Automattic Inc. & Hotham v. Steiner
Automattic Inc. & Retraction Watch, LLC v. Chatwal
By Travis West – Edited by Natalie Kim
Complaint, Automattic Inc. & Oliver Hotham v. Nick Steiner (N.D. Cal. filed Nov. 21, 2013)
Complaint, Automattic Inc. & Retraction Watch, LLC v. Narendra Chatwal (N.D. Cal. filed Nov. 21, 2013)
Hotham Complaint, Retraction Watch Complaint hosted by Automattic
Automattic, the owner of WordPress.com and a major developer of the WordPress software, has sued two parties for using the notice-and-takedown provision of the Digital Millennium Copyright Act (“DMCA”) to stifle criticism. Automattic alleges that the two parties abused the provision and are seeking damages under 17 U.S.C. § 512(f) for misrepresentation. Automattic is one of the largest blog hosting companies, and its decision to go after parties that use fraudulent copyright takedown notices could mark a shift in how content hosts handle DMCA takedown requests.
Automattic explains why it chose to sue over these two incidents. Ars Technica provides additional coverage of the lawsuit, including some problems Automattic would face in collecting from the defendants if it succeeded. Cory Doctorow on BoingBoing, the Electronic Frontier Foundation (“EFF”), and TechCrunch praise Automattic for taking a stand against the use of the DMCA to censor critics.
The DMCA requires web hosts to take down content in response to a notice of copyright infringement or face possible liability. This encourages hosts to take content in response to a copyright claim, even if the claim is completely false. In the first case, Oliver Hotham, a student journalist in the UK, published a press statement from a straight pride group, which later regretted giving the statement. The straight pride group filed a takedown notice to remove the statement from Hotham’s website. The second case involves Retraction Watch, a popular blog that tracks erroneous scientific papers. When an Indian website copied Retraction Watch’s articles about a cancer researcher and then filed a takedown notice, Automattic was forced to comply, even though the Indian website’s copyright claim was fraudulent.
Automattic is using section 512(f) of the DMCA, which allows the injured copyright owner, authorized licensee, or service provider to collect damages from those who fraudulently file takedown notices. In August the EFF reported that Laurence Lessig and the EFF sued an Australian music label using the same provision, after the label sued Lessig for copyright infringement over a video that contained the brief usage of the song they own. Lessig and the EFF claim the video falls under fair use. These recent lawsuits demonstrate how easy it is to take down content that it is critical to an organization by filing a fraudulent takedown notice, since the procedure for collecting damages is costly and rarely enforced.
While Automattic’s decision to sue those who abuse the DMCA’s notice-and-takedown provision could mark a turning point in how hosting companies handle abusive DMCA requests, Automattic does face challenges in enforcing any judgment. Since both parties being sued are outside of the United States, it could be difficult to collect any damages against them. These cases also do little to address the issue of legitimate copyright owners abusing the takedown system to remove content that should be protected by the fair use doctrine. However, if Automattic succeeds, it may make some parties more hesitant to file takedown notices.