Why The DMCA Is An Unconstitutional Restriction On Free Speech

from the notice-and-takedown-this dept

Many legal scholars have discussed the fact that copyright law and the First Amendment are, by their very natures, in conflict. Historically, the Supreme Court has gotten around this conflict by saying that things like fair use and the idea/expression dichotomy help keep things balanced — though many have questioned whether the massive expansion of copyright law over the last century should have changed that analysis. In the Eldred case, the Supreme Court mostly rejected the argument that copyright extension was a violation of free speech, though many legal scholars find that decision a bit of a head scratcher (if you want a great analysis of why that decision makes no sense under the law, the book No Law is a worthwhile read).

But there are still other areas where changes to copyright law may be vulnerable under a First Amendment analysis. So far, the only court case (and it’s still at a low level) that has been successful in attacking the copyright on these grounds is the Golan case, which focuses on a very narrow part of copyright law.

However, it looks like some people are finally looking at some hugely questionable parts of copyright law that seem in direct conflict with case law concerning the First Amendment. Copycense points us to a fantastic recent paper from law professor Wendy Seltzer discussing how the DMCA’s notice-and-takedown policy appear to violate the First Amendment:

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

I’m sure that our usual copyright system defenders will pop up quickly in the comments to dismiss this as ridiculous, but it’s a really strong point. The basic nature of the notice-and-takedown — even if done by private firms — appears to be in direct violation of the First Amendment. The fact that the DMCA effectively requires companies to take this step in order to protect themselves from liability via the DMCA’s safe harbors, means that even though it’s a private company doing this, they are compelled to do so by the government. It does make you wonder if a compelling First Amendment case could be made around this particular issue.

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Comments on “Why The DMCA Is An Unconstitutional Restriction On Free Speech”

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151 Comments
LostSailor (profile) says:

Re: Re: Not at all

Copyright is specifically authorized by the constitution. It’s highly unlikely that any court would find that protection of a constitutionally authorized right would be violation of the first amendment. There is clearly tension and balance between the two, but saying “copyright in an[d] of itself is a violation of the first amendment” isn’t really correct.

ForgottenVoter (profile) says:

Re: Re: Re:3 Not at all

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Even that states limited Times for copyright. And its just a Clause, not a full Amendment, which comes after the clause and is more regularly enforced as the superseding law.

Would you rather have the right to say what you want, when you want or would you rather allow somebody to tell you you can’t say something because they “own” what you said.

Also, isn’t there an earlier post stating they recently changed copyright to the life of the media or something?

John Gardner (profile) says:

How does this happen?

This is why our country is going down the toilet – these laws are so blatantly unconstitutional, yet they are allowed to continue unabated and unchallenged.

Does this issue (and many others like healthcare) not highlight one of the largest flaws in our Constitution? Nothing truly prevents Congress from passing laws which directly violate the rules set forth in the Constitution. I know it would never happen, but should their not be an amendment which forces all would-be-legislation to be reviewed for Constitutional legitimacy? Is that even feasible?

Anonymous Coward says:

Re: Re: How does this happen?

Because actually reading and understanding what it does would marginalize Fox News time.

Actually, I think the issue is that people don’t want to subsidize healthcare for those they consider “freeloaders”. Usually, this is because they don’t understand how that subsidy will benefit society as a whole.

PaulT (profile) says:

Re: Re: Re: How does this happen?

Not to mention that they seem so woefully unaware of how the system currently works, they don’t realise that they’re already paying for said “freeloaders” in the most expensive ways possible.

Also not to mention that they always seem to think that all of the Americans who go without insurance do so out of choice, and seem to think that the huge numbers of medical bankruptcies somehow don’t cost them tax dollars.

The Mighty Buzzard says:

Re: Re: How does this happen?

Unrelated to this article or thread but since you asked… It allows the federal government to mandate that you purchase a service from a private company or payment of a fine. Since this power is beyond anything granted to congress in the constitution, it is a right reserved for the states or the people as is every power not specifically granted to congress. Ergo, it violates either state or individual rights.

Anonymous Coward says:

Re: Re: Re: How does this happen?

