I think we all know by now that copyright laws are theft and piracy is sharing….if they believe they can get away with something wrong then they are not going to stop those they accuse of doing something they perceive as wrong.

We should all know by now that the courts are in the pockets of big business and if this is the way they treat their citizens why should the citizens in any way even consider what they are complaining about.

Fair use is to corporate interests what the 4th Amendment of the Constitution is to federal agencies: an unnecessary inconvenience.

Still, if we accept the court’s reading of this, it seems (to me, at least) to only further the argument that the DMCA takedown process is a clear violation of the First Amendment, because it now clearly allows for blatant censorship, with no remedy even if the process is abused to remove non-infringing speech, such as fair use.

The problem with your argument, Mike, is that a private party doesn’t become a state actor just because they’re responding to a DMCA takedown notice. Without a state actor, there can be no First Amendment violation.

I would like to say that this is slightly less cut and dried than other cases. There is definitely a fair use case here (and fair use is definitely not a defense) meaning that the Judge is likely wrong.

However, punishing someone because their interpretation of a law is different than yours is also likely wrong. Counter notices seem like the solution here, although those are just as sticky.

Especially since this is a case between two smaller parties, sometimes the courts need to make a call.

To be fair, stating that you are abusing a law for personal gain (taking down someone else’s blog using the DMCA) should also be punishable.

I am still trying to understand why it is felt by the author here that the takedown notice(s) was/were bogus? Certainly it cannot be because of what someone said someone else said during confidential negotiations, the respective of said “saids” never being reduced pen to paper. Thus, it has to be something else, but what that something else is does not jump off the paper.

BTW, saying that it is fair use does not make it so, and saying that consideration of fair use is an immutable requirement pre-filing of a takedown notice is most certainly not a rule that has ever been established (to my knowledge) by either Congress or the Supreme Court.

That is entirely correct. Being unconstitutional under the First Amendment requires only two things: 1. that a law abridge freedom of speech, and 2. that the law be passed by Congress. The Fourteenth Amendment’s Due Process Clause extends this to state laws as well.

You’re missing much. Judicial or administrative actions can violate Free Speech Clause of the First Amendment, even though not applying a law passed by Congress. A law passed by Congress can violate other parts of the First Amendment as well, such as the Establishment Clause.

The government does not have to be a party in the case; they only have to create the law.

In fact, most of the landmark First Amendment cases (New York Times Co. v. Sullivan, Hustler Magazine v. Falwell, etc.) involved libel, which is also a dispute between private parties. If the original poster was correct, the First Amendment would not apply in libel cases, either, which is clearly not true.

Can you find any prior restraint cases where the censor was not the government, i.e., a state actor? We’re talking about prior restraint, not substantive challenges to statutes such as Sullivan, Falwell, and the like.

Sure thing:

I’m sure you can find a lot more if you use the Googler.

It never ceases to amaze me that your posts are marked ?insightful.? A court-issued injunction is one of the classic presentations of a prior restraint. The court is the censor. The court is the state actor. The issue is whether the court is imposing a prior restraint by issuing the injunction. There are in fact cases out there where a private party was considered to be a state actor such that the prior restraint doctrine applied. You haven?t found them, and I won?t point you to them since you?re confused enough as it is. You’re good at finding the puzzle pieces, but not so good at putting the pieces together.

The Falwell case was not a substantive challenge to any statute.

Sure it was. It was a substantive First Amendment challenge to intentional infliction of emotional distress under Virginia law. The issue was whether the First Amendment mandated that the actual malice standard from Sullivan applied.

And keep in mind that substantive challenges to statutes are also prior restraint: “For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms…” (Staub v. City of Baxley). There are other substantive challenges that are explicitly called “prior restraint” if you want to look for them.

The issue there was whether the City?s licensing scheme was a prior restraint. A licensing scheme is another classic presentation of a prior restraint. The licensing authority is the censoring state actor. The lack of adequate procedural safeguards can render such a scheme unconstitutional. It?s not a substantive challenge. It?s a challenge as to the adequacy of the procedures employed under the prior restraint doctrine.

