The law that allows copyright holders to take infringing materials off the Internet presents an attractive nuisance, inviting widespread abuse by those who want to censor political speech or shut down their competitors.
In 1996, the World Intellectual Property Organization (WIPO, the UN body that makes copyright, patent and trademark treaties) got suckered into making the "WIPO Copyright Treaty," which was the basis for the US's Digital Millennium Copyright Act and Europe's EUCD.
The laws under this treaty let people who claim that their copyrights have been infringed upon have the offending material quickly removed from the Internet, without forcing them to show any evidence that infringement has occurred. This is how the Church of Scientology and others censor their critics — just trump up a bogus copyright claim and knock the site offline.
The Chilling Effects Project tracks these abuses, and now Jennifer Urban and Laura Quilter have published a roundup of the conclusions to be drawn from the project's hundreds of collected notices.
Just as you'd expect: when you take away legal oversight of a process for suppressing speech, it is widely and ferociously abused.
Nice one, WIPO. Nice one, US Congress. Nice one, EU. You've managed to convert the Internet from a venue for unfettered free speech into a lawless zone where anyone who can write a takedown notice can make speech disappear.
* Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);
* Notices to traditional ISP's included a substantial number of demands to remove files from peer-to-peer networks (which are not actually covered under the takedown statute, and which an OSP can only honor by terminating the target's Internet access entirely); and
* One out of 11 included significant statutory flaws that render the notice unusable (for example, failing to adequately identify infringing material).
In addition, we found some interesting patterns that do not, by themselves, indicate concern, but which are of concern when combined with the fact that one third of the notices depended on questionable claims:
* Over half–57%–of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
* Over a third–37%–of the notices sent to Google targeted sites apparently outside the United States
WIPO is now considering an even more sweeping version of the treaty that gave us this regime: the new proposals floating around on ISP liability could force ISPs to not only delete material, but to shut off the Internet access of those who are baselessly accused of infringement.
(Thanks, Jen and Joe!)