General Counsel for Automattic, the company behind WordPress, has spoken today about how the DMCA process is being manipulated to stifle freedom of expression. During a House Judiciary Subcommittee hearing on the limitations of copyright liability for online service providers, the blogging platform called for "clear legal consequences" for those who abuse the system.

Although deceptively small considering its impact, Automattic is a company that touches hundreds of millions of Internet users every day. The company, best known for being behind the WordPress blogging and publishing platform, currently hosts more than 48 million sites on WordPress.com.

Servicing 400 million visitors accessing 13.1 billion pages each month is no mean feat, and with so much user-generated content on-board it’s obvious why the company has a keen interest in the DMCA and the protections it offers service providers.

Speaking today during a House Judiciary Subcommittee hearing on Section 512 of Title 17, Automattic General Counsel Paul Sieminski spoke about his company’s experiences with the notice and takedown provisions of the DMCA. Noting that the process works well overall, Sieminski said that shortcomings in the system negatively affect freedom of expression and adversly impact companies like Automattic.

Sieminski says that significant resources are being diverted away from product development at Automattic in order to deal with overbroad and abusive DMCA takedown notices. On the one hand the company wants to ensure freedom of speech, but balancing that with its legal commitments under the DMCA is not an easy task.

“At Automattic, we’ve seen an increasing amount of abuse of the DMCA’s takedown process. The DMCA’s takedown process provides what can be an easy avenue for censorship: simply send in a DMCA notice claiming copyrights in a piece of content that you don’t agree with. Regardless of whether you own the copyright, the service provider that hosts the content must take it down or risk being out of compliance with the DMCA,” the lawyer explained.

Sieminski went on to detail several cases where the DMCA had been abused to stifle speech, including one elaborate scam in which someone tried to undermine the work of science journalists by copying their work, backdating it, and claiming copyright in order to take down the original content. Although the journalists filed a counter-notice, it took the full 10 days mandated by the DMCA to get it put back online.

Another case involved a UK-based journalist who reported on a freely-given press statement. The source of the press release changed his mind on having it published, claimed copyright, and had the journalist’s work taken down under the DMCA. Concerned about submitting to the jurisdiction of a US court (those submitting a counter-notice are required to reveal their name and address and agree to be sued in federal court), the journalist chose to back down. His report remains censored to this day.

As reported here on TF on many occasions, wrongful DMCA notices are sent on a daily basis, many the product of automated systems that lack the finesse to correctly identify infringement, much less consider fair use situations. Add these notices to the millions already being sent and they often go undetected, taken down by nervous service providers wary of becoming liable for the infringements of others.

According to Automattic, a solution needs to be found.

“The DMCA system gives copyright holders a powerful and easy-to-use weapon: the unilateral right to issue a takedown notice that a website operator (like Automattic) must honor or risk legal liability,” Sieminski explained.

“The system works so long as copyright owners use this power in good faith. But too often they don’t, and there should be clear legal consequences for those who choose to abuse the system. I’d urge the Committee to add such penalties to the DMCA to deter and punish these types of abuses,” the lawyer concludes.