Striking A Balance Between Intellectual Property Rights and Free Speech

August 14, 2014
Illustration: Sturt Krygsman Source: The Australian

Illustration: Sturt Krygsman Source: The Australian

With new social media and file sharing websites popping up almost every day, there is an ever-increasing concern with copyright and trademark infringement. The Digital Millennium Copyright Act was introduced in order to help make it easier for these new websites and intellectual property holders to tackle infringement issues. Unfortunately, it seems that more and more IP holders are abusing this system by using it to censor and abolish criticism on the web instead of using it to protect their art. Freedom of speech and intellectual property rights are both vital to our culture, but the balancing of the two is being disrupted by individuals with ill intentions.

Before we proceed, open up another window of your web browser and go to YouTube, Tumblr, or whatever social media sharing site you’re currently hooked on. Now, type in your favorite song by your favorite band. If I were a gambling man, I would bet that you found exactly what you were looking for. I would also bet that there are copies posted by someone other than the band or their record label. This means you’ve probably found an example of copyright infringement. But who’s in trouble here? Is it the person who uploaded the video? Is it the website that allowed it to be uploaded? Is it your internet service provider (ISP)? Too many questions! This is exactly why the Digital Millennium Copyright Act (DMCA) was introduced into US federal law.

To make a long story short, DMCA allows copyright holders a quick and easy fix for tackling these infringement issues. Requiring sites, like YouTube, to individually monitor each and every file that is being uploaded is far too burdensome. Under DMCA, copyright holders can send a takedown notice to websites that are hosting infringing files. Such notices basically inform the website of specific files that are infringing someone’s copyright. As long as the site removes the file, they’re off the hook.

This seems great, right? Not so fast. There is an illusion that DMCA may have struck a perfect balance between free speech and copyright protection. The copyright holder’s rights are protected, requiring little work on their part, and websites don’t worry about having to be sued as secondary copyright infringers as long as they comply with the takedown notices. Unfortunately, this powerful tool granted by DMCA is being abused by people wishing to suppress the freedom of legitimate, non-infringing speech.

(c) DMCA

(c) DMCA

Some IP owners are using DMCA takedown notices as a way to suppress bad reviews or criticism that is posted online. Typically, reviews contain snippets from the work that they are critiquing, whether it is in the form of a short movie clip, screenshot, cover, and so forth. While posting such things would normally be considered copyright infringement, the copyright laws allow incorporation and referential use of the original works as “fair use” exceptions. Despite fair use, some IP owners are filing DMCA claims anyway to rid the web of bad press on their works.

DMCA takedown notices are extremely powerful, and they grant a unilateral right to have content removed from the web under the presumption that the content is indeed infringing on someone else’s copyright. Very little evidence is necessary to accompany DMCA takedown notices. While the party who posted the content is allowed to send a counter-notice claiming that their use is non-infringing, this usually occurs after the content has been removed from the web. It seems quite clear that although this system works when it is used in good faith, there are glaring problems that can be exploited if an IP owner wishes to abuse this power to censor critical reviews or parody of their work.

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Eric Margolis is a 2014  St. John’s Law School graduate. You can contact him at!

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