In any case, substantive First Amendment challenges make the law just as unconstitutional as procedural prior restraint, so I have no idea why you’re only focusing on the latter.

I?m focusing on prior restraint because Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint. He’s arguing that it’s a prior restraint because speech is removed from circulation without adequate procedural safeguards to ensure that that speech is unprotected. I’m pointing out that it’s not prior restraint since it’s not the government removing the speech from circulation.

But to answer your question, the reason prior restraint cases so often involve the government, is because they’re the ones with the most power to do it. For example, in civil cases, adversarial proceedings almost always occur before any speech is enjoined or expressive articles are seized. That’s not true as often in criminal cases, and it’s why procedural safeguards are doubly important in those cases.

They involve the government, or I should say a state actor, because without one there can be no prior restraint. That?s my point. If I send Mike a DMCA takedown notice and he removes the complained-of material, he?s not magically transformed into a state actor such that his removal of the material is a prior restraint.

Karl’s arguments that a state actor isn’t required are very convincing, but that aside, why wouldn’t you consider the sender of the DMCA notice an authorized agent of the state and therefore a state actor?

Huh? Karl’s argument that a state actor isn’t required for the First Amendment to be in play is completely wrong. There can be no First Amendment violation without a state actor. Read up on the state action/actor doctrine if you’re genuinely interested. To your question, no, neither the sender nor the recipient of a takedown notice is the agent of the state. Good thought, though, since such an agency relationship could make one a state actor. But merely being incentivized by the promise of a safe harbor isn’t enough to make one an agent, especially when you consider that that party is incentivized by the threat of liability for failing to take down the content already–even without the promise of a safe harbor. One of the problems with Mike’s theory is that he makes it sound like the safe harbors incentivize people to do something that they aren’t already otherwise incentivized to do. They don’t.

Sending a DMCA notice is not an extra-judicial action, as that term is normally applied. The DMCA system did not spring up, ex nihilo, from agreements between rights holders and ISPs. It is not a voluntary agreement between private parties.

Good grief, Karl.

extrajudicial, adj. (17c) Outside court; outside the functioning of the court system

Black’s Law Dictionary (9th ed. 2009).

It’s done outside of court. There is no judicial supervision. There is no case before the court. You are completely clueless.

It is an action that is specified, in great detail, by Federal statute. When a rights holder sends a DMCA notice, they are exercising a power granted to them exclusively by the state. They are acting under state authority; it is a state action.

Nonsense. They can send, and did send, takedown notices without the DMCA. It doesn’t grant them any power they wouldn’t otherwise have. And even if that were true that it was state action, which it is not, that wouldn’t change the fact that it’s extra-judicial. You are, once again, on a tangent, completely confused by even the most basic of concepts. All of your quotes about state action have absolutely nothing whatsoever to do with whether the actions are extra-judicial. This is what I mean by you going off on tangents. You’re so completely and utterly confused by this stuff that you don’t even know when you’re changing the subject. You jumble all of these distinct things together into one incoherent mess.

When an ISP takes down that content, they are not doing so “voluntarily.” They are obeying a Federal statute, and doing so under the threat of legal sanctions – not the threat of private actions. They do so because the law “has exercised coercive power or has provided such significant encouragement” that they have little choice but to take down the content.

Of course it’s voluntary. Service providers can and do choose not to take down complained of content. The coercion comes from the threat of liability for copyright infringement, which exists outside and without the DMCA.

It matters not a whit that they may not actually be taken to court. From Bantam, “the threat of invoking legal sanctions” is enough:

It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was “free” to ignore the Commission’s notices, in the sense that his refusal to “cooperate” would have violated no law. But it was found as a fact — and the finding, being amply supported by the record, binds us — that Silverstein’s compliance with the Commission’s directives was not voluntary.

The Commission there was set up under state law to investigate and recommend the prosecution of certain violations. That’s a state actor. That’s nothing like a private party sending a takedown notice, and it’s certainly got nothing to do with whether takedown notice senders and receivers are acting extra-judicially. The DMCA doesn’t deputize rightholders to help enforce state laws on the state’s behalf. Rightholders can already send takedown notices without the DMCA.

