Oliver Hotham, whose blog was taken down after a DMCA notice was served, has been awarded $1,000 in damages. Russian gay rights activists march in a during May Day rally in St Petersburg.
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 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”.
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, he 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.”
