WordPress.com parent company Automattic and two WordPress users have sued two defendants who attempted to use American copyright law to remove online speech critical of their actions.

In a pair of lawsuits filed Thursday in the Northern District of California, Automattic cites a provision of the Digital Millennium Copyright Act (DMCA) that requires copyright owners to pay damages when overreaching on copyright claims. However, as we’ve reported before, it’s pretty tough to get damages paid under Section 512(f).

Many have noted (including Ars founder Ken Fisher a decade ago) that the DMCA’s notice-and-takedown provision practically encourages an overzealous response from those who claim copyright ownership. Still, in these new cases involving Automattic, the plaintiffs argue that the defendants are not the actual copyright owners. And under the DMCA, the recipient of the notice is required to quickly take down the alleged offending content before it can investigate whether the claim is legitimate.

Copyright guru and well-known law professor Lawrence Lessig brought a similar suit earlier this year under 512(f). And the Electronic Frontier Foundation is representing the woman behind the famous “dancing baby” YouTube video. Both cases are still pending.

“Unfortunately, the reason why we’re bringing the test cases is that we see these frequently and in increasing number,” Paul Sieminski, the general counsel of Automattic, told Ars. “People are getting more bold in the tactics that we’re seeing.”

He said that his office has fielded “hundreds of DMCA cases per month since the beginning of WordPress.com,” referring to the company that hosts WordPress blogs but does not own the popular open-source platform.

Straight edge

The first case (Automattic Inc. and Oliver Hotham v. Nick Steiner, PDF) involves a journalist from the United Kingdom.

The case begins in July 2013, when Hotham, identifying himself as a journalist, wrote to a British advocacy group called “Straight Pride UK” and asked some questions about the group’s goals and motivations.

A Straight Pride UK press officer named Nick Steiner eventually responded to the query, and Hotham posted some of the answers on his blog. By early August 2013, Steiner e-mailed both Automattic and Hotham with a DMCA takedown notice.

Steiner wrote:

User http://oliverhotham.wordpress.com did not have my permission to reproduce this content on WordPress.com or Twitter account or tweets, no mention of material being published was made in communications” and that “it is of good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law” (the “Misrepresentations”).

A mystery from India

The second suit (Automattic Inc. and Retraction Watch LLC v. Narendra Chatwal, PDF) involves a slightly more devious situation.

Retraction Watch is a well-known website in the science and science journalism community, which, as the name implies, is focused on retractions and corrections in science and medical journals.

On October 5, 2012, the editors behind Retraction Watch published a blog post involving a scientist named Anil Potti. The site wrote about Potti being the subject of a number of retractions.

But by February 2013, the plaintiffs claim, Chatwal copied 10 posts off Retraction Watch, re-publishing them at NewsBulet.in. That domain was just one letter off from a different, legitimate site, NewsBullet.in. (Later, Potti wrote to Retraction Watch, saying that the DMCA notice was not filed by him or filed on his behalf.)

Chatwal next filed a DMCA notice, claiming, "Recently we found that some one had copied our material from the category Medical Reviews and published them on their site. So we request you to help us in protecting our content and copy right."

While that blog post was later restored once Retraction Watch filed a counter-notification, the site claimed that it “expended staff time and resources in corresponding with Automattic about the Takedown Notice and addressing issues that resulted from the Takedown Notice. Retraction Watch also suffered harm in that its reporting on a matter of legitimate and substantial public concern was silenced, albeit temporarily, as a result of the misrepresentations in the Takedown Notice.”

Dr. Ivan Oransky, a co-founder of Retraction Watch, told Ars that the site has only received the single set of DMCA notices concerning the Potti affair.

"We hope the lawsuit makes it clear to anyone planning to try to use the DMCA to squelch inconvenient news that there can be sanctions for filing false claims," he wrote by e-mail. "Bloggers and others who publish accurate critical journalism shouldn't have to be afraid of being shut down by nonsensical allegations that they've violated someone's copyright."

Both suits seek damages and attorneys’ fees. Neither Steiner nor Chatwal immediately responded to Ars’ request for comment.

Good luck with that

Seeing as Steiner and Chatwal are outside the United States—in the United Kingdom and India, respectively—it may be very difficult to actually serve them with the lawsuits, much less collect money from them.

“Practically speaking, [their being abroad] will matter in terms of serving them and getting a judgment against them,” Sieminski, Automattic’s counsel, told Ars.

“It could take a couple of months. It’s not 100 percent clear, but because they sent the notice to the US, we thought we could rely on [federal] law to [respond]. If we do get a judgment, it would be pretty tough to actually collect anything. It isn’t really the point, though—there’s nothing else you can do under current law.”