what censorship really looks like

For the last couple of weeks, I have been receiving notifications from concerned organizations of what "the internet will look like if SOPA passes". Although attention getting, they don't present the most accurate picture. And then hours before the Stop Online Piracy Act is passed by the fair Congress who calls the entertainment industry "master", an abuse of existing bad law shows up on my virtual door step. This is what SOPA style censorship would look like, except far more ubiquitously:

Here's the problem. The Digital Millennium Copyright Act of 1998 is also considered to be a bad law written and paid for by the entertainment industry. Under the terms of the DMCA, a company need merely claim they hold a copyright interest in the infringing material, and the hosting service is obliged to "take-down" that content or lose their defense that they were merely unwittingly transporting alleged infringing material. Note the key word "alleged". Prior to the DMCA, a copyright holder would have to provide some evidence that the material was infringing their copyright; after the DMCA their word was considered good enough.

What has been censored here? You have no idea, and if SOPA passes, you'll might not even be able to find out at all. Fortunately as of this writing, a smaller body than YouTube is still hosting Tech News Today 391 so you can still see what the kerfuffle is about. At about minute 26 in TNT#391 there are three journalists talking about the abuse of the DMCA in the takedown of a different video.

And here's the kicker, UMG then told YouTube that the journalistic criticism of UMG by TNT infringed UMG copyright. What have they infringed? TNT doesn't know, because they didn't have to be told, I don't know, and we might never.

The long standing Fair Use Exemption (17 U.S.C. §107) of the US Copyright Act of 1976 has carved out an exception “… for purposes such as criticism, comment, news reporting…” where one doesn't need to have permission of the rights holder to make a news report critical of the material. But the DMCA is being abused to abridge that provision of law. Remember the take-down displayed above is not for the original material but journalistic discussion about the original material.

This will almost certainly get worse when SOPA is passed. I thank Tom Merrit of Tech News Today for bringing this to my attention.