By
Mike Masnick
While some still believe that copyright can
never
be used to censor, we see it happen all the time. Here's just the latest
example. The websites for both the
Center for a Stateless Society and the
Students for a Stateless Society have
been taken down by Bluehost, an ISP with a history of
taking down entire
sites based on single DMCA claims (i.e.: don't ever use Bluehost as a
hosting company). Why? Apparently because of a
DMCA takedown notice sent by
lawyer JD Obenberger on behalf of his client, Olivier Janssens (though, in
the DMCA notice, Obenberger refers to him as Oliver, not Olivier).
What
"copyright" did these sites violate? Well, it turns out that the sites were
somewhat (reasonably) annoyed by comments by some members of Students for a
Stateless Society in Belgium, and so they
highlighted some comments which they felt were inappropriate,
calling attention to the fact that these sorts of comments were inappropriate
and at odds with the views and goals of the organization. One of those whose
comments were called out was (you guessed it) Olivier Janssens. You can read the
comments at the link above, which S4SS argued were Islamophobic, which they felt
went against their basic principles, and then the group officially disassociated
itself with the chapter to which Janssens and others belonged.
Then came
the DMCA notice from Obenberger, which is really quite a thing to read. On my
first read, I wondered if it was fake, because not only is it completely over
the top, in it, Obenberger more or less admits that the takedown has little to
do with copyright, but is to try to hide the (accurately reported) words of
Janssens, and makes a statement that I still can't believe anyone has ever said
in seriousness (bolded below):
I am the attorney for Oliver Janssens who is the victim of
copyright infringement and a particularly dangerous violation of his right to
privacy which affects his personal safety and security. In other words, what
follows is not your typical DMCA letter about whose porn is being bootlegged by
which pirate.
Your hosting customer, who operates http://s4ss.org,
decided to embarrass Oliver Janssens in the worst and most effective way - by
words out of his own mouth. Words of his own creation which, when reduced to
the tangible medium of a FaceBook page, acquired a copyright recognized by the
United States Copyright Act and international conventions concerning copyright.
And because the words he wrote, in what he imagined to be a close discussion
among like-minded persons in a FaceBook page, reflected heterodox social and
political views about Muslims in Europe, its further publication on your servers
presents certain practical dangers to the safety and well-being of Mr. Janssens,
who lives and works in that part of Europe in which violence is so routinely
applied by Islamic Extremists to those who oppose them, that it seldom makes the
news here when its victims are nailed into coffins and buried.
Mr.
Janssens participated in a harsh social/political discussion with several other
perÂsons in a FaceBook group and his comments may be understood as antagonistic
to Muslims, at the risk of understatement. I'm sure that, if he could see how
they would be published via your servers to the entire world, he'd pull them
back. It is too late for regrets. But it is not too late to try to put a
tourniquet on this bleeding by stopping the further illegal dissemination of his
property.
I am writing this letter in an effort to reduce the chances
that Mr. Janssens may become a target for violence and harassment. I am writing
to you because, when Mr. Janssens appealed to the operator of the site, your
hosting customer, with a request for a takedown of this material, his own
private words written among friends, his own intellectual property, your
customer operating the site told him to"pound sand" yesterday, on September 19.
He has not authorized anyone to repost his words, yet a user of your web
hosting services, S4SS Admin, has posted them on the S4SS website, specifically
on the web page indicated below. Further, Oliver Jannsens has not authorized the
translation into English of the writings, which your hosting customer also
publishes at the same page.
By providing hosting services to that site
and its operator, you materially assist the infringement of the exclusive
copyright that Mr. Janssens possesses in those words of his authorship, a
copyright created under the Berne Convention and American law at the moment he
typed them and pressed the Return Button. Should Mr. Janssens become the victim
of an assault or murder traceable to this infringement, should he be harassed
and ridiculed and run out of his employment or lose his terrified family,
committed by a person who targeted him, the embarrassment to
Bluehost/Hostmonster would be enormous. And the potential damages, should you
disregard this request and demand under the DMCA, and should Mr. Janssens become
the target of retaliation inflicted upon him in Europe by a religious zealot who
read about him on the website in question, stagger the imagination.
*I
would demand, on behalf of my client, that you 1) immediately terminate the
hosting of these files, 2) delete their contents from your servers and all other
media, 3) advise us of the identity of the uploader, and 4) inform the posters
and your hosting client that their illegal conduct jeopardizes not only them,
but you as well.
