Imagine you’re a marketer at GMO-free Food Co, a company that sells organic, GMO-free snacks. You want to create content on your WordPress blog to educate your potential customers about the benefits of your products. This strategy includes discussing your company’s position about GMO foods—namely, that they’re unhealthy and bad for the environment. (Maybe that’s true—or maybe not—but it’s your company’s position).
You’re doing your research and you come across an interview with a scientist from a company that manufactures GMO foods (aka the enemy). Let’s call that company GMO-full Food Co. You find an incriminating quote that you know will paint GMOs and GMO-full Food Co in a bad light. So you copy and paste that quote into your blog post.
Let’s say you’re not taking anything out of context; you’re playing fair, just reposting a chunk of relevant text word-for-word. You hit “Publish”, the post is a hit, and everyone’s lining up at Whole Foods Market to buy your healthy treats. Ding, Ding, Ding!—that’s the beautiful sound of return-on-investment (aka every content marketer’s dream).
The Dream Becomes a (Legal) Nightmare
But then suddenly, the post disappears. Your once-viral content is nowhere to be found, and your food is rapidly aging on store shelves. The culprit?—A “DMCA takedown notice” from GMO-full Food Co. Wait…what’s that?!
Some context for you: a recent Federal Court case, Automattic, Inc. v. Nick Steiner, took up this issue. Automattic is the owner of WordPress.com. Journalist Oliver Hotham published an interview on his blog via WordPress with a group called Straight Pride U.K., a rival of the LGBT community. Hotham’s post also included information from a Straight Pride U.K. press release. After the post received some unwanted attention, the group’s press officer, Nick Steiner, asked Hotham to take down the article, but Hotham refused. Straight Pride U.K. then filed a DMCA takedown notice with Automattic requesting that the post be taken down on the grounds of copyright infringement.
Yes, this is a real thing. And it happens. Here’s a little background for my marketing (aka non-so-law-savvy friends): DMCA (Digital Millennium Copyright Act) states that if you own the copyright to a piece of content, such as written copy, images, or videos, and someone uses it online without your permission, you can send a takedown notice to the hosting service. The service will then take down the offending content. Period.
Who’s Really Being Protected?
Hosting services are provided with what’s called a “safe harbor”. The hosting service can’t be sued directly for copyright infringement if it complies with the DMCA takedown procedure.
Why do we need these DMCA takedown notices in the first place? Well, theoretically, if this safe harbor protection didn’t exist, there would be no blogging, social media, or web hosting companies; they would all have been sued out of existence for inadvertent copyright infringement. That’s right: without this type of legal protection, the internet as we know it could not exist.
DMCA was intended to protect copyright owners whose content is being ripped off online—not people who want to stop the expression of a differing point of view. It’s cost-prohibitive for a company like WordPress.com to have a live person review the merits of every single DMCA takedown notice it receives. As a result, most sites will simply comply with these notices automatically (or is it automattically?) I digress…
Legal System v. Content
Straight Pride U.K. used this to their advantage. The blog post was taken down.
As a journalist posting this content on his own blog, Hotham presumably didn’t have the funds for a protracted legal fight. And that’s probably what Straight Pride U.K. was counting on: it assumed Hotham wouldn’t be able to do anything about it, and the posts would stay down.
Bringing this full circle, let me ask you this (remember—you’re a marketer at GMO-free Food Co): would your fledgling snack company be able to lawyer up against GMO-full Food Co?
The Dollars and Sense of It
Fortunately, in this case, Automattic was willing to invest serious time and money into fighting Straight Pride U.K.’s abuse of the DMCA system. In the end, the Court found in favor of Automattic, and therefore legally, the content could now go back online. The Court awarded Automattic over $25,000 to cover certain costs and attorney fees. Believe me when I tell you that Automattic spent way more than $25,000 on this case. But a win is a win, and that’s great news for the blogger, right?
Not so fast. The Court did not find that there was enough evidence or sufficient legal precedent to award damages to Hotham based on his alleged reputational harm, emotional distress, or chilled speech. However, this case does provide a useful precedent that will hopefully discourage potential abusers of the system.
Best Practices for Content Marketers
To wrap it up, let me say that DMCA takedown notices are a blunt instrument. The intent of Congress in drafting the DMCA was not to suppress criticism, but to give content creators a way to respond to honest-to-goodness copyright infringement without shutting down the internet entirely.
So if someone like our fictional GMO-full Food Co tries to use the DMCA to fight your content marketing efforts, the best practice is to be prepared with alternate content that’s ready to go…or get ready to defend your case.