Bad Reviews: How Companies Abuse the DMCA to Silence Negative Criticism
In last week’s blog post, I outlined the different ways in which a business can legally go about silencing negative reviews꧅. With the exception of the reviewer or review site voluntarily removing content, or a court order requesting a removal based on defamation, there is little that can be done to forcefully censor online criticism in a manner which is consistent with U.S. law.
Copyright laws in the United States have clear exceptions put in place to protect an individual’s . The specifically allows for the use of copyrighted works without permission from the rightsholder, for the purposes of commentary and criticism. With respect to the enormous industry of online reviews, there are very few cases in which copyright infringement can legally be used to silence negative reviews.states that the complaining party in a copyright infringement notice must have a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” In other words, businesses should not knowingly🎶 send baseless takedown notices claiming infringement. states that “Any person who knowingly materially misrepresents... that material or activity is infringing” will be held liable for damages “including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation.” These penalties have not seemed to deter numerous companies at taking a crack at abusing the system anyway. This approach to silencing bad reviews has additionally been , leading to even worse publicity if the story gets circulated on enough news sites.
Sadly, the “good faith belief” clause of the DMCA has been shamelessly violated over the years, in increasingly malicious ways. There are several commonly used abuses of the DMCA which have become the go-to last resort for businesses desperate to get a review removed at any cost. One of the most common methods is claiming copyright infringement for simply mentioning the name of the business or product being reviewed, essentially using trademark claims disguised as copyright via the DMCA. In one highly publicized incident, for including the words “GoPro” and “Hero” in its review comparing the GoPro Hero 3 camera to Sony’s HDR-AS15. The letter stated they had a “good faith belief” that the DigitalRev infringed on their trademark rights by using the name of the company in its review.There are two major issues with this notice. Firstly, using the name of a product to review that very product🎃 does not violate any copyright law, and falls completely within the fair use exception for commentary and criticism under the DMCA. Secondly, the DMCA . Even if they were to take the trademark infringement claim seriously, no such trademark protection exists for using a company or product’s name in a review.
GoPro’s poor attempt at taking down a (mostly positive) review of the GoPro Hero 3 erupted into a deluge of unwanted for the camera company. The fact that they into an even worse position, and were pressured into giving a shortly thereafter, has not scared other companies away from abusing similar tactics. Three months after GoPro’s unsuccessful attack on DigitalRev, photography lighting company Rotolight for a Vimeo review comparing the Rotolight Anova to a competing product, the Kino Flo Caleb. concluded that the Rotolight Anova was, in his opinion, an inferior product. Unhappy with Lennie’s review, Rotolight decided to file a DMCA takedown notice to Vimeo claiming “the title and tags for the Video, did infringe our trademark.” The video was then taken down by Vimeo, which at the time only had about 150 total views. After Lennie took to the Internet , the takedown went viral across tech sites and copyright blogs, unanimously shaming Rotolight’s blatant abuse of the DMCA.Rotolight, like GoPro, for their baseless claims of copyright infringement. In an almost identical series of events, both companies were caught red-handed trying to get away with suppressing negative criticism with DMCA notices they had toᩚᩚᩚᩚᩚᩚᩚᩚᩚ𒀱ᩚᩚᩚ have known had no basis whatsoever. Both companies, were then rightfully shamed into publicly retracting their copyright claims.
DigitalRev and Den Lennie were fortunate enough to recognize there was something deeply wrong with the DMCA threats directed at them. They were able to react accordingly because of that, and ultimately stand their ground to keep their reviews up. But what happens to the people who are unaware of their rights? Some small-time blogger may not be familiar with the intricacies of copyright law, and even if they are, , especially in the face of a powerful corporation. They may decide it’s far easier to simply take down the review, than to risk litigation with a major company. Additionally, some video hosting sites like YouTube will , leaving creators with no choice but to file a counternotice if they want to restore their content. This has commonly happened with to YouTubers that include gameplay footage in video game reviews. The DMCA’s “takedown unless contested” policy is dependent upon companies acting with integrity, only sending notices when they are positive their copyright has been infringed upon. A recent found that approximately 28.4% of takedown requests “raised some question about validity,” with about 7.3% of targeted content having a potential fair use defense. There is no way of knowing exactly how many of these DMCA abuses have been successful, and it is safe to assume most people don’t have the time, money, or public platform to fight back.While the Electronic Frontier Foundation (EFF) has been kind enough to support some otherwise helpless bloggers (see Zillow’s attack on McMansion Hell𝔉), they can’t possibly provide legal assistance to everyone that receives a fraudulent takedown notice. Barring any unforeseen changes to the DMCA, the best thing digital rights activists can do is to spread awareness about these blatant attacks on freedom of speech. Hopefully companies will think twice before threatening innocent reviewers with frightening cease and desist letters. They might just end up with a PR nightmare much worse than any one negative review.
Sending DMCA notices based on trademark infringement, or alleging copyright infringement in cases of fair use are by far the most common methods of attempting to silence user reviews. But what if a business claims the review itself𓆏 was fraudulently copied, when in fact it wasn’t? The DMCA “stolen review” scam has been growing in popularity over the past few years as one of the more clever tactics to remove undesirable material from a website or search results. This less-publicized abuse of copyright law will be discussed at length in the next part of my series of blog posts on user review takedowns.
Mostafa El Manzalawy is a graduate of Sarah Lawrence College. He is currently pursuing his M.A. at NYU Gallatin, studying the tech industry and its effects on global wealth inequality. Mostafa is a tech enthusiast, spending his summer as an intern at the Berkman Klein Center for Internet and Society doing research relating to data protection and privacy law for the Lumen database. In his free time, he can be found spending far too much time on his computer, listening to podcasts, and indulging his interests in Eastern philosophy and human behavior.