Even though in Lenz v. Universal, the court ruled that the copyright holder has to consider fair use before issuing takedown notices, it has not stopped DMCA abuses. One of the most amusing and disturbing abuses is one by the Church of Scientology.
Unlike other religions (I am mainly thinking of Christianity) which have much emphasis on spreading the words of their scriptures, Scientology is very protective of its “scriptures” both from its followers and its critics. For those of you who are not familiar with the myth of Lord Xenu, it goes as follows. (WARNING: Reading the following story without proper training, i.e. not having paid your dues to the Church of Scientology, may cause you to catch pneumonia!) The myth tells a story of Lord Xenu, who was a dictator of “Galactic Confederacy” of 75 planets 75 million years ago. After a political struggle he brought billions of people to Earth to destroy them and their floating fragments are the cause of our spiritual harm today.
The Church of Scientology keeps this information (available on Wikipedia) from its own members is by telling them that the story is so powerful that the knowledge of it is dangerous. However, recently with more and more defectors it has been difficult to keep the information secret and Scientology has resorted to copyright and trademark laws. In September 2008 an alleged rights group called American Rights Counsel LLC issued 4,000 DMCA takedown notices to anti-Scientology videos on youtube. In order to protect its safe harbor youtube had to take down the videos until they received counter-takedown notices.
This example illustrates the loophold in DMCA. People can use it to suppress other people’s voices simply because they do not agree with them. It is true someone could file a suit against the people who have sent takedown notices without reasonable grounds to suspect copyright infringement, but more often than not the cost of litigation dissuades people from doing so. Moreover there are cases (think McCain campaign videos) where there is a window of time after which the information loses its value and the few days during which the information is unavailable can do considerable damage.
Having said that, most of anti-Scientology videos were back up following counter-takedown notices. While DMCA is not perfect, it does provide a procedure for the accused infringer to put back its content if he/she considers the accusation to be false. Jane Ginsberg makes a similar point in her essay “How Copyright Got a Bad Name for Itself” comparing the US system with that in the EU where the E-Commerce Directive allows takedown notices but no counter-takedown notices.
So what is the solution to be? How can we stop well-intentioned copyright law from being abused as a weapon to secure private injunctions? I do not know the answer, but ToryMagoo44, an ex-scientologist, says Oprah!
Click Oprah and Scientology Censorship to watch a video by ToryMagoo44 pleading Oprah to invite her to the show.
Yale Law Tech 