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.
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."