Copyright abuses preview a world without Section 230
Seth Stern
April 21, 2023
Artist and actor David Choe, seen here working on a mural in 2008, claims footage of him describing raping a masseuse should not be taken literally. But he's using copyright law to stop people from deciding for themselves.
This week, artist and actor David Choe made headlines by citing alleged copyright violations to scrub the internet — including journalists’ social media accounts — of clips from a 2014 podcast where he seemingly admitted raping a masseuse. He later claimed that he made up the story for shock value and said it should be taken as performance art.
The incident exemplifies the frequent abuse of copyright law to silence the press. It also previews how public figures could abuse defamation law to do the same if Section 230 of the Communications Decency Act — which shields platforms from liability for defamatory posts by users — is either repealed or recklessly reformed.
Threats to press freedom around the world are at an all-time high. Sign up to stay up to date and take action to protect journalists and whistleblowers everywhere.
Thanks for signing up for our newsletter. You are not yet subscribed! Please check your email for a message asking you to confirm your subscription.
Choe’s copyright claims are baseless for a number of reasons, first and foremost that it’s a “fair use” of copyrighted material to post and comment on excerpts of newsworthy footage of public figures. Recordings of alleged admissions of rape by a celebrity (Choe currently stars in the Netflix show “Beef”) are certainly newsworthy, regardless of how Choe spins his remarks. In fact, his explanation makes the recording even more central to the story because the public needs to hear, not just read, what he said to decide whether they believe he was being serious.
But Choe is far from the first to use copyright law to try to remove unflattering news stories from the internet. Earlier this year The Washington Post reported on a shadowy “reputation management” firm that specializes in sending frivolous copyright takedown notices to remove stories about its clients. It reported that from 2015-2021 the firm, Eliminalia, sent “thousands of bogus copyright infringement complaints to search engines and web hosting companies, falsely claiming that negative articles about its clients had been published elsewhere and stolen.”
And the problem extends beyond the United States. The BBC reported on oil lobbyists and former government officials in Equatorial Guinea using U.S. copyright law to force takedowns of critical news articles published by South African news outlets. There are countless other examples, like when Stevin John, who plays children’s TV star Blippi, tried to remove BuzzFeed’s reporting of a video that parents might find difficult to reconcile with his wholesome image.
The law enabling these censorship efforts is the Digital Millennium Copyright Act. It gives internet platforms immunity for user-posted copyright violations of which they don’t have “actual knowledge.” That immunity is necessary — otherwise it would be impossible for platforms to monitor millions of user posts for infringement.
But copyright holders can give platforms actual knowledge by filing a takedown request. Platforms that don’t comply risk liability, and they usually aren’t eager to stick their necks out for alleged infringers. There are procedures to challenge takedown requests and restore removed content, but even temporary takedowns are costly to journalists because news cycles move fast. And journalists might not have the time or the legal knowledge needed to file challenges — especially independent journalists and international journalists unfamiliar with US law.
Abuse of the DMCA is problematic in its own right but it also provides a preview of how online journalism might look without Section 230, the law that immunizes platforms from, among other things, defamatory content posted by users. It was relatively uncontroversial until recent years but now is the subject of bipartisan calls for reform as well as pending Supreme Court cases.
If it’s repealed, or if a knowledge-based standard similar to the DMCA is added (as some legislators and commentators have suggested), would platforms risk liability by keeping a post online after someone claims it defamed them? Of course not. They have no stake in individual posts and no interest in mediating defamation disputes. They’d err on the side of censorship.
And if platforms did attempt to police defamation, doing so would be even more inefficient and error-prone than policing copyright violations. While copyright violations can, at least sometimes, be self-evident, figuring out whether an allegedly defamatory statement is false (not to mention all the other gray areas in defamation law) is a fact-intensive inquiry that internet platforms are not qualified to undertake. A lot of judges can’t even get it right.
People who would like to know whether the star of the TV show they’re watching might be an admitted rapist, or about misconduct by crooked lobbyists and politicians, should oppose not only abuse of the DMCA’s procedures but also proposals to open the floodgates to similarly frivolous defamation takedown requests. We’re not saying Section 230 should be reformed at all (it shouldn’t) but, if it is, any reforms need to take into account the risk of enabling censorship of important news by people like Choe.