Time to take notice

Will new laws to protect copyright make life easier for the censors?

According to a report commissioned by the government of the time, between 1966 and 1970 Scientology organisations initiated 29 libel actions in the English courts. Since then, Ron Hubbard's acolytes have gained a reputation for their appetite for legal sanction. And, in the digital age, policymakers have made it easier for them to have their fill.

Today, it is not defamation, but copyright law that is the censor's friend. At the beginning of this month, an organisation called American Rights Counsel llc sent out 4,000 takedown notices to YouTube, all making copyright infringement claims against videos critical of the Church of Scientology. Some of these videos were filmed by the people who posted them on YouTube, and others were clips from international news channels, making ARC's claims that all the videos infringed the copyright of its client appear highly dubious. Nonetheless, overnight, YouTube removed all the videos in question.

YouTube was acting in compliance with the Digital Millennium Copyright Act (DMCA), a US law designed to protect copyrighted works on the internet, and the intermediaries - such as YouTube - which may unwittingly host them. As a host, YouTube was obliged to remove the material, or assume liability for the infringement itself. So, without recourse to the courts, the company censored the content at the behest of ARC. But the story does not end there.

Unlike the UK, which has liability arrangements similar to the DMCA, takedown procedures in the US contain a specific remedy for those whose content has been removed from the net unfairly - the DMCA counternotice. This is in effect a letter saying, "So, sue me," which provides the issuer of the original notice with details such as name, address and telephone number, as well as an undertaking that the material removed does not infringe copyright. The day after the wave of YouTube takedowns, many of those whose videos had been removed issued counternotices to YouTube and had their videos reinstated on the site.

But question marks remain over who American Rights Counsel actually is. Anti-Scientology activists report that searches for any such limited liability company registered in the US bring up no results.

The penalties for issuing bogus DMCA takedown notices are steep; yet it is unclear who might be motivated to do so on such a large scale. Whoever the person or organisation is, it now has the personal details of several vocal critics of Scientology. The DMCA was established before peer-to-peer file-sharing became as popular as it is today. Now governments are once again sitting down with rightsholders to devise new laws to protect copyrighted content. The question is: will these laws unintentionally make it even easier for the censors?

Becky Hogge is a writer and technologist. She was formerly the technology director of award-winning current affairs website openDemocracy.net, and Executive Director of the Open Rights Group, a grassroots digital civil liberties organisation.

This article first appeared in the 22 September 2008 issue of the New Statesman, The battle for Labour: How to save the party