Stop the presses! WordPress smote an abuser of the DMCA takedown process to the tune of a $25,000 judgment. This view represents the general theme of most stories on the lawsuit. There is just one problem. The WordPress “victory” isn’t what it seems and suggesting it will somehow curtail DMCA takedown abuses is laughable.
The Alleged Abuse
We travel to merry old England to delve into the facts of this one. There we find a slightly controversial group known as “Straight Pride UK”. The group suggests homosexuals are engaged in a campaign to silence heterosexuals, a program Straight Pride UK apparently is seeking to subvert.
Oliver Hotham, a student, contacted Straight Pride UK seeking an interview. Through an exchange of emails, he received a “press release” from the group. Hotham then used the information in the press release to create an article and posted it on a WordPress hosted site. The article did not portray the group in a positive light. Straight Pride responded by filing a DMCA takedown notice with the DMCA agent for WordPress claiming the use of the press release information constituted infringement.
WordPress refused to comply with the takedown demand. It correctly noted the publishing of such content was not an infringement of copyright if for no other reason than it constituted fair use. Straight Pride UK had no valid legal foundation to stand on in the claim. Any jury would laugh them out of the courtroom.
The DMCA Abuse Lawsuit
According to Automattic, the company behind WordPress, the DMCA abuse just became too much. The company decided to pony up the financial resources necessary to take a legal stand against Straight Pride UK. WordPress based its lawsuit on section 512(f) of the DMCA:
(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any 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, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
The key language is “knowingly materially misrepresents” in the first sentence of the provision. This language is very difficult to prove in a court of law. The problem is one must show the defendant’s state of mind in serving the takedown notice. Did the person filing the takedown notice do so maliciously or just mistakenly fail to realize there was no legitimate claim?
The only person who knows is the defendant. Shockingly, they usually testify they “aren’t lawyers” and didn’t understand the copyright law distinctions when doing the filing. While they might have been wrong to file the claim, they only acted negligently. A finding of negligence is insufficient to support a DMCA abuse claim.
WordPress Wins…Sort Of
Ah, but WordPress was able to prevail in the Straight Pride UK case – it’s all over the web. Yes, in a technical sense, but no in a more practical sense.
WordPress prevailed in the Straight Pride UK case for a simple reason. It filed the case in the United States and the relevant member of Straight Pride never responded to the case or appeared in court. The “victory” is based on the judge being presented only one side of the story – the version argued by WordPress. The judge never heard a peep from the defendant because they were not present. Any lawyer who can’t win a case where the other party doesn’t appear in court should lose their license to practice law.
The particularly unusual thing about the decision of the court to award a default judgment is the appellate court would almost certainly overturn the decision on an appeal. One has to ask how exactly the judge in the case determined the Straight Pride defendant “knowingly” materially misrepresented the infringement in this case as required by Section 512(f). The judge heard no testimony from that individual, and most likely drew the conclusion from the information in the press release – an exceedingly weak legal position. The truth of the matter is WordPress will never recover a dime on this case.
Don’t get me wrong. DMCA abuse is a major problem. The lack of practical accountability for parties making abusive claims is a major flaw in the law. The solution to fixing the abuse is for Congress to modify the law to provide stronger hurdles to abuse.
WordPress is certainly within its rights to pursue DMCA abusers. We should applaud it for doing so in this case, in particular. It is a mistake, however, to draw any sweeping conclusions from “the victory.” The default judgment is no more valuable than the $40 million dollar default judgments AOL used to obtain against the business entities of spammers. You know – the spammer LLCs with no assets that AOL never recovered a dollar from despite the large judgments that made for such good press.
Richard A. Chapo, Esq.