The DMCA in Action:

Copyright Law, Algorithmic

Censorship, and Free Speech
in the Internet Age
Brian Vogel

3/14/2022
INTRODUCTION

In 1998, during the infancy of the internet, Congress began holding legislative sessions

and committee meetings to construct the legal mechanisms necessary to regulate this brave new

technology. One of the largest questions posed to the legislature was related to the liability of

copyright infringing content on online spaces mediated by a third party. Online content never

exists purely independently – a content-hosting platform is required to broadcast content through

the world wide web. This left an important question of legal responsibility: if someone illegally

posts copyrighted material, who is to become liable? The individual user who illegally posted

copyrighted intellectual property, or the third-party content hosting platform that disseminates

the infringing material? To answer this question, Congress established the Digital Millennium

Copyright Act (DMCA), an act that established the modern interface of legal structures that

governs legality in online spaces to this day.

The DMCA lays out a series of hoops that content hosting platforms and users are

required to jump-through in order to discern liability. The user is liable for copyright infringing

material, but rather than immediate litigation, the remedy is for third party platforms to

de-platforming the infringing material. This de-platforming is carried out by the content-hosting

platform on behalf of the copyright holder, but these platforms have not escaped liability. If they

refuse to take down any claimed material, these platforms then take on the liability for any

copyright infringement, should the justice system decide if such infringement occurred. This fear

of liability has incentivized platforms to wield content-removing tools with absolute and

unchecked restraint, using automated filtering algorithms to remove all content with even the

prospect of copyright liability, often without the instruction of the Internet Protocol (I.P.). holder.

This has empowered some bad-faith actors to abuse this system. This abuse comes in two forms:
reporting copyrighted material for a purpose other than remedying the copyright misuse, or

claiming legal material as copyrighted, knowing that platforms will remove the content without

doing due-diligence. Indeed, no such requirement for due-diligence exists in the DMCA, giving

content hosting platforms all-powerful control over what types of online speech are “legal” or

“illegal”.

In the Trump era, when concerns over the truth and validity of what is said online became

a well-known concern, the phenomenon of DMCA abuse became somewhat mainstream. I aim

to investigate how the DMCA differs in intention from execution with regards to freedom of

speech online. The particular angle this investigation seeks to tackle is related to the

mechanization of DMCA claim management through algorithms. Too much content is posted

each and every day for a human to analyze and verify that it is copyright compliant, so platforms

employ algorithms to automatically filter content based on broad, indiscriminate criteria. The use

and effect of these algorithms were a total blindspot of the DMCA, and their use has radically

altered what is allowed to be said on the internet. I therefore sought to examine: How were

copyright-law algorithms for content-hosting platforms exploited to control speech online

between 2016-2020?

ANALYSIS

SECTION I

[omitted from condensed version]

SECTION II

Between the years 2016 and 2020, when the political climate was ripe for mistrusting any

information disseminated online, the ways in which the DMCA was used as a tool to silence

internet-based content became thrust into the spotlight. Much has been written of the DMCA’s
potential to economically harm online content creators, but comparatively little has been written

about how the very same law can be exploited to politically harm an individual.

Algorithms are pieces of code that are used to carry out a specific function1. Their use is

varied, but where the DMCA is concerned, algorithms are used to recognize patterns on a

volume incapable of individual human examination2. These content hosting platforms see

incalculable amounts of content uploaded each day, which raises a problem with regards to being

DMCA compliant. According to DMCA Section 512, a content hosting platform is liable to be

sued for copyright infringement if they maintain the infringing content on their platform after a

claim has been filed by the holder of the copyright. Because of the sheer volume of content, it is

impossible for groups of people to comb through all of the content and manually identify

copyrighted material3. The platforms therefore employ algorithms to flag copyrighted material

and remove it in order to avoid liability4. This system has two main problems however: first, the

pattern recognition of these algorithms cannot match human pattern recognition, which leads to

DMCA-compliant content being filtered out on account of overzealous algorithms protecting the

platform. Second, in order to minimize red tape and liability and maximize efficiency,

copyrighted content is removed without the consultation of the holder of the copyright.