When a private party complies with a regulation specified by the state, then it is not a voluntary action, even if non-compliance does not actually violate any law. And when a private party exercises power granted to it by statute, it is not a private action, it is “performed under color of state law.”

Again, rightholders can send and did send notices before the DMCA. The DMCA doesn’t grant them any powers.

I have to admit, it IS hilarious that Mike is scared of a 3-year-old throwing tantrums.

The thing about me that scares Mike is how easy it is for me to call him out on stuff like this where he claims something violates the First Amendment. Mike has no idea what he’s talking about. He can’t do the analysis. He doesn’t understand the doctrines. He’s just pumping out faith-based FUD. He knows it too, and he’s so ashamed of himself that he has to stifle anyone criticizing him and pointing out that he’s a clueless schmuck. Mike doesn’t stand behind his claims because he can’t. He’s just an angry little mouthpiece yelling at the world, and he can’t stand anyone pointing that out. Mike is petrified of me since I see right through him. He runs from me every time because he’s a total fake and total coward. Nobody hates criticism more than Mike. The fact is, he does all the stupid things that he ridicules others for doing.

OK, let?s start with your claim that ?[w]hether that state action is actually carried out by private parties or not makes no difference.? This is patently untrue. It?s basic constitutional law that the party who deprives someone of a constitutional right has to be a state actor or else there can be no constitutional violation.

A person who is deprived of a civil right has an action under 42 U.S.C. 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Note that the person who causes the deprivation has to be acting under color of law. This color of law requirement for Section 1983 is the same as the requirement of state action for a direct constitutional challenge:

If the challenged conduct of respondents constitutes state action as delimited by our prior decisions, then that conduct was also action under color of state law and will support a suit under ? 1983.

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 (1982).

?Under color? of law means the same thing in s 242 that it does in the civil counterpart of s 242, 42 U.S.C. s 1983. . . . In cases under s 1983, ?under color? of law has consistently been treated as the same thing as the ?state action? required under the Fourteenth Amendment.

U. S. v. Price, 383 U.S. 787, 794 n.7 (1966).

The thing you?re missing is that the constitutional violation must have committed by someone acting under color of law, i.e., a state actor:

To state a claim under 42 U.S.C. ? 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.

Schorr v. Borough of Lemoyne, 265 F. Supp. 2d 488, 491 (M.D. Pa. 2003).

To make out a claim under Section 1983, a plaintiff must demonstrate that the conduct of which he is complaining has been committed under color of state or territorial law and that it operated to deny him a right or rights secured by the Constitution and laws of the United States. . . . . The plaintiff must also establish that it was the acts of the defendant which caused the constitutional deprivation.

Mosley v. Yaletsko, 275 F. Supp. 2d 608, 613 (E.D. Pa. 2003).

To state a cause of action under 42 U.S.C. ? 1983 for an alleged violation of the Fourteenth Amendment and provisions of the Bill of Rights incorporated into the Fourteenth Amendment, ?it is beyond cavil? that challenged conduct must constitute state action. . . . A proper claim must incorporate at least two elements, each a distinct inquiry: 1) the plaintiff must show that he has been deprived of a right protected by the Constitution and laws of the United States; and 2) the plaintiff must show that the putative state actor deprived him of the right while acting ?under color of any statute? of the [municipality]. . . . Given that Tool Box has alleged a deprivation of its First Amendment rights, we jump directly to the second inquiry-that is, whether Tool Box has demonstrated that the Review Board acted under color of state law or, rather, engaged in state action.

Tool Box v. Ogden City Corp., 316 F.3d 1167, 1175 (10th Cir. 2003).

The question is whether the party that directly caused the deprivation is acting under color of law. Mere private action is not enough:

To state a claim for relief in an action brought under ? 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of ? 1983 excludes from its reach ? ?merely private conduct, no matter how discriminatory or wrongful,? ?

