Picture this somewhat typical scenario: Before breakfast, you use WordPress to write your morning blog post, which includes a screen shot of a movie you saw last night, along with your thoughts about the film. During your workday, a colleague shows you a viral YouTube parody of a popular music video (found via a Google search). On your lunch break, you shop for a new book on Amazon, which you buy after reading a few reader reviews that include short quotations from the book. After work, you take pictures of your Brooklyn loft replete with Obey art posters and post them to Airbnb, hoping to rent it out for the week you’re visiting family. At night, you catch up on an episode of Downton Abbey that you recorded to your DVR earlier in the week.

Whether you know it or not, each one of these activities is made possible by the legal term “fair use.” It’s an indispensable part of our lives, enabling many of the websites and services we use daily or depend on for our livelihoods. Fair use also happens to be an exception to content owner’s rights under copyright law.

By allowing limited use of copyrighted material for things like criticism, review, commentary, parody, or just personal non-commercial use, fair use has a widespread and often invisible impact on today’s social internet. Yet its very ubiquity means it’s often taken for granted by individuals – and the internet companies who benefit from it.

This is worrying because fair use is under threat, and one of the culprits is the DMCA takedown notice that provides copyright owners an easy tool to remove content they claim to be unlawfully posted. Copyright owners send these notices to web companies who host content; the companies must then remove the content or risk legal liability themselves. Meant to promote the quick removal of impermissible copyright infringement, the DMCA system works well in many cases.

Unfortunately, an increasing number of copyright holders misuse this system to target even lawful fair use of their work. And the current DMCA system enables these aggressive copyright owners by providing virtually no penalties for failing to consider common exceptions to infringement – like fair use.

Many times per week, WordPress.com receives such DMCA takedown notices that target what we can plainly see is fair use. An all too common example is a notice directed at a blogger who is criticizing a company or its products, and therefore using screenshots of the company’s website or a photo of the company’s wares in their post. This isn’t just an outlier case; given our unique vantage point, we see an alarming number of businesses attempt to use the DMCA takedown process to wipe criticism of their company off the internet.

#### Paul Sieminski ##### About Paul Sieminski is General Counsel of Automattic Inc., which operates the popular WordPress.com publishing platform. Prior to joining Automattic, he was a corporate attorney with the Silicon Valley law firm Gunderson Dettmer. In his role overseeing Automattic’s global legal affairs, including its copyright and DMCA policy, Sieminski has seen his fair share of bogus DMCA complaints.

What can someone on the receiving end of a fair use takedown do? One option is to challenge the removal of content by filing a “counter notice” with the internet company that removed the posting. Making this filing is a fairly easy thing to do, but few users actually go through with it.

In fact, Twitter reported in its most recent transparency report that it saw a 76% year-over-year increase in DMCA takedown demands: over 5,500 takedown notices were received over a six month period. But in that same time, Twitter received only six counter-notices challenging removal of content. One reason this number may be so low is that, in the process of submitting a counter notice, users are required to reveal their personal identity and agree to be sued in federal court.

The risk of being liable for large statutory damages (even if the infringement is minor) clearly daunts and sidelines an average individual user. The unfortunate result of this takedown notice power differential, however, is that a massive amount of content is being permanently removed from the internet. Even though much of it is lawfully and fairly used.

This is where internet companies have an opportunity to step in and do more to help, instead of just blindly honoring takedown notices. One obvious solution is education – not just for users but for DMCA complaint submitters too – about when fair use applies in the context of their sites.

Another issue is that it’s easy on many websites to submit a DCMA takedown notice, but not as easy to submit a DMCA counter notice for improperly targeted content. Addressing this disparity is another easy step companies can take since many users don’t understand how to navigate the process and certainly don’t want to (or can’t) spend money hiring a lawyer to help. On WordPress.com, where I work, we created a simple counter-notice form that’s both easy to find and complete. We also make an effort to carefully review inbound DMCA notices, and push back on the ones that clearly target fair use, so lawful content is not taken down in the first place.

Many internet companies enjoy the legal protections of the DMCA and the convenience of letting users be responsible for what they post. But this puts much of the burden of defending lawfully posted content on individual users. Users who post content to a company’s services are a constituency whose expression deserves to be protected. Until copyright laws change to provide some meaningful penalties for targeting fair use, internet companies need to be more active on copyright issues, serving as the first line of defense in protecting the fair uses of content that have helped to make their platforms so popular. Not to mention profitable, as fair use of content drives consumer demand for online information and services.

Fair use has also transformed the internet from a passive information library to an active, participatory, sharing web. People interact with information more meaningfully and passionately when they can transform it, review it, mash it up, and add their own individual perspectives to it – leading to a better internet for everyone (including copyright holders!). So let’s do what we can to make sure the fair-use doctrine that created this living and breathing entity is protected.

It's Copyright Week (leading up to the two-year anniversary of the SOPA blackout protests), where the EFF and others are discussing the key principles that should guide copyright policy.

Editor: Sonal Chokshi @smc90