can argue about whether or not the Yes Men website was a parody protected by fair use, there is no doubt that the 400 websites whose service was terminated had nothing to do with allegations of copyright infringement. Yet, Hurricane Electric terminated their service based on one allegation that one site was infringing copyright.
The take down of the website actually accused of infringement, the Yes Men website, raises question about whether the DMCA requires content to be taken down based on a mere allegation of infringement no matter how unjustified? Does the DMCA call for cutting off Yes Men’s access to the hosting service based on one allegation of infringement? And what remedy does it afford against unjust termination?
The first question seems harder to answer. At least one federal district court has rejected the argument that notice senders are under no obligation to check if a use is a fair use before sending a notice of infringement. Here the Chamber should have checked if the site was a fair use. But then it seems to have sent the notice expressly to shut down criticism - a fair use. The ISP receives a safe harbor from liability for copyright infringement by taking down content based on an allegation of infringement. This scheme encourages ISPs to take down content, even where the content may be clearly noninfringing.
As for shutting down service to the Yes Men site, copyright law requires ISPs to maintain a policy of terminating the account of repeat infringers under “appropriate circumstances.” Courts have held that a mere notice of infringement does not constitute evidence of infringement. The copyright owner must present evidence to the ISP to show that a user is engaged in blatant acts of repeat infringement. Thus, Hurricane Electric’s termination of the Yes Men’s service based on one allegation of infringement is clearly not justified under the DMCA.
So, what is a user to do when faced with a reckless and unjust termination? The Yes Men’s parody website was relocated by May First/People Link, the website’s upstream ISP. But what about users who are not so lucky? While the DMCA does not require termination based on one allegation of infringement, it does not provide a remedy to the user whose access/service has been terminated. The terms of service of ISPs, including Hurricane Electric, further ensure that users have very few options. The relevant portion of Hurricane Electric’s terms of service is below:
Hurricane Electric may, in its sole discretion, remove or terminate the account containing, on a temporary or permanent basis, materials which Hurricane Electric believes are illegal or may create, constitute, or contribute to copyright or trademark infringements. Account holder expressly waives the right to assert any claims against Hurricane Electric for any such removal or termination.
The DMCA provides incentives for takedowns and rewards ISPs with safe harbors. As a condition for these safe harbors, it requires a policy of terminating the service of repeat infringers. While not requiring terminations based on one allegation of infringement, it does nothing for those whose access is unjustly terminated. While, the DMCA safe harbors have played a vital role in development of the Internet, their design is imbalanced and extracts a heavy price on free speech. Until the law is amended to correct these imbalances, we will continue to see powerful interest silence criticism in the name of protecting copyright.