How An Anti-Piracy Law Became a Tool for Online Censorship

The Digital Millennium Copyright Act has created new ways to shut down Internet speech.


In March, online video game critic Jim Sterling discovered that one of his YouTube videos had been yanked from the site due to claims of a copyright violation. The video in question was a review of an indie game called Skate Man Intense Rescue that included footage from the game. Sterling was apparently not a fan.

The yanking of Sterling's video was not an accident or a mistake. The game studio, Digpex games, filed a claim using the tools provided by the Digital Millennium Copyright Act of 1996 (DMCA) to order YouTube to take down the video. When contacted by gaming blog Kotaku, an anonymous developer from Digpex was quite clear that the reason for the claim was because the company did not like what Sterling had to say about Skate Man Intense Rescue. The developer accused Sterling of deliberately "targeting poor indie guys or new companies who have little" to defend themselves.

In the current glut of games and indie developers, it is true that a bad review from a widely followed game critic (Sterling's YouTube channel has nearly 200,000 subscribers) can be devastating to a small company. But regardless of how Digpex may feel about Sterling's comments, the DMCA is not supposed to be used to censor bad reviews. So why did Sterling's video get yanked?

In Sterling's case, it's only a temporary problem—but it's still a problem. When Sterling, or anybody else, is targeted with a request to take down content due to a claim of a DMCA violation, there is a process to counter that claim. But while that process plays out, even though Sterling knows that he's in the right legally, his video and his criticism remain offline.

Somebody didn't like her deconstruction of class war themes in "Frozen."
Credit: Bowie15 |

In a way, this frustrating process is actually intended to protect companies that host content online. Part of the DMCA shields Internet service providers and online platforms from legal liability when their customers or users post copyrighted content without their knowledge. But there also has to be a process by which copyright owners can make claims that their material has been posted without their permission and have it taken down.

Bring on the unintended consequences. As the squabble between Sterling and Digpex shows, some people are willing to take advantage of the act to use it in ways it is not intended. One of the biggest concerns about DMCA abuse is the potential for censorship. Sterling's situation is not an isolated incident, even just among video game critics.

More than a decade ago Wendy Seltzer helped found the Chilling Effects Clearinghouse, a project to track legal threats to online speech. The site Chilling Effects invites people who have receieved DMCA takedown notices to send them the information to add to their database. It's a project of the Berkman Center for Internet & Society at Harvard, partnered with other college law programs and the Electronic Frontier Foundation.

Long before the DMCA came into play, Seltzer and others observed that legal complaints would cause content to be taken down from the Internet, regardless of whether such complaints had any validity.

"A scary lawyer letter was enough to cause a post to be taken down, even when a lawyer said there was no way there was a copyright infringement or trademark infringement," she says.

The DMCA is intended as a "middle road" between a piracy free-for-all and an Internet where lawyers could simply order things to be erased. But, Seltzer says, the Internet environment right now is still weighted in favor of immediately complying with a takedown order.

"The well-lawyered-up person who wants material taken down, whether it's infringing or has nothing to do with copyright, can send a letter, and the host has little incentive except in the case of public pressure to question the legal claims and will often respond by simply taking the content down," Seltzer says. "I think this is biased against the less-well-resourced and against the less mass-interested content."

And, Seltzer notes, the DMCA hasn't actually made it harder to find pirated content online, despite the millions of takedown requests Google alone gets every single month (more than 32 million just for February 2015).

"And so the material that becomes hardest to find are the stuff that fewer people are interested in—political dissent, commercial criticism," she says.

The conflict between Sterling and Digpen is not exactly high stakes. But there are more serious examples of DMCA censorship efforts out there. The Electronic Frontier Foundation noted last year that a law firm in Spain was sending out DMCA takedown notices to try to force the removal of online content critical of the government of Ecuador, using the inclusion of images of state officials to attempt a copyright claim. BuzzFeed even received one after posting documents about Ecuador's surveillance practices.

And this is just touching on deliberate censorship. In an anti-piracy fight this big there are all sorts of accidental incidences of censorship due to overly broad or automated requests. Simply making reference to characters from teen vampire series Twilight on a page or in connection to other works has prompted completely inappropriate takedown requests, for example. There is often little interest in evaluating fair use when these mass removal demands are sent out.

Even securing actual permission to use copyrighted content isn't always enough. In 2012, the morning after the first big day of events at that year's Democratic National Convention, all of the videos of the speeches were temporarily blocked by YouTube due to 11 automated copyright claims, likely triggered by music and news clips played at the convention. YouTube said it was an accident, the issue was eventually sorted out, and the speeches were restored.

Can this mess be fixed? Some experts are actually worried about it getting even worse. The Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) would have required even stricter guidelines for trying to stop online piracy that opponents feared would shutter whole web sites rather than just removing specific pieces of content. The bills were defeated, but Internet activists have their antennas up for any possible resurrection.

Seltzer says that better education on how to counter these takedown demands would be helpful. The mechanism for people to respond to faulty demands and what steps they have to take isn't always clear. It also requires the person affected to state under penalty of perjury that they believe they have the right to post the challenged material, which can be a bit intimidating to anybody who isn't a lawyer.