You are dodging the question. What right are they infringing on. For instance copyright and DMCA infringe on the first Amendment.

What amendment, law, right, etc says that the government cannot mandate them to make you do something.

I am not trying to attack you. I agree that they should not mandate these things and oppose the healthcare bill on that subject and others but I fail to see how they are infringing on my rights.

Ryan says:

Re: Re: Re:2 How does this happen?

You seem to have misunderstood the Constitution – it enumerates the powers of government, and anything it doesn’t explicitly define as a federal power is denied it. Thus, the question is what amendment, law, right, etc says the government can mandate you to purchase health insurance?

But if you want a specific amendment – the 10th.

btr1701 (profile) says:

Re: Re: Re:4 How does this happen?

> The commerce clause.

The Commerce Clause only allows the federal government to regulate interstate commerce. It in no way empowers the government to force commerce on the citizens. And if the plain text of the Constitution isn’t enough to make that clear, then the writings of the Founders will more than fill that gap for you.

Anonymous Coward says:

Re: Re: Re:5 How does this happen?

The Commerce Clause only allows the federal government to regulate interstate commerce.

Yep, and almost everything has some effect in some way on interstate commerce. Thus, the commerce clause can apply to almost anything. At one time there were a group of southern states that thought otherwise, but that little disagreement was settled with a civil war.

It in no way empowers the government to force commerce on the citizens.

Except if it has some effect on interstate commerce, which most things do.

And if the plain text of the Constitution isn’t enough to make that clear, then the writings of the Founders will more than fill that gap for you.

And in case you didn’t know, the courts decide what the text of the Constitution means, and what I described above is basically what they have decided. Now if that still isn’t clear enough for you, then perhaps you should go back to law school to see if that they can fill that gap in your education for you.

btr1701 (profile) says:

Re: Re: Re:6 How does this happen?

> Yep, and almost everything has some effect in some way on
> interstate commerce.

That still doesn’t empower the federal government to *create* commerce by forcing everyone to buy something whether they want it or not. The Constitution clearly says “regulate” commerce. Not create it.

> Thus, the commerce clause can apply to almost anything.

Yes, that’s the tortured reasoning that the Supreme Court used to rule the New Deal programs constitutional under a court-packing threat from the Executive Branch. Hardly a persuasive argument. A document whose entire purpose is to limit the power of the federal government is suddenly “interpreted” to mean the federal government has unlimited jurisdiction.

Yeah, right.

It in no way conforms to the principles of limited government that the Founders intended and envisioned. The entire Constitution is an exercise in creating a limited federal government, with the majority of the actual governing left up to the state and local governments. What we’ve ended up with– as a direct result of self-serving and illogical “interpretations” of the Commerce Clause– is the exact opposite of what the Constitution calls for.

Checks and balances is a wonderful concept but it only works if each branch actually does its duty and checks the power of the other two. Unfortunately what we’ve experienced is a judicial branch which has wholly abrogated its duty in this regard and allowed the legislative branch to run amuck.

> > It in no way empowers the government to force commerce
> > on the citizens.

> Except if it has some effect on interstate commerce, which most
> things do.

No, the Constitution clearly only allows the government to regulate existing commerce between the states. It does not allow the government to create commerce of its own volition. That’s if the words in the document mean anything any more, of course.

> And in case you didn’t know, the courts decide what the text of the
> Constitution means

No, the courts decide what they want to have happen and then work backwards from that result, claiming that words mean things that they clearly do not and the Constitution says things that it clearly does not in order to justify the results they want.

> perhaps you should go back to law school to see if that they can
> fill that gap in your education for you.

It was law school that taught me how bankrupt our entire government has become. A government that pays lip service to a supreme law but refuses to actually follow it at almost every turn.

The Mighty Buzzard says:

Re: Re: Re:2 How does this happen?

And you’re asking the wrong question. I don’t have to point out what right they’re infringing on, they have to point out what in the constitution gives them this right. If they can’t then they do not have it, the constitution is fairly specific on that.

Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Period. End of story.