The letter seemed so preposterous that I
emailed Obenberger asking for confirmation that he'd actually written and sent
it, but as of publishing have received no reply (well over 24 hours since I
emailed). Not only is that bolded line such an incredible statement -- saying
that it's somehow unfair to actually quote the words someone said -- his further
explanation appears to be a rather blatant admission that the takedown here was
not for anything having to do with copyright at all, but some random,
unsupported worry that Janssens'
actual statements might reflect poorly
on Janssens. Because they do.
Obenberger, by the way, claims to be a
strong First Amendment defender. His website is littered with claims about his
strong belief in free speech and the First Amendment, and how he goes to great
lengths to protect that right. That's kind of funny as he's now taking down an
entire site via an incredibly questionable DMCA claim. And there's a very good
chance he knows that his DMCA notice is highly questionable. As the On Alliance
blog
points out, Obenberger himself has
written about filing DMCA notices in which he goes into great
detail, including noting that you shouldn't file a threat of a lawsuit if the
copyright holder hasn't registered the copyright with the US government
prior to the alleged infringement. Somehow that seems quite unlikely
here, and yet he still sent the takedown.
While it's entirely possible
(though quite a stretch) that Janssens could face the consequences of his words
in a manner suggested by Obenberger, that's the nature of free speech. You are
free to say what you want, but it does not make you free from the consequences
of your speech. Furthermore, copyright has nothing to do with that. You don't
get to claim that it's a copyright violation because someone's words might
legitimately be used against them. That's the point in which the DMCA letter
slips into admitting that this has nothing to do with copyright at all, but
rather is an attempt to abuse the DMCA process to silence Students for a
Stateless Society for calling out Janssens' statements.
Furthermore,
even if there was a copyright issue here, this is about as slam dunk a fair use
claim as you could possibly imagine. S4SS
quoted a few brief snippets of
a Facebook discussion to call certain people out on their statements. The idea
that there's a legitimate copyright claim there is preposterous. At the very
least the use was clearly fair use. It was used for commentary and criticism. It
was not used for commercial purposes (at all). The nature of the "copyrighted
work" (already a stretch) was some bigoted Facebook comments (which were
unlikely to be registered prior to the alleged "infringement"). There is no
market for the works, so the impact on the market was nil. Instead, it seems
clear (and, Obenberger more or less admits this in the DMCA letter itself), the
entire purpose was to censor the site that called out the statement of his
client.
If anything, it makes you wonder if Obenberger and Janssens may
have opened themselves up to a significant
DMCA
512(f) issue in arguing that such obviously non-infringing content was
infringing.
I asked folks associated with C4SS and S4SS for more details
about this as well, and was forwarded Jenssen's original threat email demanding
that the content be removed (before he got Obenberger involved), and it's
equally ridiculous. It claims that "you do not have my permission to repost my
opinions" and claims it's an "official cease and desist letter," and if they
don't comply he'll sue. Of course, it's difficult to see how he has any grounds,
whatsoever, to sue. Of course, S4SS has the right to repost his opinions,
especially in the manner in which the organization did so.
After C4SS
and S4SS published the bogus takedown notice again, Jenssen sent yet another
email, though somewhat more conciliatory, saying that it wasn't his intention to
have the entirety of both sites taken down, and that as an
"anarchist-libertarian" he's "not exactly in support of copyright." Of course,
he probably should have thought of that before hiring a lawyer to send a highly
questionable DMCA takedown notice that is entirely hinged on copyright law. He
does apologize for the takedown, and tries to explain his initial comments which
got him into the mess in the first place, claiming that he went too far in his
comments, believing (incorrectly) that it was a private group. Again, this isn't
fully convincing, because he
did make those comments.
And, of
course, you have to wonder how apologetic he is, when after "apologizing" and
giving his side of the story, he immediately adds the following:
If you continue this, I will have no other choice than to
continue protecting my person by having it removed, and additionally I will also
start pressing personal charges to the persons doing so (for endangering my
life/family intentionally). I have a practically unlimited budget to do so, but
obviously this is not what I want.
Again, I'm curious as to
what legal basis there is to press charges against someone for quoting someone
else accurately. That would make for an interesting lawsuit as well.
In
the meantime, however, we've got a bogus DMCA notice that has completely taken
down the sites of two organizations, and threats of further lawsuits, even from
someone who claims he doesn't believe in copyright law. But, no, copyright could
never possibly be used for censorship.