One of the through-lines in the presented examples is overzealous claiming of material

via algorithms with little to no human oversight. Three of the five examples below deal with

copyright claims that removed content that would have been deemed acceptable if a nuanced and

1
Xiaoqiang Ma, Jiangchuan Liu, and Hongbo Jiang, “On the Design of Algorithms for Mobile Multimedia Systems: A
Survey,” International Journal of Communication Systems 24, no. 10 (October 2011): 1330–39.
2
Niva Elkin-Koren, "Contesting Algorithms: Restoring the Public Interest in Content Filtering by Artificial
Intelligence," Big Data & Society 7, no. 2 (2020).
3
Joel D. Matteson, "Unfair Misuse: How Section 512 of the DMCA Allows Abuse of the Copyright Fair Use Doctrine
and How to Fix It," Santa Clara High Technology Law Journal 35, no. 2 (November 2018): 1-22.
4
Nighat Mir, “Copyright for Web Content Using Invisible Text Watermarking,” Computers in Human Behavior no. 30
(January 2014): 648–53.
properly-discerning human actor was to have considered the validity of these claims instead of

an algorithm, whose only job is to automatically protect corporate interests. The absence of the

intervention of a copyright holder makes the actions of these algorithms all the more egregious –

since an algorithm cannot manually prove the person filing the complaint is the valid copyright

holder, any claim – no matter how spurious – is treated as a valid concern, even if that is not the

case. Both examples one and three are valid and protected forms of speech whose objector was

not the copyright holder for the material called into question, but an unrelated third party. The

algorithm therefore empowers neither the copyright holder nor the consumer, but instead

empowers any bad-faith actor unscrupulous enough to exploit this system.

This system is ripe for exploitation because the DMCA offers little to no consumer

protections. Platforms are free to utilize algorithms to censor content without the interest of the

content creator nor the copyright holder, only the interest of the platform. The ability for the

DMCA to create exploitable systems of algorithmic enforcement has undoubtedly exposed the

DMCA’s shortcomings, which can be interrogated through the following examples:

Example 1: Officer James Knoblauch, a police officer in Oglesby, Illinois, was attempting to

make an arrest at an office in LaSalle County. A civilian began to record the officer on her

phone, and when Knoblauch turned around and noticed he was being filmed, he immediately

pulled out his phone and began to play a Blake Shelton song at full volume in an attempt to

trigger copyright detecting algorithms to keep the video of the arrest from being uploaded

online.5

The noteworthy aspects of this example include the degree of knowledge exhibited by the

actors, the absence of the intervention of a copyright holder, and the hierarchies present in this

5
Tim Cushing, "Officer Claims Sheriff's Office Told Him To Play Copyrighted Music To Shut Down Citizens'
Recording,". Newstex Blogs Techdirt. September 13, 2021 
situation. First, this case is noteworthy in that all parties involved (the person under arrest not

included) were aware of how copyright-filtering algorithms currently operate. The officer knew

how these algorithms could be exploited, and the person recording the officer vocally calls out

this deliberate tactic in the video footage. This is indicative of how widespread this phenomenon

actually is, and its media coverage is only giving more ammunition to those with similar jobs and

incentives. Second, the copyright holder is not present anywhere in the incident. Blake Shelton

and his publisher, Universal Music Group, never filed a copyright claim against the video, and

yet it was claimed and taken down. There is a possibility that the use of his song as a tool of

suppressing police accountability may be against the interest of the copyright holder, but those

interests were never taken into account. The final noteworthy aspect is that this incident exposes

how the DMCA and the algorithms that uphold it can be used to reinforce hierarchies. Law

enforcement being held above the common citizen, the use of an internet copyright law to

maintain such a hierarchy is a pointed example of how these systems are codified into law in

unexpected ways.

Example 2: In 2017, famous YouTube star PewDiePie released a stream of himself playing video

games wherein he made several racist insults and casual pro-Nazi jokes. Members of the

audience who were offended by such comments attempted to get the video taken down on the

grounds that it violated YouTube’s guidelines regarding harassment and hate speech. When no

remedy to this complaint materialized, the same people reported the video for copyright misuse,

which led to the video being taken down almost immediately, and landing PewDiePie in a

lengthy YouTube suspension 6

6
Mona Ibrahim, “Firewatch Creators can Target PewDiePie with DMCA Takedowns, and it’s Perfectly Legal” Polygon
(Sep 17, 2017)
 This example is interesting in that the relatively positive outcome of the story also serves

as an example as to why the systems relied upon to achieve this outcome are worrying. The

DMCA was utilized in preventing the proliferation of hate speech – it is a clear example of those

with less power (the audience) leveraging the legal system to hold a party with a considerable

amount of power (the wealthy YouTube star) to account. What is troubling is that copyright

liability was the only incentive taken into account by the platform. It is an unfortunate example

about the priorities of content hosting spaces like YouTube: harassment, hate speech, and

violations of community guidelines were met with apathy, while the only complaint these

platforms are willing to take seriously are those revolving around copyright and the DMCA. It is

a clear value-judgment on the part of the law and the platforms that copyright liability is a

priority over the health and safety of their user base.

