Copyright As Censorship: Using The DMCA To Take Down Websites For Accurately Calling Out Racist Comments

By Mike MasnikTechDirt

While some still believe that copyright can never be used to censor, we see it happen all the time. Here’s just the latest example. The websites for both the Center for a Stateless Society and the Students for a Stateless Society have been taken down by Bluehost, an ISP with a history of taking down entire sites based on single DMCA claims (i.e.: don’t ever use Bluehost as a hosting company).

Why? Apparently because of a DMCA takedown notice sent by lawyer JD Obenberger on behalf of his client, Olivier Janssens (though, in the DMCA notice, Obenberger refers to him as Oliver, not Olivier).

What “copyright” did these sites violate? Well, it turns out that the sites were somewhat (reasonably) annoyed by comments by some members of Students for a Stateless Society in Belgium, and so they highlighted some comments which they felt were inappropriate, calling attention to the fact that these sorts of comments were inappropriate and at odds with the views and goals of the organization. One of those whose comments were called out was (you guessed it) Olivier Janssens. You can read the comments at the link above, which S4SS argued were Islamophobic, which they felt went against their basic principles, and then the group officially disassociated itself with the chapter to which Janssens and others belonged.

Then came the DMCA notice from Obenberger, which is really quite a thing to read. On my first read, I wondered if it was fake, because not only is it completely over the top, in it, Obenberger more or less admits that the takedown has little to do with copyright, but is to try to hide the (accurately reported) words of Janssens, and makes a statement that I still can’t believe anyone has ever said in seriousness (bolded below):

I am the attorney for Oliver Janssens who is the victim of copyright infringement and a particularly dangerous violation of his right to privacy which affects his personal safety and security. In other words, what follows is not your typical DMCA letter about whose porn is being bootlegged by which pirate.

Your hosting customer, who operates, decided to embarrass Oliver Janssens in the worst and most effective way – by words out of his own mouth. Words of his own creation which, when reduced to the tangible medium of a FaceBook page, acquired a copyright recognized by the United States Copyright Act and international conventions concerning copyright. And because the words he wrote, in what he imagined to be a close discussion among like-minded persons in a FaceBook page, reflected heterodox social and political views about Muslims in Europe, its further publication on your servers presents certain practical dangers to the safety and well-being of Mr. Janssens, who lives and works in that part of Europe in which violence is so routinely applied by Islamic Extremists to those who oppose them, that it seldom makes the news here when its victims are nailed into coffins and buried.

Mr. Janssens participated in a harsh social/political discussion with several other per­sons in a FaceBook group and his comments may be understood as antagonistic to Muslims, at the risk of understatement. I’m sure that, if he could see how they would be published via your servers to the entire world, he’d pull them back. It is too late for regrets. But it is not too late to try to put a tourniquet on this bleeding by stopping the further illegal dissemination of his property.

I am writing this letter in an effort to reduce the chances that Mr. Janssens may become a target for violence and harassment. I am writing to you because, when Mr. Janssens appealed to the operator of the site, your hosting customer, with a request for a takedown of this material, his own private words written among friends, his own intellectual property, your customer operating the site told him to”pound sand” yesterday, on September 19.

He has not authorized anyone to repost his words, yet a user of your web hosting services, S4SS Admin, has posted them on the S4SS website, specifically on the web page indicated below. Further, Oliver Jannsens has not authorized the translation into English of the writings, which your hosting customer also publishes at the same page.

By providing hosting services to that site and its operator, you materially assist the infringement of the exclusive copyright that Mr. Janssens possesses in those words of his authorship, a copyright created under the Berne Convention and American law at the moment he typed them and pressed the Return Button. Should Mr. Janssens become the victim of an assault or murder traceable to this infringement, should he be harassed and ridiculed and run out of his employment or lose his terrified family, committed by a person who targeted him, the embarrassment to Bluehost/Hostmonster would be enormous. And the potential damages, should you disregard this request and demand under the DMCA, and should Mr. Janssens become the target of retaliation inflicted upon him in Europe by a religious zealot who read about him on the website in question, stagger the imagination.

*I would demand, on behalf of my client, that you 1) immediately terminate the hosting of these files, 2) delete their contents from your servers and all other media, 3) advise us of the identity of the uploader, and 4) inform the posters and your hosting client that their illegal conduct jeopardizes not only them, but you as well.

