Weaponizing DMCA’s: How Copyright Systems are Being Abused to Restrict Speech

Weaponizing DMCA’s: How Copyright Systems are Being Abused to Restrict Speech

Andrew Masson is an IPilogue Writer and 2L JD candidate at Osgoode Hall Law School.

DMCA (Digital Millennium Copyright Act) strikes and disputes are often thought about in the context of music and video, however, it can be for any copyrightable content. In this case, an entire blog website of a crypto critic was consequently removed due to multiple DMCA strikes. However, these were fraudulent claims that utilized a back-dating technique to fake plagiarism.

Image Source: Lumen, Over thirty thousand DMCA notices reveal an organized attempt to abuse copyright law.

Mike Burgersburg published multiple articles critical of cryptos on his blog hosted on Substack. Then, a company called UNFT News copied those articles and published them on their website but post-dated them. So, it appeared that Bursgerburg had plagiarised their work. UNFT News then issued multiple DMCA claims against Bursgerburg using DMCA.com. Given it did this for multiple articles he was subject to Substack’s repeat infringer policy and missed the deadline to refute the claims. Therefore, he temporarily lost his blog by July 15, 2022. The blog was later reinstated and Burgersburg was able to respond to the claims under Substack’s policy. Yet the situation highlights the major flaws in the DMCA system.

DMCA perjury

The issue with the current format of DMCA is that it acts as a shield for larger hosting sites and a sword from any person regardless of the validity of their claim. Although submitting a false DMCA claim leaves someone open to perjury, it seems to rarely be enforced. Currently, there is mass abuse of the DMCA system.

Lumen is a project launched by the Berkman Klein Center for Internet & Society at Harvard University that was specifically designed to examine this problem. In their ongoing project, they looked at DMCA notices provided to Google for articles and found that between June 2019 and January 2022 there were 33,988 deliberate fraudulent attempts to misuse DMCA. 99.2% of these fraudulent attempts were unsuccessful, but there were still 300 successful fraudulent takedowns. Although Google's system is very good at identifying these fraudulent DMCA notices, just by the sheer number of attempts they have an impact on free speech on the internet. Additionally, there was no mention of any repercussions for the 99.2% of fraudulent DMCA notices.

Why DMCA abuse may have become more prevalent

It appears there are two motivations and scales of fraudulent DMCA claims. 1) Groups acting as large-scale operations trying to remove critical news articles. Lumen found that almost all the fraudulent DMCA notices examined were sent for articles relating to criminal allegations against powerful and wealthy individuals. 2) DMCA claims were a small-scale targeted attack on a specific blog, like Burgersburg’s blog.

For the latter claims, there may be ignorance about the consequences and the perceived minimal risk due to the lack of enforcement that has stimulated that form of abuse in the system. However, there is probably more that can be said about the impact of perceived online anonymity and the remote nature of the internet that leads to people perjuring through false DMCA strikes. Currently,  DMCA’s penalties of damages and lawyers’ fees do not seem to be a strong deterrent to fraudulent claims. Many people are like Burgersburg, they get these DMCA strikes and fight to get their content back up. But those that commit perjury through the DMCA notice rarely face any consequences.