Using DMCA Takedowns as a Silencing Tool

Feb 18, 2014 • Health, Legal

DMCA as a silencing tool

Myles Power uses videos to communicate science in a fun and accessible way. His 81 videos on YouTube include everything from challenging anti-vaccine rhetoric to growing bacteria. Over the course of the last three years, Power has grown an engaged following of over 23,000 subscribers. Today, all that work nearly vanished.

Two months ago, Power decided to tackle House of Numbers, which bills itself as a documentary about HIV and AIDS but in reality is more of a propaganda piece denying the existence of HIV, and claiming that AIDS is caused by the drug cocktails given to people with HIV — a conspiracy by the pharmaceutical industry to sell a lot of drug cocktails, you see.

Before its release, 18 doctors and scientists who were interviewed for the film came out against House of Numbers filmmaker Brent Leung, stating that he “acted deceitfully and unethically” when he approached them to be a part of his film. The rest of the scientific community didn’t mince words in response to the film’s 2009 release either — the Lancet Infectious Diseases called it a “toxic combination of misrepresentation and sophistry,” labeling it “misguided and misbegotten” at best and “downright malevolent” at worst., a site run by doctors and researchers who are committed to reporting and explaining research being done on HIV and AIDS, has a full page explaining the misinformation presented in the film.

Even the New York Times bashed it for being “willfully ignorant” and “a weaselly support pamphlet for AIDS denialists,” calling it “a globe-trotting pseudo-investigation that should raise the hackles of anyone with even a glancing knowledge of the basic rules of reasoning.”

So, basically, saying that this movie is bunk is nothing new. What is new, however, is the presentation. Power knows how to make a video that people want to watch and share. To date, his five videos explaining misleading aspects of House of Numbers have reached 40,529 people — not just readers of the New York Times or subscribers to the Lancet or people seeking out information about AIDS who might stumble onto via Google, but laypeople of all stripes. Powers is reaching a wide, international audience and communicating science in an effective and engaging way.

Knowledge Matters, LLC., which produced House of Numbers, didn’t like that. Its director Martin Penny lodged three complaints against Power, saying that Power’s YouTube videos — which use footage from House of Numbers — constitute copyright infringement. As it happens with such things, YouTube soon suspended several videos and notified Power that his account would be terminated if he didn’t file a counter-notice or remove other infringing videos by today.

Imagine three years of engagement with your work, 23,201 subscribers, and 2,076,442 total views — gone. It almost happened to Myles Power.

The sad part is that it’s not uncommon to see the Digital Millennium Copyright Act (DMCA) misused as a way to remove undesirable content. People who have no experience with this can be easily bullied into removing their work from internet services, even when it falls under the “fair use” exemption. Foreigners, like Power, are particularly vulnerable if they want to be able to come to the U.S. or if they have assets here, as sending a counter-notice means accepting the jurisdiction of a federal court in the district of one’s service provider. That means that if the counter-notice triggers a lawsuit, a content creator has to go where the service provider is in order to fight it.

The small consolation is that section 512(f) of the DMCA makes it a liability for making false claims not only in a counter-notice but in a takedown notice as well. If Liam Scheff — another YouTuber who appeared in House of Numbers, and who according to Power filed a DMCA against Power for using footage of him from the film — doesn’t have a copyright claim on the footage used and filed a takedown notice nonetheless, Power could seek damages in court. Action against the documentary producer Knowledge Matters LLC would be more complicated (arguing fair use always is), but the Electronic Frontier Foundation (EFF), which frequently combats attempts to silence people using copyright claims, has come to Power’s aid.

“Movie backers Knowledge Matters LLC and Martin Penny promptly filed several DMCA notices targeting the videos, because Powers included clips from the movie in order to critique it,” writes Corynne McSherry in the EFF blog. “Powers could, of course, counter-notice, but understandably hesitated to do so, fearful of retaliation. With EFF’s help, Power has now challenged the takedowns — but they should never have happened in the first place.”

Power’s YouTube channel is still up as of the posting of this piece, along with all five of the videos discussing the fallacies in House of Numbers. You should go watch them.

Header image via Myles Power.