The letter seemed so preposterous that I emailed Obenberger asking for confirmation that he’d actually written and sent it, but as of publishing have received no reply (well over 24 hours since I emailed). Not only is that bolded line such an incredible statement — saying that it’s somehow unfair to actually quote the words someone said — his further explanation appears to be a rather blatant admission that the takedown here was not for anything having to do with copyright at all, but some random, unsupported worry that Janssens’ actual statements might reflect poorly on Janssens. Because they do.

Obenberger, by the way, claims to be a strong First Amendment defender. His website is littered with claims about his strong belief in free speech and the First Amendment, and how he goes to great lengths to protect that right. That’s kind of funny as he’s now taking down an entire site via an incredibly questionable DMCA claim. And there’s a very good chance he knows that his DMCA notice is highly questionable. As the On Alliance blog points out, Obenberger himself has written about filing DMCA notices in which he goes into great detail, including noting that you shouldn’t file a threat of a lawsuit if the copyright holder hasn’t registered the copyright with the US government prior to the alleged infringement. Somehow that seems quite unlikely here, and yet he still sent the takedown.

While it’s entirely possible (though quite a stretch) that Janssens could face the consequences of his words in a manner suggested by Obenberger, that’s the nature of free speech. You are free to say what you want, but it does not make you free from the consequences of your speech. Furthermore, copyright has nothing to do with that. You don’t get to claim that it’s a copyright violation because someone’s words might legitimately be used against them. That’s the point in which the DMCA letter slips into admitting that this has nothing to do with copyright at all, but rather is an attempt to abuse the DMCA process to silence Students for a Stateless Society for calling out Janssens’ statements.

Furthermore, even if there was a copyright issue here, this is about as slam dunk a fair use claim as you could possibly imagine. S4SS quoted a few brief snippets of a Facebook discussion to call certain people out on their statements. The idea that there’s a legitimate copyright claim there is preposterous. At the very least the use was clearly fair use. It was used for commentary and criticism. It was not used for commercial purposes (at all). The nature of the “copyrighted work” (already a stretch) was some bigoted Facebook comments (which were unlikely to be registered prior to the alleged “infringement”). There is no market for the works, so the impact on the market was nil. Instead, it seems clear (and, Obenberger more or less admits this in the DMCA letter itself), the entire purpose was to censor the site that called out the statement of his client.

If anything, it makes you wonder if Obenberger and Janssens may have opened themselves up to a significant DMCA 512(f) issue in arguing that such obviously non-infringing content was infringing.

I asked folks associated with C4SS and S4SS for more details about this as well, and was forwarded Jenssen’s original threat email demanding that the content be removed (before he got Obenberger involved), and it’s equally ridiculous. It claims that “you do not have my permission to repost my opinions” and claims it’s an “official cease and desist letter,” and if they don’t comply he’ll sue. Of course, it’s difficult to see how he has any grounds, whatsoever, to sue. Of course, S4SS has the right to repost his opinions, especially in the manner in which the organization did so.

After C4SS and S4SS published the bogus takedown notice again, Jenssen sent yet another email, though somewhat more conciliatory, saying that it wasn’t his intention to have the entirety of both sites taken down, and that as an “anarchist-libertarian” he’s “not exactly in support of copyright.” Of course, he probably should have thought of that before hiring a lawyer to send a highly questionable DMCA takedown notice that is entirely hinged on copyright law. He does apologize for the takedown, and tries to explain his initial comments which got him into the mess in the first place, claiming that he went too far in his comments, believing (incorrectly) that it was a private group. Again, this isn’t fully convincing, because he did make those comments.

And, of course, you have to wonder how apologetic he is, when after “apologizing” and giving his side of the story, he immediately adds the following:

If you continue this, I will have no other choice than to continue protecting my person by having it removed, and additionally I will also start pressing personal charges to the persons doing so (for endangering my life/family intentionally). I have a practically unlimited budget to do so, but obviously this is not what I want.

Again, I’m curious as to what legal basis there is to press charges against someone for quoting someone else accurately. That would make for an interesting lawsuit as well.

In the meantime, however, we’ve got a bogus DMCA notice that has completely taken down the sites of two organizations, and threats of further lawsuits, even from someone who claims he doesn’t believe in copyright law. But, no, copyright could never possibly be used for censorship.

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