It’s also an example of algorithmic abuse. The copyright claim immediately triggered a

takedown algorithm, but after a several month battle, the content was evaluated to fall within the

“fair use” guideline of the DMCA, denoting the copyright claim as having been made in bad

faith7. Hate speech is something that is tied to moral and social values, a concept that is

challenging for an algorithm to recognize. No such value judgment needs to be made for

copyrighted material however, especially when the legal security of a company is on the line.

This example shows that human resources need only be employed when non-legal issues arise,

such as those of harassment, but no human resources are needed in cases concerning the DMCA.

The implications for algorithms and algorithmic censorship online in relation to free

speech are of foremost importance. As established in section one, the very existence of

7
The “Fair Use” determination is a process that requires human intervention, given that it relies on pattern
recognition not currently available in modern algorithm technology. When evaluating a subject for fair use, the
platform needs to determine if the alleged infringing material is suitably “transformative” in relation to the original
work, common examples being parody, education, and criticism.
content-filtration algorithms was never imagined by the authors of the DMCA because their

scope for internet use was so limited. But the question remains as to whether the implementation

of these algorithms was inevitable, or if the constraints and expectations established by the

DMCA propelled their widespread adoption. This analysis concludes that it is the latter. This is

because the DMCA elevates the power of the Section 512 “notice and takedown” feature of the

law above protections for the content creator by legally mandating Section 512, but only legally

suggesting consumer protections. There are a few key consumer protections built into the

DMCA, such as the “fair use” protection, which defends consumers from copyright infringement

if their content is suitably transformative from the original material. However, the way the

DMCA allocates legal penalties in such a lopsided way makes this nearly irrelevant in the face of

algorithmic content filtration. YouTube or Facebook face consequences for hosting copyright

content, but do NOT face consequences for removing content, regardless of fair use or the

established precedents surrounding freedom of speech. This incentivizes harsh censorship that

can be carried out by unfeeling, uncaring machines.

Example 3: In 2020, a Black Lives Matter protest held in Douglas County, Nevada was being

live-streamed as a way to drum up support for the ongoing movement. Protesters numbered

approximately 30-40 people, but counter protesters numbered in the hundreds. As the protest

march proceeded into the streets lined with counter protesters, members of the counterprotest

began to blast country music, and within minutes the livestream was terminated prematurely due

to copyright infringement8

This example is consistent with the hierarchical evaluation presented in example one, but

also illustrates a clear divide between freedom of speech on and offline. In this scenario, both

8
Kelly Penrose, “BLM Protest in Douglas County Draws Hundreds of Counter-protestors, Militia” Sierra Nevada Ally,
(Aug 9, 2020)
protestor and counter-protestor are entitled to a right to assemble and express their freedom of

speech, but those rights are no longer represented when this speech becomes digitized into its

online form. This is consistent with Marceau and Chen’s legal analysis of how the DMCA

inconsistently holds freedom of speech to a different standard online than off.9 The algorithmic

regulation is also noteworthy in this case because the ability of censorship to occur in real time.

The ability to enforce a DMCA copyright ban was immediately effectuated during a live stream

– this is not a case where a piece of content was removed following its completion and posting, it

was censored mid-creation, giving platform filtration algorithms the power to immediately

censor speech in a chilling way. A piece of speech cannot be challenged in its entirety, but can be

challenged before the completion of the speech based on alleged copyright misuse that was

determined by an inhuman mechanism

Example 4: In 2016, a London-based children’s charity posted a negative review of construction

company BuildFirm on a review forum called Mumsnet. Several days after posting the negative

review, Google sent Mumsnet a notice and takedown order that her negative comment had been

removed for violating DMCA policy. No copyright infringement had occurred. Instead, the

review was copied verbatim into a separate web page entirely, which then retroactively

copyrighted the bad review’s exact language in order to trigger the review as being flaggable for

copyright misuse. It would later come out that employees of Buildfirm had done this maneuver

deliberately. Google rejected the counterclaim by Mumsnet, and the review thread was removed

entirely.10

9
Justin Marceau and Alan K. Chen, “Free Speech and Democracy in the Video Age,” Columbia Law
Review 116, no. 4 (2016): 991–1062; Their analysis is a legal exercise by which they take court precedent
for various free speech cases and apply the given precedent to an online space, exposing how speech
online does not align with constitutional law set about by the First Amendment
10
Alex Hern, “Revealed: How Copyright Law is Being Misused to Remove Material from the Internet” The Guardian
(May 23, 2016)
 The implications for this particular example are threefold. The first implication is one of

internationality and the consequences of the DMCA on a global stage. Despite the United

