This was co-written by Alejandro Menjivar, Legal Intern at Access Now.
Repressive regimes — from Nicaragua to Tanzania to Ecuador and beyond — are adding to their toolbox of strategies for censorship of critical voices and independent journalism online. Access Now’s Digital Security Helpline, which provides direct technical assistance to civil society across the globe, is seeing increased use of spurious copyright claims under the U.S. Digital Millennium Copyright Act, or DMCA, in attempts to silence journalists, activists, and civil society organizations that report on human rights violations. In some cases, it is clear these abusive DMCA takedown demands are part of broader campaigns to influence public discourse or tip the outcome of elections.
As we have previously outlined, the Helpline is getting more requests that are related to censorship of content on social media, and DMCA takedowns are part of that trend. To date we have helped to resolve dozens of DMCA takedown cases, the majority involving censorship on YouTube and Facebook. Most came from countries in Southeast Asia and Eastern Europe. The Committee to Protect Journalists has also documented this trend in Ecuador, Nigeria, and most recently in Nicaragua. Notably, ahead of Tanzania’s upcoming elections, our Helpline has received reports of hundreds of DMCA takedown demands to censor Tanzanian activists on Twitter.
Below, we provide an overview of how copyright law works, explain how bad actors are misusing the DMCA — including a case study in Nicaragua — and offer recommendations to help platforms better protect the civil society targets of these copyright claims. We also offer resources that our Helpline recommends to help individuals and organizations understand DMCA takedown orders and respond appropriately to keep their content online.
Please note: the information we provide in this blog post is for general information purposes only and does not, and is not intended to, constitute legal advice.
Copyright law in a nutshell
Copyright laws vary by country, but they share the common purpose of providing an incentive to create by protecting original works of authorship. The exceptions and limitations to copyright laws define how a person can freely use a copyrighted work for specific purposes, such as for journalism. These exceptions are essential to the exercise of the right to freedom of expression. In some jurisdictions, including the Commonwealth of Nations and the European Union, they are clearly defined. But in the United States and a handful of other nations, the situation is less clear, as courts determine what is allowed under the fair use doctrine.
In brief, “fair use” is what lets you use copyrighted content in new works for purposes such as criticism, commentary, parody, news reporting, teaching, scholarship, or research — without asking for permission first. An example might be referencing a government report in a news article, or quoting a government official in order to criticize them. If your use is challenged by a copyright holder, courts in the U.S. use the four factor test listed in the Copyright Act to determine whether the use is fair.
How platforms apply copyright law
Some of the world’s most popular social media platforms, such as Facebook, Twitter, or YouTube, are based in the U.S. and must comply with the DMCA. The DMCA law gives platforms like YouTube protection from copyright liability if they meet certain requirements. That includes setting up a system for “notice-and-takedown” of copyrighted content.
There is so much content uploaded to social media platforms that they use a number of methods to identify copyrighted material, including reports by users and internal tools like algorithms. If you get DMCA takedown demand and you want to challenge it, you can respond with what is called a counter notification. Once you do that, the rightsholder can choose to do nothing, and your content will be restored after 10-14 days. But the rightsholder can also sue you to keep it down.
How bad actors are exploiting the DMCA to silence civil society
The DMCA exists to protect authors’ rights in the digital space, but governments are leveraging it to harass members of civil society and disrupt their work. Due to the way the law works, copyright claims are not only leading to censorship but also raising serious security concerns for these individuals and organizations.
The problem has to do with the counter-notification process. In order to challenge a spurious copyright claim on YouTube, for instance, you must submit a counter-notification that provides your personally identifiable information. If you don’t give up your anonymity, you don’t get to exercise the right to challenge the takedown of your content. In addition, under the DMCA, copyright holders can subpoena YouTube in order to identify you. If you depend on anonymity to speak freely online, you risk exposure when you upload content because governments or bad actors can claim that any content is infringing, even if it’s not. If you do choose to submit a counter notification, that kicks off a legal process that can become yet another hurdle to speaking out. Many independent activists, journalists, bloggers, and other members of civil society that are targeted for abuse have neither the necessary legal background nor access to affordable legal assistance to fend off a lawsuit.
