Bad Reviews: How Companies Abuse the DMCA to Silence Negative Criticism

In last week’s blog post, I outlined the different ways in which a business can legally go about silencing negative reviews. With the exception of the reviewer or review site voluntarily removing content, or a court order requesting a removal based on defamation, there is little that can be done to forcefully censor online criticism in a manner which is consistent with U.S. law.

Copyright laws in the United States have clear exceptions put in place to protect an individual’s freedom to express their opinion online. The fair use exception specifically allows for the use of copyrighted works without permission from the rightsholder, for the purposes of commentary and criticism. With respect to the enormous industry of online reviews, there are very few cases in which copyright infringement can legally be used to silence negative reviews.

Section 512(c)(3) of the Digital Millennium Copyright Act (DMCA) states that the complaining party in a copyright infringement notice must have a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” In other words, businesses should not knowingly send baseless takedown notices claiming infringement. Section 512(f) states that “Any person who knowingly materially misrepresents... that material or activity is infringing” will be held liable for damages “including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation.” These penalties have not seemed to deter numerous companies at taking a crack at abusing the system anyway. This approach to silencing bad reviews has additionally been known to backfire, leading to even worse publicity if the story gets circulated on enough news sites.

Sadly, the “good faith belief” clause of the DMCA has been shamelessly violated over the years, in increasingly malicious ways. There are several commonly used abuses of the DMCA which have become the go-to last resort for businesses desperate to get a review removed at any cost.

One of the most common methods is claiming copyright infringement for simply mentioning the name of the business or product being reviewed, essentially using trademark claims disguised as copyright via the DMCA. In one highly publicized incident, GoPro sent a DMCA takedown notice to DigitalRev for including the words “GoPro” and “Hero” in its review comparing the GoPro Hero 3 camera to Sony’s HDR-AS15. The letter stated they had a “good faith belief” that the DigitalRev infringed on their trademark rights by using the name of the company in its review.

There are two major issues with this notice. Firstly, using the name of a product to review that very product does not violate any copyright law, and falls completely within the fair use exception for commentary and criticism under the DMCA. Secondly, the DMCA only applies to copyright infringement, not trademarks. Even if they were to take the trademark infringement claim seriously, no such trademark protection exists for using a company or product’s name in a review.

GoPro’s poor attempt at taking down a (mostly positive) review of the GoPro Hero 3 erupted into a deluge of unwanted bad press for the camera company. The fact that they Streisanded themselves into an even worse position, and were pressured into giving a public response shortly thereafter, has not scared other companies away from abusing similar tactics.

Three months after GoPro’s unsuccessful attack on DigitalRev, photography lighting company Rotolight went after video producer Den Lennie for a Vimeo review comparing the Rotolight Anova to a competing product, the Kino Flo Caleb. Lennie’s review concluded that the Rotolight Anova was, in his opinion,