CastorTroy-Libertarian (profile) says:

Re: Re: Re:4 How does this happen?

except it is you who does not understand, the Supreme court and the Executive Branch has set precedent in the past that the welfare of the people must be equal all across the nation, this means the Corn Husker and Louisana buy offs are unconstititutional (as sited 47 times by the Supreme Court, and numerous times by the Executive Branch (Andrew Jackson being the first to come to mind)) Thus making the whole thing unconstitutional.

The second point your going to try is the Commerance Clause, expect as Health Insurance is unable to be bought across state lines, that makes the argument defunct as well.

If you want reform you have play by the rules, not make special ones to buy votes.

So actually try and learn how the whole thing works, and thanks for proving a point, if you cant understand or defend something logically, move on to name calling, standard practice now a days by the left.

Anonymous Coward says:

Re: Re: Re:2 How does this happen?

How about the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This comes back to the classic argument of the Federalists vs. the Anti-Federalists, an issue that goes back to the founding fathers.

pixelpusher220 (profile) says:

Re: Re: Re:3 How does this happen?

Based on this definition, other things that violate the constitution:

Social Security
Medicare
The Hyde Amendment banning federal funds for abortion

3 things you can’t say you’re against and get away with it politically.

Some things are worth while even though they don’t pass the constitutional test as they better the nation as a whole. That probably means they *should* be in the Constitution, but given today’s ‘just say no’ climate of GOP objection to everything, you’d never get anything of that magnitude through. (and for the record, the Hyde Amendment is something I oppose strongly – if a procedure is *legal* it should be covered, period.)

John Gardner (profile) says:

Re: Re: Re:4 How does this happen?

If the something you want is worthwhile, but is not allowed by the Constitution to be enacted at the federal level, that leaves the states to enact those things. If X program works well, then other states will copy. Competition works at the state gov level also. Pushing some one-size-fits-all on the whole country is exactly what the founding fathers were attempting to avoid when they enacted a limited-powers federal government.

CastorTroy-Libertarian says:

Re: Re: Re:4 How does this happen?

I can say im against the first 2. the Hyde Amendment i could care less,

Both are broke, mis-managed, and bloated red-tape that is a jobs program for the lazy and stupid.

If its worth while, then push your state to adopt a program, and if it works in your state the rest of us might give it a try.

Oh and nice on the GOP bashing, course I will always remember the party that rallied against the civil rights movement in the 60’s (oh that was the Democrats wasn’t it….. hmmmm yup sure was) Sorry but both party’s are not looking to the good of the nation, only the good of themselves and their “special” interests.

Anonymous Coward says:

Re: Re: Re:5 How does this happen?

Oh and nice on the GOP bashing, course I will always remember the party that rallied against the civil rights movement in the 60’s (oh that was the Democrats wasn’t it….. hmmmm yup sure was)

Nope, it was the Republicans. Presidents Kennedy and Johnson were both Democrats. Their opponents, Nixon and Goldwater (not exactly the biggest supporters of civil rights), were Republican.

btr1701 (profile) says:

Re: Re: Re:4 How does this happen?

> Based on this definition, other things that
> violate the constitution:

> Social Security
> Medicare
> The Hyde Amendment banning federal funds for
> abortion

Yes. Those are also unconstitutional. As is the Department of Education, Health and Human Services, Housing and Urban Devlopment… the list goes on.

You’re apparenlty just discovering that the federal government has gone off the reservation and been operating almost as a rogue power for the better half of the last century.

The Constitution means nothing any more. There’s nothing in it that will stop the government from doing what it wants. Everything from the Patriot Act under the last administration to this health care debacle is patently unconstitutional but if the politicians want it, they get it, and the courts are complicit in it by rarely (if ever) standing up to them.

Hell, we just had a congressman in Florida this last week admit on camera at a town hall that he flat out doesn’t care what the Constitution says. At least his honesty is refreshing. He’s only saying out loud what anyone with a brain has known for years.

btr1701 (profile) says:

Re: Re: Re:6 How does this happen?

> > Yes. Those are also unconstitutional.

> I think it is the courts that make that decision, not you, and
> they disagree. Delusions of grandeur, much?

Becoming a justice isn’t some magical process that suddenly imbues them with power and wisdom beyond the abilities of the rest of us. They’re just men and women like everyone else and when they declare the Constitution says something that it clearly does not (or says the exact opposite), then they’re clearly wrong. Their decisions may have the force of law but they’re not infallible. If they were, the Court would never contradict itself, would it?

