EFF-tech-defenderCensorship is a dirty word, laden with negative connotations and so it’s not surprising to see the EFF (Electronic Frontier Foundation) dust if off (again) for use in its ongoing PR efforts to undermine rights of creators who use legal means to protect their works from online theft. The “censoring speech online” hyperbole was an effective battle cry during the SOPA debate, so why not use the same rhetoric to gin up opposition to artists’ rights and copyright law?

This time EFF’s sites are set on the DMCA (Digital Millennium Copyright Act, the law (passed in 1998) that set up a system whereby copyright holders could facilitate the removal of their pirated content from websites that publish it without authorization. Yesterday Maira Sutton launched a salvo on the EFF blog ominously titled, Copyright Law as a Tool for State Censorship of the Internet.   Sutton warns:

The DMCA has become a global tool for censorship, precisely because it was designed to facilitate the removal of online media…

Per usual, her post is written as though online piracy is a benign, practically non-existent problem.  In fact, not once does she address the ways in which copyright infringement damages damages filmmakers, authors, musicians, photographers and other creators.  Don’t people working in these fields deserve protection too? Apparently not, at least as far as the EFF is concerned.

In EFF’s world, copyright itself is a a form of censorship

Conveniently ignoring the scourge of online piracy, Sutton expresses alarm that various nations around the world are using the DMCA as a template managing copyright infringement on the web.  She calls it “state-mandated internet censorship” and warns of “harsher” copyright enforcement. Harsher relative to what?  At the moment, many countries do very little to enforce copyright law online so use of the term seems a tad hyperbolic.  Perhaps a worldwide standardization of copyright infringement protection law might be good practice for an online eco-system that has essentially become border-free.

Sutton lists 9 instances in which content was removed for allegedly political reasons via a DMCA notice. Not to minimize any wrongdoing in these particular instances, but has Ms. Sutton bothered to examine the millions of legitimate removals that occur each week worldwide?  In any enforcement system there exist errors and potential for abuse, but the the truth is that the volume of legit DMCA notices far outweighs illegitimate ones.

No system is perfect. I’ve long been critical of the DMCA, though not for the reasons  Ms. Sutton cites.  In my experience, the intent of the “safe harbor” provision of the law is routinely sidestepped as tech companies (like EFF funder Google) continue to reap billions from unauthorized online content theft.

From a creator’s perspective the DMCA is clumsy and ultimately weighted against rights holders.  Go ahead and upload a movie to YouTube. Yeah, there’s fine print under “suggestions” that politely asks, “Please be sure not to violate others’ copyright or privacy rights,” but users don’t actually have to submit any proof of ownership.  It’s the job of rights holders to search for, and submit a DMCA notice to request the removal of their content day after day after day.

If an uploader responds with a counter-notice, it’s the rights holder who has to go to court to enforce a takedown.  Most indie creators don’t have the money to initiate a lawsuit so in many cases it’s the uploader that–in this game–gets the last word as the content ends up back online.  The default mode for YouTube and the rest of the web is “go for it.”  In the end, the DMCA is all we have to fight back.

EFF’s own Chilling Effects provides an efficient search engine to find pirated links online

EFF's Chilling Effects database provides easy search to find pirated movies onlineMs. Sutton also asks for more transparency in the process.  Fine by me as long as it doesn’t include operating a “database” that serves as a de facto search engine for pirated content like the EFF’s own Chilling Effects.  Using their database of DMCA takedown notices (sent to Google and a few others) it’s easy to find direct links to pirated content around the globe. This sort of transparency is really just playing a shell game with pirate links.  Remove pirate links from Google and they receive new life, and traffic, via Chilling Effects.

Of course Ms. Sutton doesn’t mention this fact, nor does she address how Chilling Effects’ republishing of reported links in their entirety is essentially an F-You to all the creators–like me–who are working within the confines of established law to protect our creative work from profiteers.  The Chilling Effects database could easily provide transparency while redacting a portion of the pirate links, but its apologists choose not to.  That’s not transparency, that’s facilitating theft. Apparently that’s A-OK in their book.

Speaking of “transparency,” it’s worth pointing out that Ms. Sutton also conveniently fails to acknowledge her organization’s own ties to the tech industry, entities that would have a vested interest in seeing the DMCA gutted.  Her omission undermines any credibility she may have in terms of her overall arguments.  Until she, and those she represents are willing to be transparent about their funding sources, and how this money influences their mission, how can we take her complaints seriously?

Censorship is a word that goes both ways.  Clearly, when it comes to political speech it’s not a good thing, but neither is a system, seemingly supported by the EFF, where online piracy is allowed to run rampant.  When the livelihoods of creative artists are undermined, their rights are, in fact, being suppressed.

The world exists in shades of gray, but in the EFF’s, it’s black and white–a world where censorship and copyright are considered synonyms.