Revealed: How copyright law is being misused to remove material from the internet

https://www.theguardian.com/technology/2016/may/23/copyright-law-internet-mumsnet?CMP=twt_a-technology_b-gdntech

When Annabelle Narey posted a negative review of a building firm on Mumsnet, the last
thing on her mind was copyright infringement

Annabelle Narey posted a negative review of a building firm toon Mumsnet

after the relationship turned acrimonious Photograph: Bloomberg/Bloomberg
via Getty Images
Writing a bad review online has always run a small risk of opening yourself up
to a defamation claim. But few would expect to be told that they had to delete
their review or face a lawsuit over another part of the law: copyright
infringement.
Yet thats what happened to Annabelle Narey after she posted a negative
review of a building firm on Mumsnet.
Narey, who is the head of programme at an international childrens charity,
had turned to London-based BuildTeam for a side return extension, but
almost six months later, the relationship had turned acrimonious. The build,
which was only supposed to take 1014 weeks, was still unfinished, she wrote.
On Christmas day a ceiling fell down in an upstairs bedroom, she says,
apparently due to an issue with the plumbing. Mercifully no one was hurt.
[That] there seem to be so many glowing reports out there it is frankly curious.
Proceed at your own risk, the review concluded.
BuildTeam disputes her account. In a letter sent to Mumsnet, which the site
passed on to Narey, the builders complained that the comments were
defamatory. They say it is untrue that the ceiling fell down due to an issue
with plumbing, and cited a total of 11 statements they claimed were
defamatory.

Mumsnet, following UK law on libel accusations, passed the letter on to Narey

and offered her the chance to delete the post or get in touch with BuildTeam to
sort out the matter.
BuildTeam have been in touch persistently with us at Mumsnet since midMarch, asking for the thread to be removed, a spokeswoman said. Were
keen to defend our posters freedom of speech and to ask complainants to
follow due process, so previously we had referred them to Section 5 of the
2013 Defamation Act.
By this point, the thread on Mumsnet had grown to include other posters
claiming to have had bad experiences with the building firm. Some of them
decided to remove the posts in response to the legal threats from BuildTeam,
but Narey wanted to keep hers up.
Advertisement
BuildTeam says that at no point has Build Team Holborn Ltd stated that
they are to pursue a defamation claim against any individual. Enquiries were
made to the relevant web hosts as to their position for such posts being made,
thus resulting in the relevant documentation being lodged with the
aforementioned hosts. At present Build Team Holborn Ltd are currently
assessing the situation and/or their options in respect of reserving their rights
should any action be required in the future.
Narey says that after she heard from Mumsnet about the defamation claims,
BuildTeam got in touch personally to ask for the post to be removed. Staff
even came to our house holding printouts of it. They never acknowledged the
contents or made any apology, but distanced themselves from the context of
the review, asking only for it to be taken down, she said.
But in April, the decision was made for her, in a very peculiar way. Mumsnet
received a warning from Google: a takedown request had been made under the
American Digital Millennium Copyright Act (DMCA), alleging that
copyrighted material was posted without a licence on the thread.

As soon as the DMCA takedown request had been filed, Google de-listed the
entire thread. All 126 posts are now not discoverable when a user searches
Google for BuildTeam or any other terms. The search company told
Mumsnet it could make a counterclaim, if it was certain no infringement had
taken place, but since the site couldnt verify that its users werent actually
posting copyrighted material, it would have opened it up to further legal
pressure.
In fact, no copyright infringement had occurred at all. Instead, something
weirder had happened. At some point after Narey posted her comments on
Mumsnet, someone had copied the entire text of one of her posts and pasted
it, verbatim, to a spammy blog titled Home Improvement Tips and Tricks.
The post, headlined Buildteam interior designers was backdated to September 14
2015, three months before Narey had written it, and was signed by a Douglas
Bush of South Bend, Indiana. The website was registered to someone quite
different, though: Muhammed Ashraf, from Faisalabad, Pakistan.
Advertisement
Quite why Douglas Bush or Muhammed Ashraf would be reviewing a builder
based in Clapham is not explained in his post. BuildTeam says it has no idea
why Nareys review was reposted, but that it had nothing to do with it. At no
material times have we any knowledge of why this false DCMA take down was
filed, nor have we contracted any reputation management firms, or any
individual or a group to take such action on our behalf. Finally, and in
conjunction to the above, we have never spoken with a Douglas Bush, or a
Muhammed Ashraf.
Whoever sent the takedown request, Mumsnet was forced to make a choice:
either leave the post up, and accept being delisted; fight the delisting and open
themselves up to the same legal threats made against Google; or delete the
post themselves, and ask the post to be relisted on the search engine.
Although we understood the users argument that something odd had
happened, we werent in a position to explain what - our hope was that by
zapping one post we might ensure that the thread remained listed.

