How to Use the DMCA to Squelch Consumer Criticism

The following article is reprinted with permission from the author:

Gregory A. Beck
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009

Hyperlinks that appeared in the original article, e.g. to PowerMark Homes, court documents, copyright laws, or the trade magazine mentioned, etc, can be viewed by visiting the article online.

Wednesday, October 10, 2007

How to Use the DMCA to Squelch Consumer Criticism

by Greg Beck

Public Citizen is currently defending the anonymous operator of the website against a lawsuit by Powermark Homes, an Ohio homebuilding company that is criticized on the site. But although Powermark Homes's motion for an order to shut the site down is still pending in an Ohio court, the company has already succeeded in getting the site taken offline thanks to the Digital Millennium Copyright Act. The case serves as an unfortunately example of how companies can use the DMCA to squelch unwanted consumer criticism on the Internet.

The DMCA is designed to give copyright owners a quick remedy against online counterfeiters. Rather than being forced to go to court and obtain an injunction, a copyright owner can simply send a notice of claimed infringement pursuant to section 512 of the DMCA, 17 U.S.C. sec. 512. An Internet service provider receiving such notice then has to take the allegedly infringing content offline "expeditiously" in order to take advantage of the DMCA's statutory immunity. Because there is no judicial oversight of the DMCA process, however, the law is easily abused by companies seeking to silence critics. By merely asserting that a negative website contains copyrighted material (or other forms of intellectual property that most ISPs cover under their DMCA policies), a complainant can get the site taken off the Internet almost immediately, often within minutes, and without prior notice to the site owner.

That's how Powermark Homes took down The company's lawyer sent a DMCA notice of claimed infringement, claiming that the site's operator infringed the company's copyright by posting on his site an image from Exhibit A of Powermark Homes's own complaint, filed in Ohio court. This is the second such notice the company has filed against the site's operator. Although the company has a pending motion for an injunction in Ohio court, and although Public Citizen has opposed this motion on First Amendment grounds, Powermark Homes didn't need to wait for the judge to rule on the motion to get what it wanted. By just sending an email to John Doe's ISP claiming copyright infringement, the company got the site taken offline almost immediately, no thorny First Amendment questions asked.

Because we do not believe that posting an image included in a publicly filed court document is copyright infringement, and because there is no indication that Powermark even owns a copyright in the image contained in the exhibit (which appears to be taken from the cover of a trade magazine), we sent a counter notice to Doe's ISP contesting the copyright claim. Indeed, Powermark's complaint against the site owner does not even include a claim for copyright infringement. But even though the counter notice was sent on the same day that the site was taken offline, the DMCA provides that the ISP must keep Doe's site down for at least 10-14 days to retain its statutory immunity. So, thanks to the DMCA, Powermark Homes gets the equivalent of a temporary restraining order against a critic without the bother of getting a judge's permission. The losers are the consumers who depend on the Internet to research companies before doing business with them, especially in a major transaction like buying a home.

There is a silver lining, however. Section 512(f) of the DMCA provides damages, including attorneys' fees, for a knowing misrepresentation of copyright infringement.