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Redactivism: How the Digital Millennium Copyright Act Aids Censorship of Political Speech

Redactivism: How the Digital Millennium Copyright Act Aids Censorship of Political Speech

Elliot Rosenbaum

That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights: ….That they are entitled to life, liberty, & property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.[1]

In the above resolution, the First Continental Congress ratified an inspiring vision of citizen rights in its fledgling nation, yet ultimately proclaimed an even more ambitious goal as its rallying cry in the Declaration of Independence just two years later in 1776.[2] Given the modern proclivity for examining the words of the Founders to determine current law, legal minds of the digital age should not view the Declaration’s replacing “property” with “pursuit of happiness” as an accident. The absence of “property” in the list of “unalienable Rights” in the Declaration of Independence should serve as a guide for modern priorities when “liberty” interests, like freedom of expression,[3] and “property” interests, like copyrights, conflict.[4] Currently, the legal system appears to place higher priority on copyrights than it does on free expression when the two conflict—even when that expression comes in its most sanctified form: political speech.[5]

To demonstrate the current state of affairs, try to determine which of the following three scenarios the law prevents copyrights from overriding free expression: (1) a political group seeks to remove a journalist’s blog from the web for quoting and criticizing part of the group’s manifesto as an infringement of the group’s copyrights;[6] (2) major cable news networks seek to remove presidential campaign ads from the web in the immediate run-up to election day for infringing their copyrights;[7] or (3) an actress receiving bad publicity for her performance in a controversial political film seeks to remove the film from the web for altering her performance in production without her permission, thus violating her copyright interest in her work.[8] Choosing the correct scenario may prove difficult because it is a trick question: in each instance, current law permitted and encouraged private online service providers (OSPs) to remove these political expressions from the web. Even though the courts in the first and third examples ultimately vindicated the censored parties on the substantive merits of their respective claims, copyright law grants pre-litigation injunctive relief to digital censors with little regard for the elevated status political speech enjoys in the rest of the U.S. legal system.[9] Stories like these are becoming increasingly common in the digital media field, yet lawmakers continue to strengthen copyrights rather than foster freedom of speech in the public domain.

This Note will first recount some of the early history of copyright law. Next, the Note will explain relevant parts of the modern system as relates to digital political and commercial speech. The Note then concludes by suggesting some approaches for tipping the scales in favor of uncensored speech. More specifically, Part I begins by discussing the origin of copyrights in England. This discussion touches on a few English copyright cases in order to highlight the debate over copyright law’s doctrinal origin: common law or statutory law.[10] This debate helps illuminate the intent of the Framers when they included the Copyright Clause in the Constitution.[11] Part I concludes with a summary of the foundational principles behind American copyright law, thus setting the stage for the statutory development of U.S. copyrights.

Next, Part II summarizes the development of the modern U.S. system. This history mentions international intellectual property treaties like the Berne Convention and the formation of the World Intellectual Property Organization (WIPO) at the United Nations (UN) before addressing the U.S. Digital Millennium Copyright Act (DMCA) and its safe harbor provision.[12]

Part III tacks off the legal discussion and details scenarios where copyright owners have used the DMCA to censor speech, focusing on the uneasy compatibility of traditional copyright law and the public domain over digital media. This section pays particular attention to cases of political speech censorship and shutdowns of small independent digital media businesses made possible by the DMCA’s takedown provision. This discussion culminates by bringing the reader through a day in the life of a business owner attempting to navigate the DMCA’s counter-notice provision.[13]

Part IV shifts into legal analysis of the relevant case law dealing with the DMCA’s safe harbor provision. Seminal cases such as, Lenz v. Universal, 815 F.3d 1145, 1153 (9th Cir. 2016), will show how digital copyrights exacerbate problems in traditional copyright law and how courts struggle to reconcile statutory procedures with fair use claims.

Part V deals with a series of potential solutions to the takedown problem. Specifically, this section discusses the merits of a federal anti-SLAPP motion, a better counter-notice process, and takedown mitigation. Ultimately, this section advocates for new statutory authority for the Copyright Office and the Federal Communications Commission (FCC) to directly intervene in the takedown process and conduct fair use adjudications before a takedown is permitted to take effect.

Questions and inquiries regarding this Note may be forwarded to the author at

[1] Declarations and Resolves of the First Continental Congress, N.C.D.1, October 14, 1774 (emphasis added).

[2] Declaring the citizen rights for “Life, Liberty, and the pursuit of Happiness” in the Declaration of Independence. The Declaration of Independence, para. 2 (U.S. 1776) (emphasis added).

[3] See Patterson v. People of Colorado, 205 U.S. 454, 464–65 (1907) (holding free speech and free press to be “essential parts of every man’s liberty”).

[4] See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (discussing the source and nature of property interests).

[5] See New York Times v. Sullivan, 376 U.S. 254, 273 (1964) (finding “the ability to criticize government and government officers as ‘the central meaning of the First Amendment.’ ”).

[6] Automattic, Inc., v. Steiner, 82 F. Supp. 3d 1011 (N.D. Cal. 2015).

[7] Fred Von Lohmann, McCain Campaign Feels DMCA Sting, Electronic Frontier Foundation (Oct. 14, 2008)

[8] Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015).

[9] See Steiner, 82 F. Supp. 3d at 1026 (finding defendant knowingly misrepresented his belief that his group’s manifesto and press release were protected by copyright with the specific intent of removing the content from plaintiff’s blog.); see Garcia, 786 F.3d at 740–41 (holding plaintiff’s acting was not a “work of authorship” capable of conferring copyrights). The situation in note 7 never made it to court for mootness. The DMCA requires content restrictions to remain in effect for a minimum of 10 days. Election Day was so close to the takedown that polls closed —and with them, John McCain’s presidential hopes — before the campaign page could be restored. Von Lohmann supra note 7.

[10] Donaldson v. Becket, 4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774); Millar v. Taylor, 4 Burr. 2303, 2304, 98 Eng. Rep. 201 (K.B. 1769).

[11] U.S. Const. art. I, § 8, cl. 8 (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”).

[12] 17 U.S.C. § 512(a)–(n).

[13] 17 U.S.C. § 512(g).

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