Copyright Week: Copyright Enforcement Tools as Censorship

The internet helps enable people worldwide to be creative, develop ideas in conversation, explore new uses of existing content, and make their own. It has opened up pathways for fun uses of copyrighted material generally allowed under law, such as memes and Instagram art, as well as more serious ones, such as news reporting by ordinary people on the scene of elections, natural disasters, and other events as they unfold. Free speech and the copyright limitations of fair use and fair dealing play a large part in allowing the proliferation of creativity on the world wide web. But attempts to curb creative output through take-down notices and proposals for even broader “stay down” notices can rapidly silence these robust pathways of communication.

Copyright enforcement tools can even be used as ‘crime and punishment’. In 2017, Ecuadorian President Rafael Correa relied on the United States’ Digital Millennium Copyright Act (DMCA) to silence political discourse and criticism. Freedom of speech and expression – including the rights of citizens to criticize, satirize, or insult their government – can be curtailed under the guise of copyright enforcement. Such actions taken by Correa are not just exclusive to Ecuador; they are also tactics taken by governments and corporations to silence critical voices. 

Current implementations of copyright enforcement often favor large entities over individuals. Under the laws of the United States, the DMCA limits liability for internet service providers (ISPs) who take steps to curb copyright infringement on their services. As such, ISPs take steps to issue take-down notices to allegedly infringing activities on their servers. But these take-down notices often go too far. In one example that set American legal precedent, Youtube removed a video posted by Stephanie Lenz in 2007 of her son dancing to Prince’s 1984 hit, “Let’s Go Crazy” (Prince also had a dispute with the Warner Bros. record company in the early nineties regarding the ownership of his name and music). Despite the video being less than 30 seconds and adhering to fair use, the video was nevertheless censored. Lenz responded asserting fair use, which resulted in the 9th Circuit Court of Appeals case of Lenz v. Universal upholding her right to post the video, stating that copyright holders must assess if the use of their copyrighted material constitutes fair use before citing infringement. The ruling has still achieved little in stemming the take-down abuse that could be happening at this very second. The repercussions extend far beyond profit motivations, as the implications that result from court cases such as this have also inadvertently given power to governmental entities to silence critical voices and opposition. 

In 2020, US Senators conducted a panel on the utility of the DMCA in the 21st century. The panel highlighted the power imbalance between the individuals seeking recourse against copyright infringement versus corporations doing the same. YouTube’s system assumes guilt on the accused and a YouTuber flagged with a strike, true or not, either capitulates by removing the video or fights against the claim. There is no global copyright law so copyright holders and fair use proponents run up against different laws by country. However, the DMCA works more for the government and corporations than individuals. The current iteration of the law allows companies to tie up individuals, defending their copyright ownership, in expensive legal battles. Specifically, YouTube’s copyright strike system can lead to the termination of a YouTuber’s account after three strikes unless the strikes are resolved. 

Although protecting corporate profit has been a primary issue in these legal battles, this strike system has been used to silence human rights campaigns. For example, the Chinese government struck down three videos from a YouTube channel featuring video testimonies from families imprisoned in internment camps, Atajurt Kazakh Human Rights, resulting in the temporary termination of the channel. The channel eventually was allowed back on YouTube, but lost all the videos it had previously uploaded.

Governments continue to utilize the DMCA to silence their opponents and stifle free speech. In 2020, YouTube shut down independent news sites in Nicaragua after receiving copyright complaints from media companies owned by the current President, Daniel Ortega. Weaponizing the DMCA to shut down opposition voices and news from independent media sources is another example of copyright enforcement tools used as censorship.

The EU updated its copyright rules in 2019, creating a big stir with a particular article, Article 13, in its directive. Critics argued that the article’s protection against copyright infringement meant implementing copyright filters – requiring online platforms to create a system that would immediately and unilaterally block content flagged as similar to copyrighted materials by an automated bot. The EU copyright framework also leaves gaps for misuse: EU countries retain the right to choose what copyright exceptions to apply to national law. As a result, the framework opens the door for governments or corporations to use copyright filters and their country’s laws to control the expression of their populace. Automated filters like these are also notoriously bad at distinguishing between legitimate uses of copyrighted content and those disallowed by law. The issues caused by automated copyrighted strikes has led some YouTubers to take matters into their own hands by creating a database of copyright-free music. 

The current implementation of copyright enforcement tools does not protect the rights of the people; rather, it focuses on copyright owners, especially companies. Copyright enforcement should protect and support people intending to use copyrighted works fairly. By taking such considerations, copyright enforcement tools can benefit everybody by allowing anyone to fairly use the work of others while protecting copyright owners from legitimate infringements. However, we must remain vigilant of governments and corporate interests wielding copyright infringement laws to censor open expression and thought.


By (in no particular order):


Zhaneille Green, Graduate Assistant at the Scholarly Commons

Ryan Yoakum, Graduate Assistant at the Scholarly Commons

Sara Benson, Copyright Librarian

University of Illinois, Urbana-Champaign