May 12, 2009
IP or Censorship: DMCA take-downs of racism protest

Recently, in one of the "routine sweeps" of DMCA take-downs we've all become accustomed to throughout a variety of user-generated content platforms, the contents of the store were removed from on-demand retail platform was a non-profit effort that sold t-shirts to protest the all-white casting of non-white leads in the Avatar: the Last Airbender live-action film (more details on that particular controversy here and here The store sold shirts with original art and designs, mostly slogans such as "Aang ain't white," and none of the products on the site contained any images from the series (check out the designs) -- the only thing "in violation of Viacom's intellectual property rights" were words used to talk about the Viacom property. (In an update, a counter-claim was filed and the store was restored, with both and Viacom refusing responsibility and laying the blame with the other party).

We are, by now, long accustomed to epic failure on the part of DMCA takedowns initiated by major media conglomerates. Viacom, in particular, has been a visible and often hilariously illogical offender, with its memorable removal of a clip Christopher Knight put up on youtube from the show WebJunk 2.0, which had featured none other than Knight's own campaign commercial (presumably aired without permission).

A version of this was originally posted at

But there are two unsettling things that this instance in particular highlights. The first is a rising trend in companies deciding to "participate" and "acknowledge" and with fans and users by effectively claiming ownership over their discussions and discourse. This is, for instance, what I pointed out with Skittles use (and consequent barring of access to) the twitter feed on their front page. It is a problem of companies claiming to want conversation, but attempting only to enact control.

Related to this is then the second pattern, which is that these supposedly objective methods at issuing take-down, general search-term sweeps that don't differentiate and make value judgements, are in fact anything but neutral. They presumes the right of large corporations -- which are, lest we forget, are already part of a structure of unequal power relations -- while simultaneously allowing them disavow responsibility by blaming it on the technological limitations. That is to say, Viacom and, in this instance, will no doubt claim innocence to censorship by virtue of it having been "unintentional," conveniently overlooking the fact that they have structured their use of technology in a way that makes precisely these types of "unintentional" abuses possible, and increasingly prevalent. The system in place privileges corporations with their take-down then counter-claim process, forcing people to defend their legitimate uses of materials, or in this case, their basic mentioning of a TV series, rather than forcing companies to prove the existence of actual violations.

All of this, finally, is made all the more poignant not only by the fact that this case is one in which either Viacom, in trying to control the use of their properties, or, in looking out for the interests of media conglomerates, not only manages to make copyright claims on work that would in any case by protected under fair use. In the process, they managed to censor a protest around the question of race and representation. In other words, the very voices temporarily silenced this time around -- whatever the intent of Viacom or Zazzle -- we those being raised in protest of already being silenced. Thus, effectively making a statement that groups already struggling for representation in mainstream mass media similarly don't even have the right to represent themselves elsewhere.