Kingdom having entirely separate copyright jurisdiction than the United States, Google – the

company who hosts Mumsnet – is an American company, and is thus subject to regulation by the

DMCA, and American law. This essentially makes a huge section of the internet the legal

domain of the United States, giving the U.S. unprecedented authority to control the flow of

information on a global scale. The second implications of this case-study concern corporate and

economic sabotage. The DMCA was not only used to limit the free speech of the charity in

question, but it was done so with an economic motivation in mind. The BuildFirm scheme to

copyright a bad review and use that as the basis for a DMCA claim was directly motivated by

BuildFirm’s bottom line. In the internet age when a bad review carries weight for the future

success of a business, the freedom of speech of the actors involved is no longer an abstract

political idea, but an economic force that poses a threat to certain companies.

Another implication is centered on the lack of due-diligence on the part of Google, and

the lack of consequences for this mistreatment of internet-users. The remedy for an illegitimate

DMCA takedown is known as a counterclaim – a feature whereby the injured party can protest

against the filtration of their content by filing a complaint to the content-hosting platform11. The

ways in which these claims are handled varies from platform to platform, but because each

platform is a private company, the regulation of the counterclaim function is internal. There is no

external force that mandates counterclaims be taken seriously12. This gives content-hosting

11
Alan Gocha, "A Modern System for Resolving Online Copyright Infringement Disputes: Administrative
Rulemaking and adjudication, a One-Stop Fix to The Digital Millennium Copyright Act," IDEA: The Journal
of the Franklin Pierce Center for Intellectual Property, 58, no. 131 (2018). 
12
Wendy Setzer, "Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the
First Amendment," Harvard Journal of Law & Technology, 24, no. 171 (Fall, 2010).
companies no real incentive to take these claims seriously. If they accept the counterclaim as

valid in error, the platform becomes liable for copyright infringement, and verifying the validity

of a counterclaim can be a costly process because it cannot be easily managed by an algorithm.13

Therefore, the only incentive companies have to take counterclaims seriously is to ensure the

trust of their user base, which is not a strong incentive given the fact that most users will not

switch to a competing platform over this type of controversy. There is also a degree of

intersection between the first and third implication. The international nature of the incident

means that if an individual in a foreign country wanted to bring a platform to court over their

lack of due-diligence processing DMCA counterclaims, that remedy would not be available

because the DMCA would be a law in a completely separate country.

The nature of this exploitation is another key implication. The DMCA – not just its

algorithmic enforcers - is an incredibly exploitable law in a way that was not intended. Its

exploitability is partially due to the universality of the internet; the internet is a tool used by a

majority of people every single day, and that volume of use allows its user-base to become

familiar with its mechanisms fairly quickly and fairly intimately. Both officer Knobloch and

BuildFirm were so aware of the law’s driving Section 512 mechanism that they were able to

bend that mechanism to their own ends. Likewise, this controversy demonstrates that internet

users do not approach the DMCA with the same skepticism for the law as is ordinary. Law is

often regarded by a majority of the public as an arcane set of rules outside the scope of

knowledge for the average lay-person14, but this is not so with the DMCA. The governing

13
Zoe Carpou, "Robots, Pirates, and the Rise of the Automated Takedown Regime: Using the DMCA to
Fight Piracy and Protect End-Users," Columbia Journal of Law & the Arts 39, no. 4 (2016): 551-590
14
Justin Marceau and Alan K. Chen, “Free Speech and Democracy in the Video Age,” Columbia Law Review 116, no.
4 (2016):
mechanisms for a tool as important as the internet have made the widespread understanding of

the law ripe for exploitation.

The intent of the DMCA is also affirmed by the transnational influence of U.S copyright

law. This topic was arguably the most central ideal underpinning the DMCA. Congress was

looking for a way to make the U.S the dominant force in the new internet landscape, and the

system they devised whereby content-hosting platforms are the nexus for the legal viability of

online content made that ideal a reality. If anyone – regardless of location – wants to post

content, they need to be mediated by a U.S-based content hosting platform, and because the

DMCA regulates these platforms, it also regulates users across the globe.