There's also a procedure to punish those who habitually abuse the DMCA to attempt to censor content and sue for damages, but Seltzer said that's a rare outcome. She'd like to see that change. After all, people who repeatedly pirate content face harsher sanctions.

"People who serially offend should be subject to penalties," Seltzer says. "There should be symmetry in the treatment of severe abusers."

NEXT: University of Michigan Relents, Will Show American Sniper as Originally Planned. And Paddington Too!

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  1. One of the biggest concerns about DMCA abuse is the potential for censorship.

    Feature not bug.

    1. On that note, as far as I’m aware, Jim Sterling openly associates and sympathizes with Stalinist SJWs who believe that offensive or “hate speech” should be verboten–Gamergate and related fallout, etc. Perhaps somebody who’s more familiar with that shit can elaborate because I have zero desire to go through the raft of Twitter inanity a casual Google pulls up this fine morning.

      I’ll still defend the rights of scoundrels but I feel that’s the kind of thing that should be mentioned.

      1. offensive or “hate speech” should be verboten

        I read that as “verbatim”. “Get it right or fuck off!” would be a great hate speech slogan.

      2. Here is Sterling saying “yes absolutely” while Adam Sessler says it is OK to Dox critics.

        Also should be noted mundane matt had his video taken down by Zoe Quinn via DMCA which criticised Nathan Grayson and Zoe Quinn over Nathan Grayson not disclosing his relationship with Zoe when he wrote positive coverage of her game. Sterling had no problem with that take take down despite it happening in August well before Sterling had his taken down in March.

        Sterling has no problem with DMCA take downs when he likes the developer.

    2. Exactly.

      And on issues of the copyright monopoly, readers should take a look at Rick Falkvinge’s blog. He nails it, repeatedly.

  2. A lot of DCMA claims on YouTube are completely automated. Is there any recourse for that?

    1. The fact that it’s automated means nothing, even if the takedown is permanent, unjustified and goes to court for resolution. A judge may ask why Google doesn’t have an actual person review the demands first but saying “we receive tens of millions a month” is likely sufficient.

      Of course, maybe if demands took longer to process by involving at least the cursory review of actual human senses and not an algorithm, there wouldn’t be so many to begin with?

      1. Admittedly, I don’t know the text of the law. But it’s odd that youtube provides the automated tools for pre-emptory copyright claims. I guess there’s no downside for false positives.

        But then you have things like the Rand Paul video taken down for no reason (drink).

        1. I guess there’s no downside for false positives.

          Bingo. In practice, there’s no negative consequences for unfounded claims.


      Basically, it’s a total joke which will take months and months and repeated refilings of 27B/6s that no human ever sees.

      1. Interesting bit about “megatube”. Sounds like copyright trolls are leveraging this.

    3. None – but that’s what happens when your entire global network is run by three interns in Hyderabad.

    4. Vimeo? Daily Motion? Don’t monetize?

  3. I refute you. With SCIENCE

    After the Sandy Hook tragedy, reporters often called me to ask for information on firearms. They wanted to know whether strong gun laws reduced homicide rates (I said they did); and, conversely, whether permissive gun laws lowered crime rates overall (I said they did not).

    I discovered that in their news articles journalists would write that I said one thing while some other firearms researcher said the opposite. This “he said, she said” reporting annoyed me, because I knew that the scientific evidence was on my side.

    One of the reporters I complained to said that he had covered climate change for many years. He explained that journalists were able to stop their “balanced” reporting of that issue only when objective findings indicated that the overwhelming majority of scientists thought climate change was indeed happening, and that it was caused by humans.

    So I decided to determine objectively, through polling, whether there was scientific consensus on firearms.
    Having cherry-picked a sample, I asked, “Do you agree with all right-thinking people?” [“scientific consensus” not same as “consensus of ‘scientists'”]

    1. Harvard and “public health” to boot, eh. I’m shocked, shocked.

    2. because I knew that the scientific evidence was on my side

      Paging Anthony Trollope…

    3. The science pretty much is settled. Not in the way he would like, though.

      That’s why he has to pull this survey bullshit.

    4. I have the odd feeling he’s never been mugged, robbed, or attacked.

      What a cunt.

    5. So I decided to determine objectively, through polling

      I stopped reading at that point.

    6. So, they polled scientists about gun laws? Why? Why would a scientist’s opinion on gun laws be any more relevant than an accountant’s?

      I know for a fact plenty of scientists have some of the dumbest views on economics you can find, as dumb as the average American. A scientist may be expected to know more about whatever particular thing he studies, but little else. Be nice if people would stop grasping at straws to find experts to defer to and just do the thinking themselves.

  4. Finally, there is consensus that strong gun laws reduce homicide (71 percent vs. 12 percent).

    How many Chicagoans were in that sample?

    1. I would like to see an anonymous survey of pre looted taxpaying Baltimoreians and post looted taxpaying Baltimoreians .

