HOWARD HALLIS is a comic book artist who made a big mistake. He used his website to publish parodies of Chick Tracts 鈥� Christian comic books chronicling the adventures of mixed-up teenagers who are rescued from lives of sex, drugs and Dungeons and Dragons when they find Jesus. Hallis drew a 鈥淐thulhu Chick Tract鈥� in which the confused youths eschew Jesus in favour of Cthulhu, H. P. Lovecraft鈥檚 infamous, slimy demon of the deep. Soon after Hallis posted it, his internet service provider received a letter from lawyers representing Chick Publications, ordering the ISP to take down Hallis鈥檚 comic on the grounds that it infringed their copyright.
Many copyright attorneys would argue that Hallis鈥� work was clearly a satire and therefore would qualify under 鈥渇air use鈥�, an exemption to American copyright law. Still, rather than face a legal battle, Hallis removed the comic from his website. His experience reads like a digital update on one of the oldest forms of censorship in the west: the church squelching its critics.
But it鈥檚 not just the church. Hallis鈥檚 experience is becoming commonplace on the internet as companies and individuals exploit a loophole in copyright law to censor websites without ever going to court. Under section 512 of the Digital Millennium Copyright Act (DMCA), copyright owners can send letters known as 鈥渢akedown notices鈥� to ISPs or web hosts. These notices require the service provider to remove any material the rights holder deems infringing. The European Union Copyright Directive contains similar provisions.
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In practice, this means that online publications are likely to be removed from the public eye before legal proceedings are even initiated. Usually it is up to the person who posted the materials to protest the takedown notice, but unless they are willing to risk expensive legal action, they are likely to do exactly what Hallis did: cave in rather than fight.
All this has become clear thanks to two recent studies that looked at hundreds of takedown notices archived at ChillingEffects.org, a website that compiles and analyses legal notices sent to websites, ISPs and Google. Both concluded that a large number of takedown notices would not have stood up had they gone to court. One study, by law researchers at New York University鈥檚 Brennan Center for Justice, found that 47 per cent of takedown notices sent to ISPs concerned material that had 鈥渁 strong or reasonable fair use or First Amendment defense鈥�, that is, the material was likely exempt from copyright laws. And yet they found that half of this content had been removed from the internet. The DMCA, the researchers say, 鈥渋s a powerful tool for anyone seeking to suppress criticism鈥�.
The authors of the second study, Jennifer Urban of the University of Southern California and Laura Quilter of the University of California, Berkeley, found that 9 per cent of takedown notices included 鈥渟ignificant statutory flaws鈥� that rendered them invalid.
鈥淐ompanies are exploiting a legal loophole to censor websites without ever going to court鈥�
Some of these takedown notices were aimed at commentaries on religion, others at movie and television fan websites. But the vast majority related to commercial sites run by competitors. One of these was MIR Internet Marketing, a web optimisation company. It sent Google 15 takedown notices during 2004 alone demanding that Google remove search results linking to its competitors鈥� websites. MIR claimed the websites were using phrases it had copyrighted. Google complied, replacing the censored links with links to MIR鈥檚 takedown notices on the Chilling Effects website.
What does this mean for the future of online publishing? Urban and Quilter warn that 鈥減ublic discourse and the internet鈥檚 value as an expressive platform鈥� is at risk. Citizens of countries where DMCA-like copyright legislation is being adopted 鈥� and this includes all 25 EU nations 鈥� would do well to take heed. The studies suggest that restrictive online copyright regimes, rather than fostering new kinds of expression, instead lead to further restrictions on political speech and social criticism.
There is cause for hope, though. The Brennan Center researchers found that many people who refuse to remove material are not sued. In addition, protest groups are actively challenging the takedown culture. In 2004, for example, DownhillBattle.org staged an online protest in which more than 100 participants hosted free copies of DJ Danger Mouse鈥檚 The Grey Album, a mash-up of music from rapper Jay-Z鈥檚 The Black Album and the Beatles鈥� The White Album, sharing it with millions online. DJ Danger Mouse had stopped circulating the album after receiving seven 鈥渃ease-and-desist鈥� notices from Capitol Records/EMI, which owns the rights to The White Album. When Downhill Battle received a takedown notice from EMI, it refused to comply.
It is heartening to see activist organisations entering the fray. But we need more than protests; we need laws that protect the rights of creators without giving them the power to deprive everyone else of theirs.
