Desperate, Renee reached out to an acquaintance at the company, who assured her the photos would come down faster if they were reported for copyright instead of harassment. So Renee filed a complaint to Twitter under the Digital Millennium Copyright Act.
Unfortunately, Renee didn’t realize that DMCA complaints are forwarded on to the people that they complain about. And Renee’s complaint included her phone number, email and home address — which Twitter had just effectively handed out to her stalkers.
“Was DMCA the best option [to get the photos removed]? Obviously not,” Renee said. “But when you’re a mom who just wants to get a picture of her baby off the Internet, then yeah, DMCA seems like a great f—ing option.”
In recent years, it’s become increasingly common for legal commentators and advocates to suggest harassment victims file copyright claims to address certain types of online harassment. In fact, a cottage industry has sprung up with the sole purpose of filing DMCA notices on behalf of harassment victims.
But as Renee’s case — first reported by Business Insider — clearly demonstrates, copyright provisions still make a poor substitute for laws and corporate policies that specifically protect victims of online harassment and stalking. And, in fact, in some cases, a reliance on the DMCA may prevent platforms from examining flaws in their own safety policies.
“This isn’t a copyright issue or a violation of ownership in images,” said Caroline Sinders, a user researcher who lectures widely on online abuse. “It’s a sustained digital stalking issue — and those are really different things.”
Copyright first emerged as a solution in these kinds of cases because most online service providers, as a rule, take copyright complaints far more seriously than they do harassment reports. Thanks to the DMCA, companies, such as Twitter or Facebook, can be held financially liable if they don’t comply with a valid copyright takedown request. (There is no such built-in enforcement mechanism when it comes to harassment.) On top of that, it’s easy and cheap to file a DMCA notice: You don’t necessarily have to hire a lawyer or take anyone to court.
That said, the law applies to a narrower slice of content than some DMCA takedown firms would have you believe.
You must have taken the photo yourself, for instance; photos in which you merely appear do not count, unless the photographer transferred copyright ownership explicitly. On top of that, it’s a matter of debate whether the DMCA applies to sites hosted outside the United States. Which means you might have luck filing a DMCA with Twitter for the takedown of your private pictures … but not with, say, some jerk’s personal blog.
There’s also this issue of anonymity and privacy in DMCA takedown notices, which Renee ran up against. You can have someone else file a notice on your behalf, but the law does not require that sites, such as Twitter, tell you that. They also do not have to specify exactly what will happen to the person you file the claim against, or what information will be forwarded to him. Twitter’s form says, vaguely, that it “may provide third parties, such as Lumen and the affected user, with a copy of this complaint.” (In a statement, a Twitter spokesman said that the company “strongly discourage[s] users from using DMCA for non-copyright purposes” and warns that notices are public.)
Meanwhile, if you’re on the receiving end of a DMCA takedown notice, you may not use an agent or proxy to file a counter-notice. Which is very problematic when a stalker is, say, filing bogus notices against you in order to get your address.
“No system will ever be able to stop all abuse,” said Jennifer Urban, a professor of law at the University of California in Berkeley who studies the DMCA. “But it should take into account this kind of abuse and improve procedures to avoid it. It’s a challenge and a balance, because as a matter of legal process, people in a dispute need to be able to know who their accusers are and what the claims are. But agents, proxies, etc. are possibilities if done correctly.”
In hindsight, Renee wishes that Twitter would have made the proxy option clearer. But mostly, she wishes she didn’t have to file the DMCA takedown request at all. As she points out, the only reason for a victim to resort to copyright is when other systems have failed them.
Sinders, the user researcher, agrees: No matter how expedient it may seem, she argues, the DMCA makes an inadequate solution for harassment — particularly when someone at the site itself suggests it.
“You hire product designers from Stanford,” she said. “You can’t do better than this?”
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