Copyright protects the intellectual property of creators—more specifically it protects original works of authorship that are fixed in a tangible medium of expression. Copyright owners have a bundle of exclusive rights in their protected works and they may exercise these rights to control who and under what conditions their work may be used or reused. In copyright law, the rights of copyright owners have often intersected with the rights of others regarding copyright as well as other legally protected rights, including trademark, right of publicity, and right of privacy. Recently, some issues have arisen over the intersection of copyright enforcement and censorship, in which subjects and/or rights holders of publicly available copyrighted works have sought to remove access to the works.
These issues have become seemingly more common with the emergence of the takedown procedure set forth in the Digital Millennium Copyright Act (DMCA). The DMCA provides a takedown process that allows rights holders to request the removal of their copyrighted materials that have been uploaded by users and hosted by online service providers such as YouTube, WordPress, or Tumblr. In the past month alone, Google has received DMCA takedown notices from 5,596 copyright owners requesting the removal of 39,829,891 URLS.
The DMCA takedown process makes removal of copyrighted material expeditious, and in many cases automatic (e.g., YouTube’s Content ID system), but when does the removal of infringing content align with the purpose of copyright law to “promote the Progress of Science and useful Arts,” and when does it cross the line into the realm of censorship? Here are some recent examples to consider:
- “Ugly” photograph. In Katz v. Chevaldina, a photograph was taken of businessman Raanan Katz, in which Mr. Katz can be seen with his tongue sticking out of his mouth. The photograph was described as “ugly” and “candid and embarrassing” by Mr. Katz. The photo was first published in an Israeli newspaper accompanying a favorable article discussing Mr. Katz’s potential ownership interest in an Israeli basketball team, before being republished several times by Irina Chevaldina on her blogs. The republished photos were sometimes accompanied by critical remarks or included in mocking cartoons. Following a request from Mr. Katz, the Israeli photographer who took the photo assigned his copyright to Mr. Katz free of any charge (Mr. Katz testified he had obtained the assignment “[b]ecause I wanted to stop this atrocity”). Following the assignment, Mr. Katz asked Ms. Chevaldina to remove the photos from her blogs. When Ms. Chevaldina refused, Mr. Katz filed a suit for copyright infringement. On balance, the district court found Ms. Chevaldina’s use of the photo to constitute a fair use, protecting her from liability. An appeal has been made to the Eleventh Circuit.
- Propaganda film. In 2011, Cindy Lee Garcia agreed to perform a minor role for Desert Warrior, an action thriller set in Arabia. Without her knowledge or consent, Ms. Garcia’s performance was then used in the creation of Innocence of Muslims, an anti-Islam propaganda video. Following the upload of the video to YouTube, Ms. Garcia received death threats for her involvement in the film. Ms. Garcia filed numerous DMCA takedown notices with Google, all of which were resisted, before seeking legal action to remove the video based on the claim that the posting of the video infringed her copyright in her individual performance. In May 2015, the Ninth Circuit affirmed an earlier decision by the district court and held that Ms. Garcia lacked a copyright interest in her 5-second performance, stating that “a weak copyright claim cannot justify censorship in the guise of authorship.”
- “Unauthorized” blog post. In 2013, student journalist Oliver Hotham reached out to Straight Pride UK, asking if he could send some questions for more information on the organization. The questions and corresponding answers were posted to Mr. Hotham’s WordPress blog and included comments from Nick Steiner, Straight Pride UK’s press officer, urging individuals to come out as straight and speaking of the need to raise awareness of heterosexuality and traditional lifestyles and relationships. On the same day the post was made, Mr. Hotham received a DMCA takedown notice. Mr. Hotham refused to remove the material from his blog and filed a counter-claim. Following legal action, Automattic, the company responsible for operating WordPress.com, was granted a motion for default judgement on their claim against Mr. Steiner for misrepresentation in filing a DMCA notice (17 USC 512(f)).  Automattic was awarded $25,084 in damages.
- Revenge porn. The emergence of revenge porn has also raised some questions around the role of copyright in removing online content. Typical revenge porn cases involve the nonconsensual public distribution of sexually explicit photos or videos, often released by a victim’s ex-partner. A majority of these videos and images are taken by the victims themselves. While some states have passed revenge law legislation or currently have laws in place broad enough to encompass revenge porn, many states leave victims with fewer legal options. Victims of revenge porn have pursued tort claims, including harassment, stalking, and invasion of privacy, but because most uploaded photos are taken by the victim themselves, a claim of copyright infringement has been suggested as an attractive option to facilitate the takedown of the material.
In situations where copyright is asserted to censor in order to achieve a positive societal result, is it enough that the ends justify the means? Or should these issues be viewed solely through the lens of the purpose of copyright law; to promote the progress of science and the useful arts? These types of issues will continue to arise as courts are asked to define the line between allowing copyright owners to exercise their legal rights and allowing copyright owners to use their legal interests to censor otherwise lawful conduct.
By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries
 Google Transparency Report. Requests to remove content: Due to copyright. Available at: https://www.google.com/transparencyreport/removals/copyright/ (last updated July 8, 2015).
 U.S. Constitution, Art. 1, Sec. 8, cl. 8.
 Compare the emphasis the European Union places on privacy versus the United States’ emphasis on the public’s right to know. In 2014, the Court of Justice for the European Union ruled that under the 1995 Data Protection Directive, individuals have a right to be forgotten under certain circumstances. Individuals may exercise this right by asking search engines (including U.S. search engines with a branch or subsidiary in an EU Member State) to remove inaccurate, inadequate, irrelevant, or excessive personal information. The court ruled, however, that the right to be forgotten would be balanced against the freedom of the media and the freedom of expression. Individuals have since exercised this right to be forgotten, requesting Google to remove links to revenge porn. See The Economist (Oct. 4, 2014). The right to be forgotten: Drawing the line. Retrieved from http://www.economist.com/news/international/21621804-google-grapples-consequences-controversial-ruling-boundary-between.
 Katz v. Chevaldina, 12-22211-CIV-KING/MCALILEY, 2014 U.S. Dist. LEXIS 88085 (S.D. Fla. 2014).
 Cindy Lee Garcia v. Google, Inc., D.C. No. 2:12-cv-08315-MWF-VBK (9th Cir. 2015) (en banc).
 Automattic, Inc., et. Al., v. Nick Steiner, 2014 U.S. Dist. LEXIS 182295 (N.D. Cal., Oct. 6, 2014).
 Cyber Civil Rights Initiative (Sept. 10, 2013). Proposed CA Bill Would Fail to Protect up to 80% of Revenge Porn Victims [Press release]. Retrieved from http://www.cybercivilrights.org/press_releases.