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

If the deprivation is carried out by a private actor, there can be no constitutional violation. This is basic Con Law I stuff. The ?party charged with the deprivation must be a person who may fairly be said to be a state actor? Id. at 50. The party that causes the deprivation must be a state actor. Period. The ?principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated.? Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974). The fact that you deny this is truly remarkable. ?Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.? Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).

The conduct that causes the deprivation must be state action. The person causing the deprivation must be a state actor. It?s really that simple. Your claim that ?[w]hether that state action is actually carried out by private parties or not makes no difference? is completely false and completely clueless.

The requirement that the deprivation be caused by the conduct of a state actor holds true in the prior restraint context as it does in constitutional contexts generally:

The expression ?prior restraint? in first amendment law is a term of art. In prior restraint cases, the government typically brings an action to enjoin speech or imposes a requirement of advance approval, censorship or licensing of speech. . . . None of this typical action is present here. Carriers are private companies, not state actors, . . . and accordingly are not obliged to continue, restrict or terminate the services of particular subscribers. Thus, a carrier is free under the Constitution to terminate service to dial-a-porn operators altogether.

Info. Providers’ Coal. for Def. of the First Amendment v. F.C.C., 928 F.2d 866, 877 (9th Cir. 1991).

Only where the government imposes a requirement of advance approval or seeks to enjoin speech can there be prior restraint. . . . That is not the case here. The Helms Amendment requires no one except dial-a-porn providers to classify their messages, and therefore it cannot be said to operate as a prior restraint on speech. The carriers themselves are not state actors but private companies.

Dial Info. Servs. Corp. of New York v. Thornburgh, 938 F.2d 1535, 1543 (2d Cir. 1991).

Can you admit that your claim that ?[w]hether that state action is actually carried out by private parties or not makes no difference? is wrong, or should I pull up more case law? Answer me that, and then we can talk about whether the DMCA transforms private actors into state actors. But first I want to be clear that you’re wrong about it not mattering whether the party causing the restraint is a private actor or not.

This is probably going to be my last post on this thread. I have no more time for this nonsense.

I?m not surprised you?re running away. You?ve been shown to be completely wrong about even the most basic things, and you can?t even admit a single error on your part. I don?t get why you insist on talking like an expert about doctrines you know very little about. I really don?t get it.

So far as I know, Google – like all ISPs that I’m aware of – only ignore invalid DMCA notices. As they are told to do by the DMCA statutes.

Google admits that it ignores takedown notices that meet the statutory specifications:

Why do you remove some URLs but not others?

It is our policy to respond to clear and specific notices of alleged copyright infringement. Upon review, we may discover that one or more URLs specified in a copyright removal request clearly did not infringe copyrights. In those cases we will decline to remove those URLs from Search. Reasons we may decline to remove URLs include not having in enough information about why the URL is allegedly infringing; not finding the allegedly infringing content referenced in the request; deducing that the copyright removal process is being used improperly (see next FAQ for examples) or fair use.

Link: www dot google dot com /transparencyreport/removals/copyright/faq/#compliance_reasons

Sorry, my proxy doesn?t let me post regular links. Nothing in the DMCA says that service providers can evaluate for themselves whether they think it?s fair use, yet Google right there admits that they do. Nothing in the DMCA says that a service provider MUST take down content. Sorry, Karl, but there is no compulsion.

Once again, that argument was shot down in Bantam. Also, you’re ignoring that bit in Carson where they mentioned “significant encouragement.” By granting immunity from legal liability (a state action), it does in fact provide “significant encouragement.”

Yes, it can be so coercive that it?s not voluntary. So what? Lots of statutes grant people immunity from legal liability. Look up the cases on shop keepers holding suspected shoplifters. In my state, such shopkeepers have immunity and are allowed to do things that if done by a police officer would violate the Constitution. Yet, even then the shopkeepers aren?t state actors and there is no constitutional violation. You don?t have a clue what you?re talking about. You?ve proved that many, many times already above. You haven?t studied the state action doctrine. Why pretend to be an expert on it?

