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DECEMBER 3, 2014 | BY MAIRA SUTTON


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Copyright Law as a Tool for State Censorship of the Internet
When state officials seek to censor online speech, they're going to use the quickest and easiest Stay in Touch
method available. For many, copyright takedown notices do the trick. After years of lobbying
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and increasing pressure from content industries on policymakers and tech companies, sending
copyright notices to take media offline is easier than ever.
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The copyright law that state actors most often invoke is the Digital Millennium Copyright Act
(DMCA). The DMCA was the first major digital copyright law passed in the United States, SIGN UP NOW
creating strict procedural rules for how and when a copyright holder can claim that uploaded
content infringes on their copyright. US-based tech companies that receive these infringement
notices must comply with these rules to receive their safe harbor—the protection they have NSA Spying
from being liable for hosting unlawful user content.
eff.org/nsa­spying
The DMCA has become a global tool for censorship, precisely because it was designed to
facilitate the removal of online media. The law carries provisions on intermediary liability,
among many other strict copyright enforcement rules, which induce websites, Internet service EFF is leading the fight against the
NSA's illegal mass surveillance
providers, and other such "intermediaries" to remove content that is alleged to be a copyright program. Learn more about what the
infringement. program is, how it works, and what
you can do.

If the DMCA is US law, how can governments around the world use it to censor speech? The
DMCA has become the default template for tech companies to respond to copyright
infringement notices. Since many major tech companies have offices in the US, they must Follow EFF
comply with US law. But even if they don't operate in this jurisdiction, most major companies House leaders politicize
have implemented a DMCA-style takedown procedure anyway because it has become a de #PulseShooting to preserve
facto legal norm. powers for unconstitutional
warrantless searches.
https://www.eff.org/deeplinks...
It's a norm that is reinforced and exported abroad by dozens of trade agreements that carry
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provisions that mirror, and further entrench, restrictive interpretations of the DMCA. The South
Korea-US free trade agreement (aka KORUS) and the Australia-US free trade agreement (aka
AUSFTA) are just two examples. The language in those agreements were actually a lot like the This is why we fight patent
trolls:
DMCA. But the negotiators abstracted the language just enough so that US law could still be https://www.youtube.com/watch...
compliant with it, while the other countries could be pressured to enact even harsher domestic JUN 17 @ 2:16PM
restrictions. Following their trade agreements with the US, South Korea enacted a three-strikes
takedown regime, and Australia was pushed into enacting policies requiring intermediaries to
Únanse al día de acción
terminate the accounts of repeat infringers. The Trans-Pacific Partnership (TPP) and the Trans- mundial! Este 21 de junio
Atlantic Trade and Investment Partnership (TTIP) are two multilateral trade agreements that detengamos los cambios a la
may contain similarly expansive copyright terms. Regla 41 y protejamos la
privacidad.
https://www.eff.org/node/92091
Now we're seeing a disturbing trend where governments and state-friendly agencies are
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abusing DMCA takedowns to silence political criticism. Here are the cases we know about
where governments have misused US copyright law to censor the Internet.
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DMCA and State Censorship Around the World: A Timeline of Case Studies

UNITED STATES: YouTube removed a 30-second Air Force recruitment ad after lawyers for
Projects
the Air Force's Cyber Command sent a DMCA notice demanding it take it down. The Bloggers' Rights
notice was likely invalid, since US government works are in the public domain. (March
2008) Coders' Rights

CANADA: The House of Commons sent takedown notices to Friends of Canadian Free Speech Weak Links
Broadcasting for posting videos and podcasts of Parliamentary committee proceedings on
Global Chokepoints
their website. (May 2009)
HTTPS Everywhere
CANADA: The Auditor General issued a takedown to both The Globe and Mail and Scribd,
Manila Principles
for posting one section of the Auditor General's report on immigration, claiming that Manila Principles
crown copyright applies. (November 2009)
Medical Privacy Project
CANADA: Transport Canada issued a takedown notice to Scribd over an on-the-record
Open Wireless Movement
response to a journalist. (February 2012)
Patent Busting
CANADA: Department of National Defense demanded the removal of a widely discussed
leaked copy of the Canadian Land Force Counter-Insurgency Operations Manual from the Privacy Badger
site PublicIntelligence.net. It is unknown if other websites that published the document
received similar notices. (April 2012) Student Activism

UNITED STATES: The Department of Homeland Security reportedly issued copyright Student Privacy
takedowns to YouTube over some conspiracy theory videos, when federal agencies
Surveillance Self-Defense
themselves cannot own copyrights—unless it has been assigned to them, which seems
unlikely in this case. (August 2012) Takedown Hall of Shame

ECUADOR: A law firm, Ares Rights, has been sending DMCA takedown notices to dozens Teaching Copyright
of websites, companies and individuals over tweets, documentaries, and search results on
behalf several Ecuadorian state officials. (2014 and ongoing) Transparency Project

SAUDI ARABIA: A satirical show on Youtube called "Fitnah" was censored when the Trolling Effects
primary, state-funded Saudi TV channel, Rotana, sent DCMA notices to take down several
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of their videos. Later, a Lebanese TV show did a report about the takedown, and then
another DMCA notice was sent and it was also removed from Youtube. All of the videos
were later restored. (September 2014)

BRAZIL: Videos critical of 2014 presidential candidate and former governor, Aécio Neves,
have been targeted by copyright takedowns. Although the identity of the sender cannot
be confirmed, there is much speculation that Neves himself is behind the takedowns.
(October 2014)

There are likely many more notices that state actors have used to censor users. Rightsholders
are sending more and more DMCA takedowns by the year, and a telling sign of this is that
some companies have begun to quantify this abuse in their transparency reports. As
companies are increasingly being forced to be complicit in this censorship, it's now more
important as ever for them to be transparent about the notices they receive, and for them to
take advantage of the flexibility they have under the DMCA to do what they can to protect
users' speech.

If you know of any cases of state-mandated Internet censorship carried out through the DMCA
or other copyright laws' takedown procedures, please send them to maira@eff.org. We already
track general DMCA takedowns with our Takedown Hall of Shame. Now we're looking for more
cases where governments and their agencies have directly sought to censor the Internet via
their own takedown requests.

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