Imagine this a little Typical scenario: Before breakfast, you use WordPress to write your morning blog post, which includes a screenshot of a movie you watched last night, along with your thoughts about the movie. During your workday, a colleague shows you a viral YouTube parody of a popular music video (found through a Google search). On his lunch break, he buys a new book on Amazon, which he buys after reading some reader reviews that include short quotes from the book. After work, you take photos of your Brooklyn loft filled with Obey art posters and post them on Airbnb, hoping to rent it out during the week you visit family. At night, you catch up on an episode of Downton Abbey that you recorded on your DVR earlier in the week.
Whether you know it or not, each of these activities is made possible by the legal term “fair use.” It is an indispensable part of our lives, enabling many of the websites and services we use daily or depend on for our livelihood. Fair use also happens to be an exception to the content owner’s rights under copyright law.
By allowing limited use of copyrighted material for things like critiques, reviews, comments, parodies, or simply for personal, non-commercial use, fair use has a widespread and often invisible impact on today’s social Internet. However, its ubiquity means that the individuals and Internet companies that benefit from it often take it for granted.
This is concerning because fair use is under threat and one of the culprits is the DMCA takedown notice which provides copyright owners with a simple tool to remove content they claim to have been posted illegally. Copyright owners send these notices to web companies that host content; Companies must then remove the content or risk legal liability. Designed to promote the rapid removal of unacceptable copyright infringements, the DMCA system works well in many cases.
Unfortunately, an increasing number of copyright holders misuse this system to target even fair and legitimate use of their work. And the current DMCA system allows these aggressive copyright owners to offer virtually no penalties for failing to consider common exceptions to infringement, such as fair use.
Many times a week, WordPress.com receives DMCA takedown notices targeting what we can clearly see as fair use. A very common example is an ad to a blogger who criticizes a company or its products and therefore uses screenshots of the company’s website or a photograph of the company’s products in their post. This is not just an outlier; Given our unique point of view, we see an alarming number of companies attempting to use the DMCA takedown process to remove criticism of their company from the Internet.
#### Paul Sieminski
##### About
Paul Sieminski is general counsel at Automattic Inc., which operates the popular publishing platform WordPress.com. Prior to joining Automattic, he was a corporate attorney at the Silicon Valley law firm Gunderson Dettmer. In his role overseeing Automattic’s global legal affairs, including its copyright and DMCA policy, Sieminski has seen his fair share of false DMCA complaints.
What can someone who receives a fair use takedown do? One option is to challenge the removal of content by filing a “counter-notice” with the Internet company that removed the post. Making this presentation is a fairly easy thing to do, but few users do it.
In fact, Twitter reported In its most recent transparency report it saw a 76% year-over-year increase in DMCA takedown demands: more than 5,500 takedown notices were received over a six-month period. But at the same time, Twitter received only six counter-notifications questioning the removal of content. One reason this number may be so low is that, in the process of filing a counter-notification, users must reveal their personal identity and agree to be sued in federal court.