Your argument could only hold water if the DMCA had no legal force whatsoever. It must be, like a standard of weights and measures, “educational and advisory merely […] and not a rule or regulation of a legislative character” (Standard Computing Scale Co., Ltd. v. Farrell).

Absolute nonsense. Even highly regulated industries are not state actors. Look at all the EPA regulations for an oil refinery. Just following those regulations doesn?t make the refinery a state actor. You have no clue about the nuances of the state action doctrine. None. I haven’t studied it very closely either, but I understand the basics. You don’t. You’ve been all over the place with your arguments, contradicting yourself and looking like a fool.

Honestly, the idea that ISPs follow the DMCA for purely voluntary reasons is so completely loony, I have no idea how you can make it with a straight face.

Because it?s true. Even Google publicly admits that they choose to ignore certain notices, even notices that otherwise meet all the specifications in the DMCA. It?s completely voluntary. If you send a takedown notice to YouTube, YouTube can throw it in the trash.

The Jackson action (ha!) was not in any way regulated by the state, so it was not a state action. That was never in dispute. The test was whether the power company was nonetheless a state actor, solely due to the fact that it was state-regulated in unrelated ways.

The utility held a monopoly, was extensively regulated, and terminated service in a manner that was permissible under state law.

None of that applies if the actions themselves are specified by statute. If that’s the case, the actor does not need to be in a joint venture with the state, and does not need to be performing a state function.

The DMCA doesn?t say the service provider must take down the content.

On a separate note – it could be argued that the sender of a takedown notice be a “state actor” in the fullest sense of the word, through the Marsh test. They are allowed to demand, with the power of the state at their disposal, that ISPs remove speech from circulation, because it “is not authorized by … the law.” That is a function traditionally and exclusively performed by the judiciary.

Of course, that argument is unnecessary. Their actions are specified by statute, so they act “under color of any statute” (duh). That test applies to “every person,” not just to people acting on behalf of the state.

No, they are private actions taken voluntary. They are actions that people were taking before the statute, and they would be taken if the statute were removed. The argument is so dumb that no party has ever brought it up in 15 years of DMCA litigation. Not even Lessig, Mr. First Amendment, is arguing it in his current case. You are completely clueless.

To date, Arcara has been determinitive in absolutely no copyright case whatsoever. Because it can’t be – it only applies if the regulated activities “manifest absolutely no element of protected expression.” As both London-Sire v. Does and Sony v. Does make absolutely clear, even simple piracy “has some First Amendment value” and “qualifies as speech entitled to First Amendment protection.”

The Court even says that the prostitution in Arcara was slightly expressive. The question is whether it?s expressive enough to get intermediate scrutiny. It?s not. Has any court ever said that the conduct of a copyright infringer is so expressive that he gets intermediate scrutiny? You’re looking at two cases that dealt with whether it was expressive enough to quash a subpoena–and it wasn’t. What’s that got to do with whether it’s expressive enough to get intermediate scrutiny? You’re mixing doctrines and not even knowing that you’re doing it.

It certainly does not apply to the ICE seizures, which were “imposed on the basis of an advance determination that the distribution of particular materials is prohibited” – putting it explicitly out of the reach of Arcara.

We?ve been down this tangent before. That quote from Arcara is talking about prior restraint analysis, and the part above is talking about substantive First Amendment analysis. The Court in Arcara discussed both substantive and procedural First Amendment analysis. The ?advance determination? is referring to licensing schemes, one of the quintessential prior restraints. You?re just mixing up all the doctrines as per usual because you?re completely clueless.

You were wrong; you were clearly wrong; and you have not once admitted it. Not only did you not admit it, you fabricated a court ruling in your mind that said you were right.

That really says it all.

I said I may have misremembered whether Judge Crotty cited Arcara. I?m happy to admit it. I did admit it. I may have been wrong about whether he cited Arcara. I really don’t know. If I get a chance later, I?ll find the ruling to verify. What really says it all is that you can?t admit a single mistake in anything you said above, even though you are so thoroughly confused about it all. You go off on all these tangents without even knowing it because you have no idea what you?re talking about. I?m glad to go through everything you got wrong, point by point, if you want. I suspect you don’t.