Example 5: The Nicaraguan election of 2020 saw large protests against reigning President Daniel

Ortega. The state sponsored news media being unwilling to cover such protests, protesters turned

to independent and international journalism to spread the word about the protests. The Ortega

regime filed several false DMCA claims against reporting unsympathetic to his rule, falsely

claiming the reporting was copyright infringing, leading YouTube to remove all coverage of the

protest.15

This example is profoundly chilling in the way in which it demonstrates the power

transnational corporations have over international politics. This case demonstrates how the

abstraction of information through multiple mediums can disrupt the flow of information. The

message of the protest is communicated through journalists, who communicate their journalism

through content-hosting corporations like YouTube, who then broadcast that journalism through

telecommunications networks. If any link in this chain becomes disrupted, the availability of

information becomes compromised, and the fact that corporations with monied interests hold

15
Danae Vilchez, “YouTube Censors Independent Nicarguan News Outlets after Copyright Complaint from
Ortega-Owned Media,” Committee to Protect Journalists; (May 6, 2020)
these links establishes a system where information can only be disseminated if that information

is deemed profitable. Other noteworthy elements of this case include its international scale and

political implications. The example falls in line with the precedent set by Google v. Equustek,

demonstrating the intentional international reach of the DMCA – here though, the sovereign law

of one nation is being upheld by the sovereign law of the United States, rather than being

challenged16. The DMCA is therefore a political impediment, given its sweeping censorship

capabilities on a global scale.

The previous examples demonstrate the fulfillment of the DMCA’s intent in a somewhat

sinister way. The pre-eminence of U.S. law is undeniable: these are definitive cases where the

DMCA’s global reach is explicitly shown, but the context of that global reach is controversial. In

both cases, the international reach of the DMCA was wasn’t used to protect U.S. copyright

holders, but was instead used to attack some outside party, be it Mumsnet or independent

Nicaraguan journalists. The DMCA is not acting as a shield for U.S. markets on a global stage,

but is instead used as a weapon to control international internet use with laws that constrain

non-U. S. online action. This is a tightrope has yet to collapse, but remains precarious:

company’s suffer damage to their reputation when bad-faith DMCA claims exploit their

platforms, and because this is an international affair, the profit motivation to let this occur is

much weaker than a similar domestic infraction. These platforms are currently exchanging

international reputation for international control, but the future of this transaction is uncertain.

Finally, the implications with regards to the establishment of user rights are defined by

what rights each respective algorithm permits. The section two examples highlight that content

filtration platforms are highly sensitive to music and quoted text. User rights extend in so far as

16
Robert Diab, "Search Engines and Global Takedown Orders: Google v Equustek and the Future of Free
Speech Online," Osgoode Hall Law Journal 56, no. 2 (Winter 2019): 231-270
they can avoid these easily flagged categories, which is extremely tenuous given that, in

situations of live recording or text-based commenting, any actor can take away the user’s right to

post, regardless of the legality of said post. User rights are therefore constrained, left to the

mercy of platforms too large and complex to guarantee these rights in any legally-recognized

way.

CONCLUSION

The modern internet is a necessity to most people in The United States. Millions of

businesses, livelihoods, and creative projects rely on content hosting platforms to function,

which is a precarious position given that a single bad-faith actor or algorithmic misfire can

damage or destroy anyone’s online contributions. The legal landscape of such a necessary space

invests all-powerful authority in machines who are incapable of filtering content using the

nuance and sensitivity required to accurately weigh the merits of copyright. Going forward, the

framework of the DMCA needs to change. The internet no longer exists in the halcyon days of

1998, before Google, Facebook, and YouTube even existed, and the internet’s seminal governing

law must reflect this fact.

I advocate for a legal mechanism that requires content hosting platforms demonstrate a

greater degree of due-diligence when investigating copyright claims. I also advocate for the

regulation of copyright-filtration algorithms, and suggest that future research be conducted into

the specificities of these algorithms. The code for these algorithms is guarded by the platforms

that utilize them, but any in-depth analysis of these codes would be invaluable to advancing this

field of inquiry. This field is also in need of more meta-analysis. How many claims are done in

bad faith? How many are made in error by an algorithm? How many counterclaims get ignored

or under-investigated? These types of raw data would be especially useful in a future policy
proposal. While these algorithms are a necessary function for a large, complex internet, they

ought not to be the final, unchallengeable arbiters of who is allowed to speak in online spaces.