Venture Beat Reporter Abuses DMCA To Silence A Critic

[Wilhelm]

Remember when people kept insisting that the DMCA was never used for censorship? Yeah, about that. Last week, we were alerted to how a reporter from VentureBeat/Gamesbeat by the name of Jeffrey Grubb had sent a DMCA notice for screenshots on a tweet by Jake Magee, who tweets under the account PhoxelHQ. Magee had taken a few screenshots of an article by Grubb and put up a tweet criticizing it. This is quintessential fair use, whether or not you agreed with Magee.

Apparently Grubb wasn't thrilled about Magee adding some commentary to Grubb's game review, and did what any reasonable adult would do: run to the DMCA to shut up a critic:

I have a bunch of concerns about this -- starting with the fact that unless VentureBeat gives its staffers their own copyrights, this is quite likely copyfraud, as the copyright would likely belong to VentureBeat, and Grubb is falsely claiming to be the copyright holder. I emailed VentureBeat to ask them who holds the copyright on its articles -- the company or the journalists -- and got no response. Ditto for my emailed question about whether or not they had any further comment on the situation.

Grubb's response to all of this has been... bizarre to say the least. He first claimed that he filed the DMCA notice because the screenshots reproduced the article in full. But when Magee pointed out it was actually around 30% of the article, Grubb apologized but only for using the word "entire", and not for the fraudulent DMCA filing. Separately, Grubb has repeatedly claimed he wouldn't have sent the DMCA notice if Magee had provided a link to the original article.

While providing a link might have been nice and courteous, it is, in no way, required. The whole point of fair use is that it is, by it's very nature, permissionless. If you needed permission, that would mean you need a license, and that by definition would mean it's not fair use. The conditions on fair use are set by the law and not by the copyright holder. If the conditions were set by the copyright holder, there wouldn't be any fair use at all (and, again, it's not even clear that Grubb is the copyright holder here!).

What's striking about the Twitter discussion back and forth between Grubb and Magee is just how much it's clear that Grubb couldn't care less that he abused the law to silence someone. He makes repeated flippant and jokey comments about Magee and Magee's supporters, and his only apology was for falsely claiming that Magee posted the entire article.

If section 512(f) of the Copyright Act had any actual force, Grubb might actually be in some legal hot water for filing a bogus DMCA notice. Lucky for him, the courts have mostly rendered it entirely toothless. Still, it remains incredible how many people see the DMCA as a "censor this thing I don't like" tool. Copyright is a tool for censorship, and you can argue that some of that censorship is completely reasonable and okay. But as a tool for censorship it is quite frequently abused. And this is just one more example. That it's being done by a journalist for a well known publication is that much more troubling.