I’m not “running away.” When I said I didn’t have time for this nonsense, I was not being glib.

I am in college full-time, taking 400-level computer science and mathematics courses. Before school, every day, I work for a startup, composing music and programming a sound engine for their Android app. I am so pressed for time, that just today I had to cancel a gig, because I don’t have any time to practice. I’m not studying law, so for me to spend any more time on this would be, literally, nonsensical.

Yes, Karl, the hours of the day you don’t spend studying the law is abundantly clear.

In any case, insulting me will never convince me or anyone else that you’re right. All you have to do to show I’m wrong is come up with a single court case, where:
– an action was taken that infringed upon someone else’s Constitutional rights;
– that action was explicitly defined by a government statute;
– following that statute had legal consequences;
– yet that action was found to be outside the reach of Constitutional analysis, because it failed to reach the level of a “state action.”

Good luck with that.

But it doesn’t infringe upon someone’s constitutional rights if it’s done by a private party. That’s the whole point of the state action doctrine. You need to show that the sender or recipient of a DMCA takedown notice is a state actor. As I said above, and as you vehemently denied at first while you were proving that you have no grasp of the state action doctrine or the difference between substance and procedure, that’s why Seltzer and Mike were saying the DMCA compelled people to act. Without that compulsion, it’s not state action. And the problem is that the DMCA doesn’t compel anyone to act. That’s why Google takes it upon itself to ignore takedown notices if it thinks certain uses are fair. If Google were compelled to take down content, then why would they admit that sometimes they don’t? The coercion to take down content comes from the threat of infringement liability, not the DMCA. That coercion existed before the DMCA. It wasn’t created by the DMCA. And the coercive power of the threat of liability doesn’t change private actors into state actors. The consequences for breaking the law are meant to coerce. That’s the whole point of having penalties for breaking the law. But just because there is coercion to follow the law, that doesn’t make every member of the public who does so a state actor.

No. The court looks at the action to see if it can be “fairly attributed to the state.”

This determination does not require that the private party be “magically transformed into a state actor,” and in these situations, no court that I am aware of has claimed that it did.

Blah, blah, blah. I love how you now have to be an expert on a doctrine that you didn?t even understand in the slightest just days ago. I?m starting to see that it?s an ego thing with you. You don’t have to pretend to be an expert on every legal doctrine you discuss, Karl. You’d look a whole lot smarter, ironically enough, if you just admitted that you don’t understand the nuances. The party that imposes the restraint or deprivation must be a state actor. You haven?t disproved that, nor can you because it?s true. Actions are done by actors. It?s really simple. You haven?t disproved that the state action doctrine is the same thing as the state actor doctrine, nor can you because it?s true.

Conduct allegedly causing the deprivation of a constitutional right protected against infringement by a State must be fairly attributable to the State. In determining the question of “fair attribution,” (a) the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by it or by a person for whom it is responsible, and (b) the party charged with the deprivation must be a person who may fairly be said to be a state actor, either because he is a state official, because he has acted together with or has obtained significant aid from state officials or because his conduct is otherwise chargeable to the State. […]

That is clearly the type of challenge that Mike and Prof. Seltzer are talking about.

That doesn?t change the fact that Seltzer and Mike are arguing prior restraint when they say that more procedural safeguards are needed before the speech is restrained. You still don?t get the state action doctrine. Lugar was an action under Section 1983 against a creditor who was acting under color of state law. That makes the creditor a state actor. The DMCA is a federal law, so you can?t have a Section 1983 action since the state actor has to be acting under color of STATE law. Regardless, the big issue in Lugar was whether the creditor was a state actor. The district court held that the creditor wasn?t, the Fourth Circuit affirmed, and the Supreme Court reversed. The key is that the party imposing the restraint has to be a state actor. They couldn?t sue the creditor for violating their constitutional rights unless the creditor was a state actor. Whether the creditor was acting as a private actor or a state actor was critical.

