After a two-year legal battle, journalist Oliver Hotham and Automattic, owners of blogging service WordPress.com, have emerged victorious against an attempt to use an American copyright law to shut down criticism of a short-lived pressure group call “Straight Pride UK”.
The win, in a Californian district court, sets a rare precedent against attempts to use the Digital Millennium Copyright Act (DMCA) to take content offline.
The act includes a provision that requires web hosts to remove user-generated content if they are notified that it infringes a third-party’s copyright – or face being held liable for the infringement.
But these DMCA takedown notifications are often abused to force big platform holders to remove content for reasons unrelated to copyright, as Hotham learned in 2013, when he was a student journalist.
In August that year, he posted an interview on his WordPress blog with Nick Steiner, press officer for an anti-gay group called “Straight Pride UK”. In the interview, Steiner expressed his group’s support for homophobic policies enacted in Russia and a number of African nations, and praised Putin’s crackdown on LGBT rights.
But shortly after Hotham published the interview, he received a message from Straight Pride UK warning him to take down the piece within the week, or the group would use a DMCA takedown to force him to do so.
While both Hotham and Straight Pride UK were based in Britain, Hotham’s American hosts were subject to the law. However, a DMCA takedown notice requires copyright to have been infringed – something that had not happened because Hotham had merely published an interview.
Peter Sidorove, the head of Straight Pride UK’s Moscow-based sister organisation Straight Forward, told the Guardian in August that the interview, sent over in a document titled “Press Release”, was never intended to be published.
‘Censorship using the DMCA’
“Straight Pride UK thought as he was a student that we would add fun to it, dress it up and make him feel like a reporter by adding ‘press release’ to the document. This document also had a notice saying that it was not to be reproduced without consent,” Sidorove said.
But after the group served Automattic with a DCMA notice in an effort to force the company to take down Hotham’s blogpost, Automattic vowed to fight the takedown, calling the notice “censorship using the DMCA”.
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In November 2013, it sued Straight Pride UK saying that “while there are no legal consequences (like fines) under the DMCA for copyright abusers, there is a provision that allows victims of censorship (and their web hosts) to bring legal action against those who submit fraudulent DMCA notices”.
Following Automattic’s legal victory against the group, activists hope that more web hosts will be emboldened to fight back against malicious takedown notices. Parker Higgins, of the Electronic Frontier Foundation, said: “WordPress going to bat was really unusual, and this could encourage others.”
The firm was awarded $22,264 in legal fees and $1,860 for time spent working on the case, which should also go some way to encouraging others to fight similar cases, Higgins added.
But neither Automattic nor Hotham, who was awarded $960 for his work and time, have much hope of being paid the money. Since August 2013, Straight Pride UK seems to have disappeared from the face of the Earth. The group’s website has been taken down, and messages to an email address that was its only point of contact are not being answered.
‘Sets the precedent’
Automattic said: “We tried to track down Nick Steiner, but didn’t succeed. We’re disappointed by that and by the fact that he’ll probably never pay the judgment. So DMCA abuse may go unpunished this time. But we’re hearted that our case makes some good new law for future cases. There’s very little case law in this area, and previously no case law about what damages were available if a plaintiff were to win. It’s important here that the court held that we could recover attorneys’ fees and costs of suit, which were by far the biggest piece of damages.”
“This case also sets the precedent that Automattic will stand up for our users, and fight back against DMCA abuse. Hopefully that, along with the rule that victims can collect damages (especially costly attorney’s fees) may cause future DMCA abusers to think twice before they pull the same stunt.”
Hotham said the outcome was “really pleasant”. “It’s great to have made the impact now. I realised we were going to win when I heard that Automattic had hired this big California law firm, and when it was clear that the law was overwhelming on our side, of course. It’s been something I’ve put the back of my mind, so it was great to see it happen this week”.
As for Steiner, Hotham says: “As far as I know I’m not sure he even exists, or even that ‘Straight Pride UK’ was ever anything more than a few bloggers. I doubt I’ll hear from them now.”