The most common form of censorship by copyright concerns the abuse of the
Digital Millennium Copyright Act (DMCA) either by copyright holders or by the service providers. The DMCA forces web hosts to be overly sensitive to claims of copyright infringement and act as de facto
gatekeepers, infringing upon
fair use as well as facilitating abuse in the form of
bogus copyright claims.[3][10][8][11]
The lack of consequences for perjury in DMCA claims encourages censorship. This has caused temporary takedowns of legitimate content that can be financially damaging to the legitimate copyright holder, who has no recourse for reimbursement.[4][6][7] As a consequence, DMCA has enabled copyright owners to "censor academic discussions and online criticism".[4] It has also been used by businesses to censor competition.[6] It has also been used to censor investigative reporting, and suppress political speech. This includes the use of it by parties in non-democratic states, which use international law to remove content from international (Western) platforms like YouTube.[7][15][16][17][18] Modern copyright has been described as "an attractive weapon to chill speech".[3]
In the context of
American legislation, censorship by copyright has been said to violate the
First Amendment; such abuse of copyright is supposed to be limited by
fair use, but fair use has been found to be difficult to enforce due to chilling effects of copyright litigation and disparity of power between copyright holders and those seeking permission to use a work.[2][3][19] In particular, protections related to
satirical use are seen as inadequate.[20]
Censorship by copyright has also been linked to reducing
innovation,
creativity, and limiting
artistic expression. A study involving visual artists and professionals in the visual arts sector revealed that one-third have either avoided or ceased work in their domain due to worries about copyright infringement. Additionally, over half of the editors and publishers surveyed have dropped or reduced the scope of their projects because of these worries.[3][19][9] A 2005 survey of documentary makers in Canada found that 85% of them said copyright is more harmful than beneficial for their field and that it threatens their ability to produce content.[21] Such concerns have also hindered museums and libraries from
digitizing and sharing cultural and scientific materials, including works for whom no living copyright holder could be identified but which are protected by the law by default (
orphan works).[3][22][23]
The increasing prevalence of online media has led to content hosting companies developing automated solutions for copyright enforcement to help copyright holders remove alleged infringement from their services. Such solutions, however, are overprotective due to difficulties related to defining legal uses such as quotations or
fair use, as well as the lack of authoritative information about who is a legitimate rights holder for which copyrighted work.[11] They are also designed from the perspective of
assumption of guilt, as any claim made by copyright holders is automatically accepted, results in the takedown of allegedly offending material, and requires the accused to
prove their innocence.[3][10][11]
Moreover, the risks associated with making a false accusation are low: the person accused must first submit a
counterclaim to establish their copyright ownership and then take private legal action to demonstrate actual harm. They must locate the other party in order to enforce any financial compensation awarded by the judiciary.[10]
Consequentially, automated copyright detection systems built for and used by online video hosting services like Google's
Content ID have been used by governments, companies and individuals to block critical reporting.[6][12][11][24][15][25][26][27][28][29][excessive citations] In some cases, individuals have been known to play copyrighted music to disrupt streaming, recording or other activities with the intent of getting other users' videos taken down by automated systems.[30]
Earliest examples of the use of copyright law to enforce censorship relate to the British government invoking the monopoly of the
Worshipful Company of Stationers and Newspaper Makers to suppress texts it deemed problematic, such as anti-
Cromwellian and anti-
Caroline satirical writings in the sixteenth and seventeenth centuries. To circumvent the Stationers' monopoly on print, contemporary activists used a handwriting (
scribed) method of publication.[8][13][31]
It has been argued that censorship by copyright is becoming increasingly more common in the
Digital Age.[13][19] It has also been called a major element of censorship found in democratic societies, otherwise critical of the concept of censorship. Hannibal Travis wrote that "copyright largely determines the accessibility and cost of information in a democratic society, and that it grants rights holders substantial powers of censorship through the threat of prosecution for infringement".[13] Modern copyright laws and associated technologies developed to enforce it have been described as "wielded by powerful government and business officials as a weapon to censor independent news media and deter investigative reporting". Said laws and technologies have been generally developed in the
Global North, and are abused there as well, but are even more commonly abused in the Global South, where traditions and protections of free speech are weaker.[7]
Incidents described as censorship by copyright include:
1998: Canadian documentary The Kid Who Couldn't Miss was withdrawn from distribution in 1998 by the
National Film Board of Canada due to concerns that it would not generate enough revenue to pay for the renewal rights for its archival footage, which was required by copyright laws. Kirwan Cox called this ironic as "the public lost access to this film not because of political censorship [the documentary has been criticized by a number of Canadian politicians], but because of copyright censorship."[21]
2001: In 2001, American computer scientist
Edward Felten was threatened by the
Recording Industry Association of America (RIAA), which invoked DMCA, threatening to sue Felten if he went through with his planned academic conference presentation on bypassing
digital watermarks protecting media files; Felten withdrew his presentation.[4][32]
2007: A YouTube video from Brian Sapient from the "
Rational Response Squad" contained a segment from a
NOVA program called "Secrets of the Psychics" which challenged the performance techniques of
Uri Geller, an illusionist and self-proclaimed psychic. Geller demanded that YouTube take the video down, even though he claimed to own only three seconds of footage out of the entire thirteen-minute video. YouTube nonetheless removed Sapient's video and suspended his account and all videos associated with it.