The same thing is critical with the DMCA. The party imposing the restraint, i.e., the service provider or the rightholder, must be a state actor. That?s why Seltzer and Mike argue that the DMCA ?compels? them to act. Without that compulsion, there can be no state action as to the party that causes the restraint. If Lessig sues Liberation Music or YouTube for violating his constitutional rights, he needs to show that Liberation Music or YouTube was a state actor. He can’t sue Liberation Music or YouTube and argue that his constitutional rights were violated by someone other than Liberation Music or YouTube as you seem to think. He can’t sue Liberation Music or YouTube and then argue that his constitutional rights were violated by Congress and the DMCA but not by Liberation Music or YouTube as you seem to think.

If that content is protected by the First Amendment, then yes, it is. When ISPs are threatened with legal liability (unquestionably a state action), as determined by legal statute (also unquestionably a state action), if ISPs don’t take down protected content, then the state has censored protected speech. There is absolutely no question about this.

Nonsense. Mike can delete all of our constitutionally protected comments from his website as he pleases. You still don?t get that the party imposing the restraint has to be a state actor. If Mike is threatened with legal liability for not taking down infringing content and he chooses to take down infringing content, he?s not a state actor. Simply acting to avoid being liable for a tort doesn’t make someone a state actor. The law is meant to shape our actions. It’s meant to deter. If I post something that infringes on Techdirt and Mike takes it down out of fear of liability, he?s not a state actor. He can?t violate my constitutional rights. I can’t sue him for taking it down and then claim that some party other than him (like Congress) violated my First Amendment rights as you seem to think.

I am not pretending to be an expert on every legal doctrine. I am saying that even a non-expert like me can see that you’re wrong.

In these debates, you?ve always done what you?re doing here. You pretend like you?re an expert about complicated and subtle legal doctrines while simultaneously proving that you don?t even grasp the basics. And then you never admit any mistakes no matter how thoroughly you?re proved to be wrong. You go off on all sorts of tangents, unintentionally, because you don?t even know enough about what you?re talking about to know when you?ve changed the subject. You mix up all the doctrines into a silly jumbled mess. You do it every time.

Nor do I have to disprove that, because I never claimed otherwise. My argument is, and always has been, that the party that is imposing the restraint is Congress (through enacting the DMCA statutes) and/or the judiciary (through enforcing them).

Congress does not remove videos from YouTube. You need for the party that actually imposes the restraint or deprivation to be a state actor. You haven?t cited, nor can you cite, a single case where the party that actually imposed the restraint was Congress. The whole point of the state action doctrine is to determine if the party that actually causes the deprivation is a state actor. If not, there can be no unconstitutional deprivation.

And if those actions are “fairly attributable to the State,” they are state actions. It’s really simple.

The point I?m responding to there, which you of course would rather not discuss, is where you claimed that the state action doctrine and the state actor doctrine are two separate doctrines. They?re not. You were wrong, and, of course, you won?t admit it.

Yes, they are. What they are not arguing is that the people who are imposing the prior restraint are ISPs, acting on their lonesome. The only one making that argument is you.

Are they, or are they not, arguing that the ISPs that remove complained-of content are state actors? They have to argue that the ISPs are state actors since the ISPs are the parties that actually remove the content. You can?t argue that Congress is removing the content because Congress doesn?t physically remove content from a service provider?s system. The actual party that actually removes the content has to be a state actor.

True, but immaterial, since the DMCA does in fact “compel” ISPs to act. It also “compels” the alleged infringers to act by a process strictly described by the DMCA statutes (at least, if they don’t want their First Amendment rights to be violated). And it “compels” rights holders to act as strictly proscribed by statute, if they want their (state-created) rights to be enforced.

Compel doesn?t mean what you think it means. I understand that you disagree about whether the DMCA actually compels an ISP. I think you?re totally delusional if you think the DMCA compels rightholders to send DMCA notices if they want their rights to be enforced. They can, and do, send notices that aren?t DMCA notices. And they can, and do, sue service providers without sending a notice. But I want to get to the bottom of the other issue. Do you or do you not agree that it can?t be a prior restraint unless the service provider is a state actor?

