Around halfway through last year, Casey Luskin of the Discovery Institute, a noted conservative think tank with a bent for advocating the teaching of “creationist anti-evolution beliefs” went on a Fox News program to discuss the so-called “white hot” debate between creationism and evolution. His prerogative was that Biology textbooks teaching evolution were getting the science plain wrong. The piece that aired on television featured no debate, simply Mr. Luskin’s exceptionally misinformed side of the story. Appalled by this, YouTube user “DonExodus2” posted the video to YouTube, edited to contain a firm rebuttal to most every point that Mr. Luskin made on the original broadcast. That video is posted below.
In June 2009, one month after DonExodus2’s video hit the internet, the Discovery Institute filed a DMCA takedown notice (PDF) with YouTube claiming that the video violated US copyright law. In the brief, a Discovery Institute lawyer claims that a picture appearing in the video of the Institute’s logo along with the words “invisible research” is a violation of copyright law because the Discovery Institute did not give DonExodus2 permission to use said logo. In response to this, DonExodus2 posted another video to YouTube, this time about takedown notice itself.
The counter-argument against the Discovery Institute’s takedown notice is that the use of their logo falls within the bounds of fair use. Under US copyright law, the first of the four principles used for determining fair use is whether or not “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose.” Additionally, News Corp, the parent company of Fox News, is the rightsholder to the broadcast, which invalidates any claim that the Discovery Institute thinks it has over the legal status of this video. In short, the takedown notice itself was completely bogus.
The most important thing about this story is that it highlights a massive problem that pops up time and time again in the American legal system: people with more money and resources have the capabilities to essentially enforce censorship as they see fit. In this case, as DonExodus2 points out in the second YouTube video, the Discovery Institute filed a DMCA takedown, illegally at that, because in most cases it’s the easiest course of action (especially considering that the Discovery Institute’s other option would be to somehow alter the facts presented in the original rebuttal video). The group was hoping that DonExodus2 would be too scared to take them to court over their wrongful use of the law. Fortunately for supporters of free and open speech, they were wrong.
I wouldn’t bother writing this piece if what the Discovery Institute did were uncommon, but guess what? It’s not. One case bearing remarkable similarity to this one occurred back in September of 2008, when the Church of Scientology used a cover outfit to file 4000 DMCA takedown notices with YouTube over videos criticizing the beliefs and practices of the organization. And this past December, Yahoo filed a similarly misinformed DMCA takedown notice when a third-party site started hosting the company’s “compliance guide for law enforcement” (AKA its policy for turning user information over to the feds), which is quite simply appalling. Yahoo apparently makes it a policy to turn over such data as “any email available in the user’s mail account, including IP address of computer used to send email,” and all of this is done without a fight on the user’s behalf. And this takedown notice was filed despite a 2003 case involving a ruling involving Diebold’s trying to censor the spread of information about flaws in its e-voting machines. Essentially, Yahoo was hoping that the site hosting the file would lack knowledge of legal precedent and very quickly take down the file.
To think that the DMCA is the only tool that big organizations use wrongfully against less-wealthy opponents is a fallacy. The Church of Scientology has an entire Wikipedia article dedicated to its use of lawsuits to censor critics. To quote a US District Court memorandum, Scientologists
have abused the federal court system by using it, inter alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter. This constitutes ‘extraordinary, malicious, wanton, and oppressive conduct.’ … It is abundantly clear that plaintiffs sought to harass the individual defendants and destroy the church defendants through massive over-litigation and other highly questionable litigation tactics. The Special Master has never seen a more glaring example of bad faith litigation than this.
The RIAA is also a perpetrator of this sort of bullying. The settlement offers the RIAA sends to its targets are “the modern equivalent of the midnight raid:” essentially, the RIAA says that in lieu of their suing someone for fifty billion dollars, the organization will just take a check for $5,000 and walk away. The RIAA’s allegations in this case do not even have to be based upon evidence that would hold up in trial. Most of the Joe Shmoes who get an envelope with this ultimatum in the mail are going to take it because, after all, that $5,000 is probably less than it would cost to hire a proper attorney. And if Joe Shmoe goes to trial and is unfortunate enough to lose, he could be looking a penalty of up to $150,000 per song, which would be far, far worse (though the constitutionality of such nonsensical damages is being challenged).
At the end of the day, groups which hide behind the legal system in such a way are almost always opportunistic cowards. Sadly, rather than engaging in meaningful discussion, the coward would rather hide behind confusing legalize and a fistful of dollars, and the DMCA allows him to do this; hell, the way lawsuits work in most of the Western world allow for this kind of thing. But if you are wrongfully accused or are targeted by what is clearly an abuse of the legal system, I urge you to not take it sitting down. Consult a lawyer and fight it out. The more people who fight back against the bullshit, the more the actions of groups like the Discovery Institute get forced into the light.
I feel like its especially devious to use tactics like the ones you describe surrounding such controversial issues as the creationist lobby (though it makes sense that people would). There's already so much of a firestorm around the issue, a LEGAL document, or even just a legal-LOOKING document, saying that you'll be sued if you don't take down your material or recant or something is extra intimidating. I guess it's really terrifying to think that you might actually, honestly be liable for what would amount to hundreds of thousands of dollars in legal fees and fines, but it's really true: the only way to make this better is to stand up to stuff like that (provided, of course, that content does NOT legally infringe on an organization).