The Chilling Effects of Copyright Takedowns

Interview with Wendy Seltzer

This is a transcribed and edited interview with Wendy Seltzer. It was recorded for the NetPosi podcast at the 2015 Freedom2Innovate conference at MIT in Boston, Massachusetts. You can listen to full audio here.

UPDATE: Since this interview, Chilling Effects has changed name to Lumen Database.

Wendy: We started Chilling Effects a decade ago looking at how to preserve the climate for free expression online. We were concerned that people were getting letters and taking down blog posts, websites, and search results because they feared the legal consequence. More than that they knew what they were doing was lawful or unlawful. By posting letters and creating a space for discussion and analysis, we could give people a better understanding of the law and legal background. And where warranted, we could give them enough understanding to defend their rights to keep the material online.

Drew: Tell me a little about yourself. What’s your background?

Wendy: I’m a lawyer. I’ve done a mix of litigation, academic work, and currently working in technology with the world wide web consortium.

Drew: What’s your role with the world wide web consortium?

Wendy: I lead the Technology in Society domain. So that is entirely separate from my work with Chilling Effects. There we are looking at how can we improve the open web platform through standards. Currently a very strong interest is: how can we improve security and privacy? And, how can we use standards to elevate the level of security and privacy of web? How can we improve the platform and help people’s interactions with it and open it to be better secure and more under user control?

Drew: What are the tactics that you normally use in your activism?

Wendy: Well, I started as a litigator with a focus in intellectual property and technology issues. I think part of the early course was set when I came across open source licensing and free software and looked at things like GPL that were turning the use of copyright on its head to say let’s use licensing to enforce openness. Some early developments lead to creative commons licensing. Can we do this to culture as the free software foundation has done so successful for software? Setting up alternatives and giving people a label for the work they were spreading and a licensing means to say, enforceably, “I want this to be open and shareable”. So, looking at the seeming contradictions between intellectual property, closure, openness, open innovation, and the sharing culture. But also the creativity that builds upon that. And that didn’t ask for the restrictions of copyright, but asked to be freed from copyright. That really set my course into tech policy. I was starting to think, okay I bring a set of tools from the legal background. I studied from Lawrence Lessig. I thought a lot about code as law and law as code. How did the two shape one another and how can we use these tools to preserve the open environment. So, now at W3C, it’s the open web platform. How do we help code interpretability and create a platform that persists as a mode for free expression innovation.

Drew: What’s the connection between creating content and content licenses?

Wendy: There’s a piece of work that is recognizing the range of creative efforts and leaving space for a variety of engagements. And nothing that Chilling Effects is doing is condoning or promoting copyright infringement. It is helping people to recognize the range of activities that are not copyright infringement but that might be called infringing. The right line there is to recognize that not every use of copyright material is an infringement. It might be a fair use, a functional use, or a parody and therefore not infringing. Somebody who takes a takedown, even if it’s sites or copying of a copyrighted work, that’s not the end of the analysis. Yet, a key piece of creativity and participating in a cultural conversation is that ability to cite other materials. It’s preserving the opportunity to engage in the conversation. That’s very important there. Chilling Effects is aiming to set up a database and source for academic research for the notices and the takedown regime and other sources of online expression of takedown. So, we want to encourage science and people to analyze what’s actually happening on the net and how is that playing out? Are the laws being used mostly correctly and stopping people who would otherwise be infringing copyright and disseminating copyrighted work without paying? Or are they at the same time also being used to stifle parodies and creative expression and creative competition to established copyright holders. How might we tailor the law to be more restricted to violations? How might we make it less chilling for people to be engaged in legitimate activity. How do we preserve the opportunity to report on the consequences of the law by opening up transparency reporting around how the law is being used? So, one of our current projects is to make the Chilling Effects projects more international and to gather a wider range of data about content posting and content takedown. We already gather things like the restricted contact takedowns from Twitter where in response to different jurisdictional laws they’ll remove material from specific country feeds or views, leaving it available from other countries.

Drew: Could you explain that a little more? So, how does that work? If someone is a user, and they put content online, what happens there with Twitter? Could you explain that more?

Wendy: Twitter, as you post short messages, there are different speech rules in different parts of the world. The United States has very liberal speech law based on our First Amendment protections for the right to say anything as long as is not defamatory or criminal law infringement, with a few restrictions. Whereas, France has laws about hate speech that are different. Turkey has their own regime has lately been trying to restrict a lot of commentary and publicizing of information. So, Twitter, as a company doing business in lots of different countries, has developed the country-wide content mechanism to remove material from individual country access. They’ve actually done a reasonable job of that in that they also allow you to, in your own personal settings, let Twitter know if they’ve gotten your country wrong and you want to be able to see a different set of content, you can change the country. You can change the country with which you are identified.

Drew: So, with Chilling Effects, how do you track that?

Wendy: We receive the takedown notices that they’ve gotten.

Drew: From the users who saw it? Or how does that work?

Wendy: Most of our notices are coming from the platforms. So, twitter sends the notices that they receive with appropriate redactions so that we are not receiving and publishing people’s personal information. We get the set of notices and court orders and other content removal demands that they’ve gotten and put that into the Chilling Effects database where both individuals wondering, “ why was this tweet removed?” and journalist wondering “why was this set of tweets removed?” and academics wondering “what’s the climate for online speech in Turkey, in Russia, or in the United States?”

Drew: And what are some of the things that people have found using chilling affects? Researchers who have looked at the data or journalist. Are there particular things that come out of collecting this data?

Wendy: Well, the one set of findings is around over-broad takedowns. The notices to Google to request removal of everything would “eclipse” in the name from a movie studio who released an “eclipse” movie. They ended up taking down clips from NASA showing a solar eclipse, not quite a copyright infringement. So those are things we are abusing. More sort of consequently, I was approached by a Pakistani activist who said that she had, by looking at the takedown notice that was reported in Chilling Effects on some Pakistani content, recognized that that was invalid under Pakistani law and was able to go back to the regulator and complain that this material should not have been removed and get it reinstated. So, directly opening up the speech. We are working now to make more API’s available to data researchers to do broader statistical studies of the kinds of takedowns that are being instituted and comparative work. I would like to invite more researchers into that data, to invite more providers to contribute. I think it’s becoming a key part of running a platform is that you are transparent with your readers and users about the content they’ll find there and what rules are shaping the content that’s visible. Are the dialogs being shaped by what users choose to post or are they also being shaped by what some legal complaint is causing to be removed from the forum. So, that opens up an avenue for readers to challenge the takedown, to challenge the legal rules, if they are in a democratic country to agitate for change and to mobilize.

Drew: What are your hopes and dreams for Chilling Effects or for content in general? If you could wave a magic wand, and have one thing related to this work change, what would you choose?

Wendy: I love answering that question at the Freedom2Innovate conference because I think it’s changing our thinking from negative rights to do something into affirmative freedom to express and connect and communicate. Let’s examine all of the different forces that can restrict our freedoms to communicate and to hear what others are trying to communicate. Preserve, maintain, and extend the real distributed communications networks that we’ve built with the web and that we’ve built with the Internet. Let’s help that to empower more people.

Again, since recording this interview Chilling Effects has a new name: Lumen Database. You can submit takedown notices and engage with data collected in the database at LumenDatabase.org. You can writing and work from Wendy Seltzer at wendy.seltzer.org and she’s on twitter at @wseltzer.

This is interview is originally from @NetPosi, a podcast about activism and technology. You can listen to the full interview and you if you want to hear more interviews like this you can subscribe using iTunes, Soundcloud,or by email on netposi.com.