The only way a Constitutional analysis could be avoided, is if the conduct of ISPs, rights holders, and takedown victims was all “merely private conduct” – as in A, above. This is obviously false.

Why is it false? Do you agree that the service providers have to be state actors or else it can?t be a constitutional violation?

You have not shown a single case where it was determined that conduct specified by legal statute is “merely private conduct.” And you can’t. Because it’s not.

I mentioned the shopkeeper cases. But you don?t grasp that your silly theory would mean that everyone who follows the law is a state actor. It doesn?t work that way. I pointed out quotes above of the Supreme Court saying that even regulated business, whose conduct absolutely is specified by legal statute, are not state actors. So when you say I haven?t shown a single case, you?re just wrong.

But if he was doing so because it’s the law, then it would be unconstitutional. It would be unconstitutional even if Mike was not “magically transformed into a state actor.” It would be unconstitutional even if Mike did not face personal liability under a 1983 action.

So many things wrong with this. If Mike weren?t a state actor, and he was doing it, then it wouldn?t be a constitutional violation. You really are missing this simple, fundamental point. It?s just like in Lugar. It couldn?t be a constitutional violation unless the creditor was a state actor. You need the actual party that actually causes the deprivation to be a state actor. I?m sorry you don?t understand this. You haven?t, and can?t, find one single case where the party that imposed the restraint wasn?t a state actor. That?s the whole point of the state action doctrine.

The question in general is whether Congress (state actor), in enacting the DMCA requirements (state action), was committing prior restraint, because the statutes require ISPs to take down content without the necessary safeguards.

No. No. No. The actual party that actually causes the restrain has to be a state actor. The only way it can be a prior restraint is if the ISPs are state actors. You simply cannot have the ISPs, the parties that actually restrain the speech, be private actors yet it?s still prior restraint. The point is so simple. Every single case discussed above follows this rule.

The question in the instant case is whether Judge Stearns (state actor) interpreted 512(f) liability (state action) in a way that encourages or endorses the censorship of protected speech.

Bullshit. The judge is not restraining the speech in the 512(f) action. The actual party that actually restrained the speech is the ISP. That restraint happens whether there?s a 512(f) action or not. Mike?s theory that Lessig?s First Amendment rights were violated doesn?t turn on there being a 512(f) action. His theory is that there?s a constitutional deprivation whether or not there?s a 512(f) action. You?re so grasping at straws with this stuff.

You’re arguing that these questions cannot even be asked, because sending a DMCA notice (as specified by statute), which causes ISP censorship (as specified by statute), is somehow “merely private conduct.” And furthermore, that this immunizes Congress and the judiciary from Constitutional scrutiny.

It is a ridiculous argument.

It?s only ridiculous if you start with your conclusion, as you and Mike do, and then work backwards. It can?t be a prior restraint unless the actual party that actually causes the restraint is a state actor. You don?t get to challenge it as a prior restraint if there?s no state actor causing the restraint. It?s simple extrajudicial, private action that happened before the DMCA and would happen without the DMCA. Rightholders were sending takedown notices to ISPs before the DMCA. The threat of liability for infringement existed before the DMCA. You?re acting like the DMCA changed everything. It didn?t.

You can’t just say that Congress enacted the DMCA so there’s your state action. You need the party that actually causes the restraint to be a state actor. If it’s the court imposing the restraint, following Congress’s law, then it’s the court that is the state actor. If it’s a law enforcement agent imposing the restraint, following Congress’s law, then it’s the law enforcement agent that is the state actor. And if it’s an otherwise private actor imposing the restraint, following Congress’s law, then it’s not a constitutional violation unless that private actor is a state actor. It’s really simple, Karl. I don’t know why you’re so hard-headed with this stuff. You admit that you’ve not studied the law and that you don’t have time to study the law. Why be so closed-minded to someone pointing out the law? I don’t get it.