Electronic Frontier Foundation (EFF) represented Sapient and claimed that Geller's abused the
Digital Millennium Copyright Act (DMCA) and eventually negotiated a settlement.[33][34]
2007: New York City activist Savitri Durkee created UnionSquarePartnershipSucks.org, a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the
Union Square area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act (DMCA) improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP also filed a copyright lawsuit against Durkee and later filed a claim with the
World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name. Electronic Frontier Foundation (EFF) filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and
fair use doctrine. The website and domain were ultimately restored.[35]
2007: As part of its campaign to raise awareness about the treatment of animals at rodeos, nonprofit group
Showing Animals Respect and Kindness (SHARK) posted a series of videos of rodeo events to YouTube. In response, the
Professional Rodeo Cowboys Association (PRCA) filed takedown demands for 13 of the videos under the Digital Millennium Copyright Act (DMCA), claiming the videos infringed their copyrights – despite the fact that the PRCA has no copyright claim in live rodeo events. Initially, SHARK's entire YouTube account was disabled, but the account was reinstated after SHARK, supported by the Electronic Frontier Foundation, sued, eventually obtaining a settlement from the PRCA.[37]
2009: In September 2009, "Photoshop Disasters"—a blog covering egregious photo editing missteps—published a photo of a
Polo Ralph Lauren ad in which the model's body was grotesquely smaller than her head. Internet culture blog
Boing Boing noticed the oddity and reposted the picture, with some additional commentary. The company sent a
DMCA threat to Boing Boing's web host as well as Photoshop Disaster's ISP, demanding that the image be removed. Photoshop Disaster's ISP apparently took the image down, but Boing Boing's web host forwarded the threat to Boing Boing staff, who asserted its
fair use rights in its response.[39]
2011 and 2015:
Universal Music Group (UMG) suppressed political speech and ignored fair use by submitting
Content ID claims and a
DMCA takedown notice against a YouTube channel that included a speech by then-candidate
Barack Obama. Obama's campaign frequently used Stevie Wonder's "
Signed, Sealed, Delivered I'm Yours" and the YouTube video included a 34-second clip of the song that is copyrighted by UMG. The videos were taken down from YouTube.[27]
2013: In 2013, journalist Oliver Hotham published an interview on his blog with Straight Pride UK, a group that expressed support for
Russian anti-LGBT law. Shortly afterward, Straight Pride UK attempted to have the interview removed from Hotham's hosting platform,
WordPress.com, claiming that they hold the copyright to their responses and had not agreed to the publication. Hotham, with support from the blog's hosting platform, successfully challenged Straight Pride UK in court; however, he was unable to collect the financial compensation awarded to him, as the other party has disappeared.[10][40]
2014: EFF claimed that a Spanish firm abuses DMCA to silence critics of
Ecuador's government.[41]
2014: In February 2014 several people involved with the
AIDS denialism film House of Numbers: Anatomy of an Epidemic filed DMCA notices against a YouTube science blogger Myles Power, who had made a video series debunking claims made in the film. Power argued that the film was fair use as criticism and education.[42] Several commentators described the notices as attempted
censorship.[43][44][45] The videos were restored several days later.[46]
2020: Turkish
Erdoğan administration has been using state-owned television channel
TRT's status as a large rightsholder, which gives it access to YouTube's ContentID filtering system, to silence critical reporting on the government issuing false copyright claims to the
Content ID system.[15]
2021: Police officers in the United States played copyrighted music to disrupt recording and streaming of their actions by activists, intending to trigger automatic takedown of recorded content by automated copyright detection systems of online video hosting services.[11][24][30]
^
abHaber, Eldar (2013–2014).
"Copyrighted Crimes: The Copyrightability of Illegal Works". Yale Journal of Law and Technology. 16: 454–501. ...censorship-by-copyright could endanger other constitutional rights, first and foremost First Amendment rights and possibly due process rights.
^
abcdefghiReid, Amanda (Winter 2019).
"Copyright Policy as Catalyst and Barrier to Innovation and Free Expression". Catholic University Law Review. 68 (1): 33–86. The attractiveness of modem copyright as a weapon to chill speech is due to four interrelated factors: (1) the ease and "ubiquity" of infringement; (2) the simplicity of asserting a prima facie infringement case; (3) the uncertainty of available defenses, like fair use; and (4) the threat of hefty statutory penalties. Censorship by copyright undermines core First Amendment principles. Copyright out of balance threatens our liberty to learn. Copyright threatens access to the building blocks of learning and culture.