Mumsnet deleted the post, and asked Google to reinstate the thread, but a
month later, they received final word from the search firm: Google has
decided not to take action based on our policies concerning content removal
and reinstatement which (it turned out) meant that they had delisted the
entire thread.

Censorship by copyright
The motivation of Ashraf can only be guessed at, but censorship using the
DMCA is common online. The act allows web hosts a certain amount of
immunity from claims of copyright infringement through what is known as the
safe harbour rules: in essence, a host isnt responsible for hosting infringing
material provided they didnt know about it when it went up, and took it down
as soon as they were told about it.
In practice, however, this means that web hosts (and the term is broadly
interpreted, meaning sites like YouTube, Twitter and Google count) are forced
to develop a hair-trigger over claims of copyright infringement, assuming guilt
and asking the accused to prove their innocence.
As such, a very easy way to remove something from the internet is to accuse its
creator of infringing copyright. Worse, the potential downside of such a false
claim is minimal: the accused would have to first file a counterclaim, proving
they own the copyright; then file a private lawsuit, and prove material damage;
and then track down the offending party to actually recover any monies
granted by the court.
That doesnt happen all that often.
But in recent years, big web companies have started funding lawsuits
themselves, to fill the gap in the law and tilt the scales a bit further in favour of
content creators wrongly accused.
Oliver Hotham is one beneficiary of that change. In 2013, the journalist posted
an interview with Straight Pride UK, a homophobic group that expressed
support for anti-gay polices in Russia. Seemingly embarrassed by their own
statements, Straight Pride UK then filed a takedown request with Hothams

blog host, Wordpress.com, claiming that they owned the copyright to the
answers they gave Hotham, and they had not intended the text to be
published. 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, the groups spokesman, who went by the name Peter
Sidorove, told the Guardian at the time.
Automattic, the parent company of Wordpress.com, called the takedown
request censorship using the DMCA, and vowed to fight it. Eventually, Hotham
and Automattic were victorious, with a Californian judge granting over $20,000
in damages, but it was a hollow victory: Sidorove and Straight Pride UK had
disappeared off the face of the earth, leaving little chance of the money being
paid out.
Advertisement
In November, YouTube announced a similar plan, to offer legal support to a
handful of videos that we believe represent clear fair uses which have been
subject to DMCA takedowns.
Were doing this because we recognise that creators can be intimidated by the
DMCAs counter notification process, and the potential for litigation that
comes with it, Fred von Lohmann, Googles copyright legal director, wrote.
But the company cant offer legal support for every video on YouTube, nor
even every video with an obvious case. And when it comes to takedown
requests for Google Search, the numbers are staggering: the company received
88m copyright takedowns in the last month. Despite that, a Google
spokesperson said that we use a variety of techniques to try to identify
[fraudulent] claims, and when we do identify possible fraud, we push back
very strongly against the claim. Indeed, we do this for millions of URLs every
year.
Google is aware of cases like Nareys, and is looking at how to improve fraud
detection, but theres a limit to what it can do in general. The scale is too large
for it to take the sort of personal approach that Automattic did with Hothams
case, and ultimately the law doesnt allow for it to hit back against fraudulent

claims without some involvement of the accused which, technically, was

Mumsnet, not Narey. And while Mumsnet was offered the chance to file a
counterclaim, the forum couldnt, because it too couldnt be certain the claim
actually was fraudulent.
For Narey, its a bit late. For the law governing the internet to allow decisions
regarding my integrity to be taken without any investigation at all seems
shocking, she says. I have no ambition other than to bring our experience to
public attention.