When a repressive government falsely claims that a member of civil society activity is infringing copyright, it is an abuse of the law and has profound detrimental effects. It is clear that the legal framework and current corporate practices do not sufficiently address situations where bad actors improperly file takedown requests to censor people and strip them of their privacy and anonymity. Even if your content is rightfully restored after a takedown, the harm has already been done. You can miss key, time-sensitive opportunities to spread an important message, and can lose followers and momentum. In some cases, an organization that challenges a takedown can lose access to the content they posted — permanently. When your organization exists solely online, the risk from copyright claims is heightened. A closed account means that you lose your identity and your work. And when platforms take down content that is critical of governments and disable the accounts of the people who posted it, it signals to others that using government materials — which often are not covered by copyright — carries significant risk.
Case study: Nicaragua
Media outlets in Nicaragua reached out to Access Now’s Digital Security Helpline when they received copyright takedown demands for publishing content on YouTube, “Informativos de Televisión y Radio S.A. Canal 4 Nicaragua,” from a local TV channel allied with the government. The content in question included speeches by Nicaragua President Daniel Ortega, who was addressing the public and discussing current events. According to Nicaragua’s national copyright law and executive orders, this kind of material can be reproduced, distributed, and publicly communicated without the author’s permission because it falls under the public interest exception. YouTube subsequently restored the removed videos, as the complainant did not follow up with a lawsuit and the time to respond to the counter-notification expired.
After speaking with local partners and the media organizations impacted by the copyright claims, we concluded that the takedown notices were part of a repression strategy leveraged by the Ortega regime to maintain power. The case fits the pattern of the regime leveraging the media, which is owned by Ortega’s family and other state entities, to censor independent media and obstruct reporting on human rights violations.
How should platforms respond?
We’re pleased to see YouTube restore videos that are wrongfully removed, like the ones in Nicaragua. But there are many individuals and organizations whose content has been taken down still waiting for a response. We are encouraging all platforms to examine ways they can make defending civil society against spurious DMCA takedown demands a priority. Human rights are at stake.
Since individual takedowns have a cumulative effect, abuse of copyright can silence pivotal voices and communities, impacting free expression. Removing content or banning users can have significant ramifications for a spectrum of rights, including the right to freedom of expression. Under the international human rights framework, companies have a duty to respect human rights in their policies and terms of service. This includes an obligation to provide access to remedy. Under the U.N. Guiding Principles on Business and Human Rights, companies must go beyond legal inquiries to participate in non-judicial mechanisms that serve communities when human rights may have been infringed.
We ask that companies consider solutions to improper copyright demands that are based on international human rights principles of transparency, proportionality, and remedy, in order to protect the people whose rights are being harmed. For example, as they develop processes to respond to copyright claims, they should build in ways to enable consideration of context, prevent human rights harm, and evaluate human rights impact. They should identify ways to flag bad actors who repeatedly abuse the notice-and-takedown mechanism, and apply extra scrutiny to their requests. Additionally, in cases where human rights activists are concerned, they should work to ensure there is a human in the loop of the process.
What you can do if you get a DMCA takedown order
If you get a DMCA takedown notice, you should proceed carefully. You should consider whether the copyright claim is legitimate, and whether you have a right to use that material because you have permission from the author, or your use of the material qualifies under the exceptions defined in your national copyright law. It is wise to contact a legal representative who can help you understand the specifics of your situation and the options that are available to you, because responding to a DMCA takedown notice with a counter-notification can have serious legal consequences, especially if the rightsholder decides to sue.
If you or your organization are working to defend human rights and you receive a spurious copyright claim, you can also contact the Access Now Digital Security Helpline to ask questions or get general guidance on these issues.
Here are additional resources to help you figure out what to do if you get a DMCA takedown demand:
Where we go from here
It’s clear we need to make changes if we want to stop bad actors from abusing copyright law to strip anonymity and silence critical voices online. We hope to see social media platforms innovate in this area, developing extra measures to review DMCA claims that look more like harassment of civil society than legitimate enforcement of copyright laws — especially when those claims are coming from government officials, government agencies, or other government-affiliated actors. We also see a need to further educate civil society, in particular independent media organizations around the world, about copyright law and how to protect themselves, whether by avoiding infringing copyright or by warding off spurious copyright claims. We hope to be part of the solution.
Reminder: The information provided in this blog post is for general information purposes only and does not, and is not intended to, constitute legal advice.