After all, the Supreme Court once ruled that black people weren’t fully human and that slavery was constitutional. They kinda blew that one, didn’t they? They’ve been wrong before and they’ll be wrong again and as a citizen, I have every right to point it out when it happens and (your ad hominems aside) doing so is not “delusions of grandeur”.

Anonymous Coward says:

Re: Re: Re:7 How does this happen?

They’re just men and women like everyone else and when they declare the Constitution says something that it clearly does not (or says the exact opposite), then they’re clearly wrong. Their decisions may have the force of law but they’re not infallible.

Unlike yourself, eh?

They’ve been wrong before and they’ll be wrong again and as a citizen, I have every right to point it out when it happens and (your ad hominems aside) doing so is not “delusions of grandeur”.

And as a citizen you also have the freedom to be wrong and suffer from delusions of grandeur. Congratulations.

Anonymous Coward says:

Re: Re: Re:7 How does this happen?

“After all, the Supreme Court once ruled that black people weren’t fully human…”

Really? I was aware of them not being considered legal “persons” at one time, but I was unaware that the Supreme Court had ruled them to not even be human (a biological designation). Citation please, or I’m calling “bullshit”.

btr1701 (profile) says:

Re: Re: Re:4 How does this happen?

> and for the record, the Hyde Amendment is something
> I oppose strongly – if a procedure is *legal* it
> should be covered, period

Huh?

Just because something is legal doesn’t mean you have the right to force your fellow citizens to pay for it.

The 2nd Amendment guarantees the right to bear arms but that doesn’t mean you’re entitled to a free shotgun at taxpayer expense.

btr1701 (profile) says:

Re: Re: Re:4 How does this happen?

> Some things are worth while even though they
> don’t pass the constitutional test as they better
> the nation as a whole.

So you’re basically an “ends justify the means” kinda guy, huh?

As long as we’re making the nation “better as a whole”, it’s okay to flat-out ignore the supreme law of the land. That about sum it up?

Just one question: whose definition of “better as a whole” are we going with when ignoring the Constitution?

btr1701 (profile) says:

Re: Re: Re:5 How does this happen?

> Federal law overrides state/local law.

Only when it comes to the powers granted in the Constitution. If the Constitution gives the federal government the power to regulate or enforce something (counterfeit currency, copyright, etc.), then yes, federal law trumps state/local law. But if its a power *not* granted to the federal government (education, health and safety, etc.) then state/local law is supreme.

That’s the federalist system that was set-up by the founders when they wrote the Constitution. It’s sad that most of our citizens don’t understand that anymore and just believe that “federal law is always supreme”.

LostSailor (profile) says:

Re: Re: Re: How does this happen?

It allows the federal government to mandate that you purchase a service from a private company or payment of a fine.

The Militia Act of 1792 required all able-bodied men from ages 18 to 45 to “provide himself” with a musket, ammo, and other equipment. Or, in other words, to purchase a specific thing at your own expense. Since this was enacted by a government made up of many of the Founding Fathers, you’d think they’d know whether it was constitutional or not.

George Washington didn’t seem to think it was unconstitutional. You going to argue with the father of our country?

CastorTroy-Libertarian says:

Re: Re: Re:2 How does this happen?

Your correct, they did pass this, and signed for by George Washington himself.

What you left out or did not know:
this act was in direct relation to the Constititutionally granted power (to the Federal Government) for War and Defence and allowed for the Federal Government (Executive Branch) to bring some order to the Militias maintained by each state, and allowed to grow the army quickly in case of invasion (those pesky red-coats).

So it was passed to give the Federal Government the ability to fullfil its role as assigned by the Constititution.

what Role is healthcare in relations too?

Thanks for bringing that Act though, i had not thought about how it related.

John Gardner (profile) says:

Re: Re: Re:3 How does this happen?

you also forgot to mention that the act GW signed did not mention the method to which the militia man “provided himself” the musket – he could have inherited it, traded for it, purchased it, or any other way I’m currently forgetting.