  5. YouTube, et al, have a strong incentive to censor the offending work under the law as written. Being in violation of the DMCA can bring harsh sanctions against the host by the alleged copyrights-holder if the host doesn’t act “expeditiously” to cure the infringement but there is nothing equivalent the owner of the censored work can do against YouTube for an unjustified censor.

    This admittedly crappy host “safe harbor” was an almost not-included amendment to the DMCA, if you want to find a silver lining.

    1. According to the law, YouTube is free to repost the video against which a claim has been made as soon as they receive a counterclaim notice from the poster. They can then leave the video up without losing their “safe harbor” protection until they are notified that the matter has been settled in court in favor of the claimant. In practice, they shift the burden of proof to the poster of the video, and demand proof that it is NOT infringing before they’ll repost it. This is complicated by the fact that they WON’T TELL YOU exactly what in the video is alleged to be infringing, nor will they give you contact information for the claimant. (Of course, YOUR contact info IS sent to the claimant, making the DMCA process a great tool for stalkers.)

  6. My dear, the next five minutes can change your life!
    Give a chance to your good luck.
    Read this article, please!
    Move to a better life!
    We make profit on the Internet since 1998! ?????

  7. There are anti-SLAPP statutes, apply that to serial abusers of the system. Google can’t individually respond to each takedown request because it gets so many it has to use an automated system; I’m assuming the big media companies have automated systems that send out the takedown requests. No humans are involved in the procedure on either end. If your spambot keeps sending my spambot spurious takedown requests, why can’t I place you on the DNC list and ignore you – or sue the shit out of you for repeatedly filing false claims?
    It seems to me that Google would have a fairly decent defense against an infringement suit for a takedown request they ignored if they can point out this particular company sends out hundreds of bogus ones. If your fire alarm goes off accidentally dozens of times every day, I think you would have a hard time suing the fire department for not showing up quickly enough the one time it goes off for real.
    And the fact that state bar associations don’t do a damn thing about lawyers sending out entirely spurious threatening letters tells you all you need to know about the state bar associations – they’re not there to protect the public from shady lawyers, they’re there to protect shady lawyers from the public. A takedown request is a legal demand – where the hell are the lawyers insisting it get done in a proper manner?

  8. For anyone brave enough, here’s Jim’s version of events:

  9. Similarly, source code is speech, unless it modifies your property that the original maker didn’t want you to change, in which case the DMCA trumps the First sale doctrine. I posted this the other day, but the DMCA is coming to cars:…..r-repairs/

    1. Ha ha ha. These assholes are just opening the door for stand-a-lone ECUs. In fact some are already available plug and play. AEM could make a killing on this. Of course you could likely loose a lot of these new traction control but who cares? Good old 90’s ABS has been good enough for my asshole driving.

      Double bonus, a 3rd party ECU could remove a lot of nanny state nonsense like the event data recorder, govenor controls, and any new GPS tracking.

      1. I’m sure they thought of that and will be part of new regs. Kinda like how you can’t move or touch O2 sensors, or traction control or data recorder like you mentioned. If the burdern is on the owner for compliance, I think people will do it anyways and just switch parts back during a smog check every few years.

        But if they go after distributors then the aftermarket scene may be pushed underground. This is what is done for software that is used bypass DRM. They are all hosted in non-DMCA-respecting countries. However, that’s not possible with hardware. Currently, some of the nanny functions, though their implementation is mandated, allow the driver to disable, like traction control or speed limiting (new cars have speed limit sensors). But this kind of DMCA application to the aftermarket for ECUs would make removing those options and mandating nannying features more feasible.

  10. Why the fuck would I want a car which will stab the brakes or refuse to accept steering inputs and possibly get me killed as I’m hacking my way through traffic?
    I’ll keep my old beaters, thanks.

    1. The 1965 Hoonigan Mustang, a hi-tech beater – lovely fusion of old school and new.

      (although the only original part remaining is the roof)

  11. It also requires the person affected to state under penalty of perjury that they believe they have the right to post the challenged material, which can be a bit intimidating to anybody who isn’t a lawyer.

    Heh…what is your favorite color?

    1. And note that it does NOT allow you to challenge a claim on the grounds that the person making the claim does not own the rights to the material. You can only assert that you DO have the rights.

  12. I’m making $86 an hour working from home. I was shocked when my neighbour told me she was averaging $65 but I see how it works now. I feel so much freedom now that I’m my own boss. This is what I do…… http://www.Jobs-Fashion.Com

  13. my Aunty Sophia just got a nearly new BMW X4 SUV just by some parttime working online with a lap-top
    This is wha- I do…… ??????

  14. uptil I looked at the paycheck which was of $6898 , I have faith …that…my father in law was actually erning money parttime from their computer. . there neighbor had bean doing this for less than nine months and at present cleard the loans on there apartment and got a great new Nissan GT-R:…… ??????

  15. my roomate’s half-sister makes $71 /hr on the computer . She has been laid off for 5 months but last month her pay was $17321 just working on the computer for a few hours
    …… ??????

  16. First (semi) famous adulterer unmasked: Josh Duggar

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