Author: Jonathan Bailey

Michael Crook claims to be a "friend" of copyright law, but he takes his twisted notion of friendship to a dangerous extreme. On his "Facts vs. Fiction" page, he says that, while he supports free expression, "copyright holders have stronger rights than the idiots whining about 'free speech.'"

However, his recent abuse of the DMCA has not only jeopardized free speech rights, but also the rights of copyright holders on the Web. In addition to being a blatant attack on the free expression of critical commentary, Crook's false DMCA filings may make it harder for Webmasters with legitimate copyright issues to resolve them efficiently and effectively.



Crook's antics, in the long run, may even lead to new legislation that will make it more difficult to fight scraping, content theft and plagiarism.

Safe Harbor Abuse: A Brief History

The safe harbor provisions of the DMCA, when compared to the anti-circumvention provisions, have largely escaped controversy. However, abuses of the provisions via the notice and takedown procedure Crook is so fond of, did not begin with Crook.

The most famous case of DMCA abuse involved the Church of Scientology (COS) who, in 2002, filed a DMCA notice with Google to get many of their critics delisted from the search engine. Though the content was re-listed following counter-notices, the issue drew a great deal of attention to the potential for abuse that came with the safe harbor provisions.

Sadly, the Church of Scientology's abuse of the DMCA has continued since then. At least one site was the recipient of a DMCA notice in September 2005 and the Church has sent so many that they have been nicknamed “Avagrams” after Ava Paquette, the COS attorney that signs most of them. There is even a song spoofing Avagrams.

The potential for safe harbor abuse was brought to light again in November of 2005 when the University of Southern California released a study (PDF) that claimed 30% percent of all DMCA notices “presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like).”

Though the study had several flaws in it, especially in regards to its sample, it raised several questions about the viability of the safe harbor provisions and was widely circulated in copyright circles.

When put in this context, it appears that the Michael Crook notices are just another in a long string of DMCA abuses. However, as the EFF lawsuit shows, this is no ordinary case of safe harbor abuse — it is something much larger and much more dangerous.

Extreme Abuse

The Michael Crook notices are not a simple matter of a copyright dispute that should be settled by a court. He didn't just omit information on the DMCA notice or make an honest mistake in the complicated world of copyright law. There are with Crook no intricate fair use debates, or nuanced questions about complicated copyright issues. It's about as cut and dry as copyright law gets.

Michael Crook does not own the copyright to the image in question. It is that simple. With photographs and videos, copyright law protects the photographer, not the model. It even says so on the United States Copyright Office Web site in plain English. Despite his claims of holding a “copyright interest” in the work, its copyright belongs squarely to Fox News, who has given clearance to use it.

However, even if Michael Crook did own said copyright, the use is almost certainly fair. Transformative uses, uses which are for a different purpose than the original, are almost always protected as fair use, especially if they are for commentary/criticism and do not impact the potential market for the original work. It's almost impossible to imagine any judge deeming this use to be infringing.

The problem with such a flagrant abuse is that it creates a backlash that, while understandable, often goes too far. While there is certainly a need to change the DMCA to add protections against false notices and hosts should be more intelligent about how they handle DMCA notices, there is still a need for hosts and copyright holders to work together to fight cases of infringement that go beyond what is generally considered acceptable on the Web.



Without cooperation, the Web becomes even more ripe for spam blogs, massive content theft, plagiarism and other abuses of the liberal ideas about sharing that have become the norm on the Web. However, the Michael Crooks of the world only breed mistrust, making hosts more hostile, instead of merely skeptical, about copyright infringement claims. This can prompt them to reject potentially valid complaints, leading to both headaches for Webmasters and legal troubles for the host.

It can also prompt both hosts and users to move their servers to countries with weak copyright laws, even if they have no plans on engaging in copyright infringement. Though the EU, Canada and Australia all have some form of safe harbor legislation, many other nations do not and if false DMCA notices become a problem major hosting operations might shift to or start up in those countries, meaning that no recourse will be possible for those with legitimate concerns.

This could recreate the lawlessness that was common when the Internet first started, making the Web not just easier for those that wish to infringe copyright, but also for those that want to peddle scams and generally pollute the Web.

However, the greatest problems with these false notices might start at home.

The Voters Are Restless

Free speech is probably the most valued right in the United States. Though both free speech and copyright are protected by the U.S. Constitution, it's the first amendment that most, including myself, hold the closest to their hearts.

When free speech rights are attacked, people respond. If false DMCA notices become enough of a problem, it is only a matter of time before voters take notice. If that happens, then politicians will take notice and the law will likely be rewritten.

However, the United States safe harbor provisions already provide a great deal of protection against false notices, especially when compared to the EU system (PDF). If hosts were wiser about how they handled notices rather than simply rubber stamping them as they crossed their desk, false notices would be much less of an issue.

Still, some changes to the DMCA would be welcome. However, there is always a risk that Congress will make things many times worse on the second try. If they slip up either way, throwing up too many roadblocks or offering too little protection, the effect on the Web could be catastrophic.

Copyright is a delicate balance and it is a balance generally best set not by lawmakers, but by public consensus and market forces. Those with smarter copyright policies will go farther than those with bad ones.

However, dramatic shifts in the law might make it impossible to find such an equilibrium. The current system isn't perfect by any stretch, but individuals and organizations have done a great job expanding on it to find a more realistic balance.

For that kind of building to continue, copyright law cooperation and consistency, both in law and practice, will be key.

Conclusions

The best possible outcome for this case would be a swift victory by the EFF and Diehl. Hopefully that will deter future abuses of the safe harbor provisions and encourage hosts to develop more intelligent processes for handling DMCA complaints.

Fortunately, that outcome seems all but certain. The copyright issues are about as clear cut as they can be and Crook seems to be doing very little to further his case.

In the end, Michael Crook himself is not much of a threat to free speech or copyright. However, the Michael Crooks of the world, are.

Other 10 Zen Monkeys articles on Michael Crook

Jonathan Bailey is the author of the Plagiarism Today blog.