Health insurance can really only be acquired via purchase.

LostSailor (profile) says:

Re: Re: Re:3 How does this happen?

Others have brought up the commerce clause as support for health insurance reform. Most legal scholars I’ve read on this subject are pretty well agreed that it will easily pass a challenge on constitutional grounds.

This was meant to address the notion that the government can’t “force” you to purchase a product or service.

It’s akin to people objecting to answering questions about race on the census form because “it’s not in the constitution.” Questions about race have been asked since the first census in 1790.

btr1701 (profile) says:

Re: Re: Re:4 How does this happen?

> Others have brought up the commerce clause as
> support for health insurance reform. Most legal
> scholars I’ve read on this subject are pretty well
> agreed that it will easily pass a challenge on
> constitutional grounds.

That’s only because the courts have already bastardized the Commerce Clause so far beyond what it was originally intended to do that yes, based on current Supreme Court precedent, which basically says that a person’s mere existence affects interstate commerce and that therefore the federal government has unlimited jurisdiction, the health care bill will probably pass muster in the lower courts.

What will be interesting to see is whether the current Supreme Court, with its 5-4 conservative majority– will take the opportunity to overturn some of those precedents and reign in the federal government, which is currently operating so far beyond the original intentions of the founders and the document they created, that they would not even recognize it, if they could somehow be brought forward in time and have it shown to them.

Anonymous Coward says:

Re: Re: Re:3 How does this happen?

one problem, Health Insurance can not be bought across state lines

Um, my health insurance company is out of state.

and the Commerce Clause was designed for the Federal Government to make sure states did not tax each others goods (like tariffs). So it would be a huge stretch to get it under that clause.

You apparently don’t know much about how the courts have ruled on that, do you?

btr1701 (profile) says:

Re: Re: Re:2 How does this happen?

> I am amazed at how many people are against a
> mandate that makes people get health insurance
> and have no qualms whatsoever about ‘forcing’
> people to have CAR insurance.

No one forces you to have car insurance. You’re perfectly free to choose not to own a car or to drive one on the public roads. If you walk, bike, or take the bus everywhere you don’t have to buy car insurance at all.

btr1701 (profile) says:

Re: Re: How does this happen?

> How does healthcare infringe on your rights.

It infringes in the sense that regulating health care to the extent of forcing every citizen to purchase a good or service, whether they want it or not, is beyond the powers of the federal government, which are listed in Article I, Section 8.

If the federal government exceeds its constitutional authority, and in doing so affects my life negatively, then my rights under the 10th Amendment have been infringed.

moe says:

Re: How does this happen?

Hi, welcome to America. On your citizenship test you should have learned about the third branch of government – the Judiciary. That’s the check on the President and the Congress violating the constitution.

If you think a law violates the constitution and you have standing, then you can take the issue to the courts. Ultimately, the Supreme Court will rule whether or not the law (or action by the Executive branch) is constitutional. Also, the Supreme Court’s decision to not hear a case and rely on a lower court’s ruling is an indication that it doesn’t see any constitutional issues with it.

Again, congratulations on recently becoming a U.S. citizen.

harry says:

Re: Re: How does this happen?

to reply to you blatent ignorance to court injustice, just because a supreem court ruled on its constitutionality doesnt mean that there ruling was correct. one specific supreem court case deemed segregation perfectly legal. Plessy vs. Ferguson anyone? no i dont believe that the dmca is unonstitutionaly infringing on our 1st amendment rights. but nor do i believe that its legal. its illegality comes from the freedom of information act, which though focuses mainly on government laws and regulations, also insues corporations and buisnesses as well. further explained, if a person like me were to ask for specific information from said company (not infringinging on any privacy or corporate espionage act) i would then be privy to that knowledge. in this case a specific thread that said information could only be provided by using a tertiary source not only is the duty of that “company”. obviously a domain because it is a system of people exist whereas to make a profit doing a service is the def. of company, but there social contract to do so. being that are an alleged site of presenting information.

moe says:

Key phrase

There is really one key phrase in this posting: “even if done by private firms.” I understand your argument that the private firms are forced into doing this by the government, through the DMCA law. But, I think that key phrase is where it would break down in a court case.

