Yesterday, we wrote about the importance of fair use as a safeguard for free expression. But all too often, fair use and other legal limits on copyright are not enough to stop copyright enforcement from serving as cover for silencing critics.
Time and again, we see copyright claims getting textbook fair uses erased from the internet, taking particular advantage of the Digital Millenium Copyright’s (DMCA) takedown regime. One culprit, the ironically named No Evil Foods, went after journalists and podcasters who reported on accusations of union-busting, claiming copyright in a union organizer’s recordings of anti-union presentations by management.
Whether the presentations were even copyrightable was doubtful. And even if they were copyrightable, using such material to verify and strengthen news reporting is a textbook example of fair use. The public not only has an interest in this information; being able to hear the sources also helps us determine for ourselves how accurate the reporting is. By trying to silence critics using copyright, No Evil Foods was setting itself up for a lawsuit for its bad-faith use of the takedown system. So we sent a letter telling them to knock it off, explaining all of this in clear terms. The takedowns stopped after that.
In other cases, we see copyright claims invented out of thin air—the takedown target didn’t even use any copyrighted material from the claimant. In 2020, Nebraska’s Doane University used a DMCA notice to take down a faculty-built website created to protest deep academic program cuts, claiming copyright in a photo of the university. One problem: that photo was actually taken by an opponent of the cuts, specifically for the website. The professor who made the website submitted a counternotice, but the university’s board was scheduled to vote on the cuts before the the legally required waiting period would expire. EFF stepped in and demanded that Doane withdraw its claim, and it worked—the website was back up before the board vote.
A few months earlier, we saw a This article has been indexed from Deeplinks
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