Sunday, February 16, 2014

Unfair Use: How Copyright Violation Claims are Used to Suppress Intelligent Debate

by Nomad

Online hosting sites like YouTube and others routinely chose to ignore the fair use provisions of of the copyright laws at the cost of online free speech.
When does one man's education and debunking through science become another man's propaganda?

Deconstructing the House of Numbers
The website TechDirt has an interesting article that caught my eye. Here's the story.
When a 2009 documentary called House of Numbers made the claim that HIV and the AIDS epidemic was part of a conspiracy theory, it - not unexpectedly- became the center of some fierce controversy. Supporters of the film said it provided "a number of challenging and disturbing thoughts" but the New York Times described the documentary as "a weaselly support pamphlet for AIDS denialists." The Portland Oregonian criticized its makers for "not being entirely honest with viewers," and the Wall Street Journal just wrote the whole film off with the words: "this season's fashion in conspiracy theories."

Conspiracy theories come in all varieties, from the absolutely nutty to the quite plausible. Some are based on opinion, some on facts and some on misrepresentations and lies. 

In fact this theory has been floating around for quite a long time but unfortunately, to some of the less discerning minds, it could sound plausible. So, even if the film's premise was 99 % irrefutable, the message of the film would still be more than a little irresponsible based only on that 1% of doubt. After all, believing in this particular conspiracy theory could have some serious consequences.

And the nature of the Internet makes things still worse. Once this kind of material gets online it can take on a life of its own. Such ideas can spread quickly on the Internet, and after being completely destroyed, it may re-surface over and over, "reinfecting" new victims.  

In this age of nearly unlimited speech, it is something most of us have reluctantly had to put up with. After all, the possible harm can only be mitigated by more free speech and science, right? 

It was for that reason, famous scientific debunker Myles Powers decided to put out a series of videos showing both why the claims in House of Numbers are rubbish and how the producers of the film had manipulated the evidence. Naturally in order to properly debunk the material in the film, he used excerpts of it. And why not? What other way can it be done?
However, producers (or those featured in the film) quickly filed claims of copyright violation against Powers and his videos. As soon as it received the copyright violation claims, YouTube immediately took down the debunking videos.

Fair Use and Propaganda
In special circumstances, something called the fair use provision of the US copyright laws allows for the limited use of copyrighted material. It was recognized early on that absolute adherence to copyright laws would endanger free speech. That's why the under fair use, makers of commentaries, parodies, news reporting, research, teaching, scholarship and criticism are free to use copyrighted material. In these limited situations, therefore it is not an infringement of copyright.

According to the claim filed against Powers, however, the debunking videos were not criticism or teaching or anything covered by the fair use exclusion. The videos, they said, were propaganda.

Despite the fair use exclusion, this sensible provision, in the past decade,  is routinely ignored when The Digital Millennium Copyright Act (DMCA) claims are filed.
Free speech often depends on incorporating or referencing other people's work as part of your own, notes Electronic Frontier Foundation (EFF), an international non-profit digital rights group based in the United States. That's why courts recognize "fair use" and the strong legal precedents have consistently supported this exclusion.
Unfortunately, copyright owners often object to these uses and may look for ways to take them offline via the legal system. A copyright cease-and-desist letter to your webhost or ISP may be all it takes to make your online speech disappear from the Internet — even when the legal claims are transparently bogus.
In every case, hosting sites like Blogspot and Youtube and many others do not bother to investigate the validity of the claims at all. Nothing has to be proved for action to be taken. And there is generally very little recourse without pursuing costly legal action. This is true, even though the law clearly protects the target of  specious claims.
It's also important to note the extent at how the copyright laws are being misapplied. Without even considering the fair use exception, a claim can be based on something as minor as music used in the background of referenced clips.  

Intimidation and Lack of Due Process
If the law clearly provides for "fair use" on these special occasions- then why wouldn't these hosting sites obey the law?
First of all, there's the sheer volume of material. The more copyright violation claims that are filed, the harder it is to review each and every one. Hundreds of claims can be filed in a single day. Therefore, it is simply easier for the hosting site to remove the questionable content. Their right to do so at their discretion is actually written into your terms of the agreement. You can challenge the claim but it would probably require a lawyer versed in copyright law. 
Secondly, legal firms who have made their fortunes from filing copyright claims can also be intimidating, as EFF notes:
Service providers fearful of monetary damages and legal hassles often comply with these requests without double-checking them despite the cost to free speech and individual rights.
There's another less well-known aspect of the abuse of copyright laws. In order to challenge any claim, copyright holders have the right to expose the target of the claim. If you wish to challenge the copyright violation claim, you give up the right to anonymous free speech.  
Again, no prove of a copy right violation is necessary. One only needs to file a legal sounding claim.

Here we have an incontestable example of ongoing and widespread censorship and nothing is being done to defend free speech. It is just one of the many ways online censorship is conducted but it is one of the most insidious and unjust. As TechDirt points out, the censorship of Myles Powers videos is particularly egregious since the video the series attempts to debunk is, in fact, a potential danger to the public.
Anyone with a modicum of interest in science and the dialectic method would welcome such a conversation, not attempt to stifle it under the guise of copyright law.
What better justification for the fair use provision can there possibly be?

If those who make false claims accountable when they misuse the fair use, EFF states, the problem of silencing online free speech is likely to get much worse.