Free speech gives you the right to say what you want, not the right to use 3rd-party services to say what you want. Although not everyone can do it themselves, it’s relatively simple to set up an http-server for hosting your content. And finding someone to set up the hardware and software for you is just a phone call away. Considering these points, I don’t see the courts striking down the DMCA in the scenario you described.

moe says:

Re: Re: Key phrase

The DMCA notices are “take down” notices and refer to the ISP (or hosting provider like YouTube) hosting the content.

If you pay for an internet access plan that permits you to host a http-server, meaning no residential accounts, then you should be fine because you’re just paying for the “pipe”. Now, if you ISP shuts off your access due to a DMCA take down notice then you might be able to make a case.

Then it depends on if the ISP acted incorrectly by shutting off your access, or if the DMCA applies to hosting and access. If the DMCA applies to access, then you might be able to make a case for the law being unconstitutional.

Ryan says:

Re: Re: Re: Key phrase

I’m not sure what you’re getting at here, but you seem to be splitting hairs. It doesn’t matter the terms of service the ISP provides to their customers, the unconstitutional restraint occurs in the interaction between government and ISPs. Essentially, the government is forcing them to take down content that resides on their servers under threat of penalty.

ISPs can take down whatever they want on their own, but it’s not constitutional for the government to mandate it in the DMCA.

moe says:

Re: Re: Re:2 Key phrase

I understand what you’re saying, and for the record I’m not a fan of the DMCA.

My argument is that it’s not a constitutional restraint because it’s not the ISP’s free speech. It’s the individual’s free speech. And, from a rights perspective, the individual’s rights aren’t being restricted because the individual can host the content themselves. The ISP isn’t required to host the content in regards to the first amendment. The ISP chooses to host content for its customers, but when the ISP is made aware that content it hosts violates the law then the ISP chooses to remove the content.

Let’s draw a comparison. Should the WikiLeaks site be allowed to host its content on ISP servers in the U.S.? For example, some of the content includes classified information which is illegal to provide without proper credentials. Is it a violation of the first amendment to require the ISP to remove the classified documents?

The DMCA requires ISPs to remove content when it receives a notice from the copyright owner that the content infringes (i.e. breaks the law). Essentially, if an ISP knowingly hosts content that infringes on copyright then it can be liable. If the law (again, as it is written) allowed the content to stay up until a court decided that it infringed, then it would severely limit the effectiveness of the law.

The law is about liability for hosting the content. An ISP generally has no reason to care whether the content infringes or not. It just employs the processes set forth in the DMCA – take it down when you receive a notice of infringement, and then put it back up when you receive a counter notice of non-infringement.

Chronno S. Trigger (profile) says:

Re: Key phrase

A private company can limit and censor anything they want. The government can not tell anyone what they have to censor or what they are allowed to say. If the third party says that you can’t say that on their site then it’s OK. If the government tells the third party that users aren’t allowed to say that, then it’s a first amendment violation.

So, yes, the first amendment allows me the right to say whatever I want on a third party site. The government can not tell me otherwise.

Anonymous Coward says:

Re: Key phrase

Maybe I don’t understand exactly how this works. If I personally hosted my fair use content, couldn’t whoever DMCA’ed it in the first place then send me a take down notice and now if I don’t take it down I’m liable as both the creator and the hoster of potentially infringing content? That seems like putting myself into even more of a jam than previously.

moe says:

Re: Re: Key phrase

Yes, you understand it correctly. And the issue isn’t whether or not you should be allowed to put up content that infringes on someone’s copyright. The law (as it’s currently written) is pretty clear that you can’t do that.

The issue here is that what you’ve put up doesn’t infringe on someone’s copyright, or at least you believe that it doesn’t. Under the DMCA, the copyright owner issues a take down notice to the ISP. The ISP is going to take it down until you respond with a counter notification of non-infringement.

If you host your own content and receive a take down notice then it’s up to you to take it down. If it doesn’t infringe, or you’re making a stand on free speech grounds, then you leave it up and let the copyright owner take you to court.

If the content you put up doesn’t infringe on copyright in the first place, then you’re not in any jam at all — even if you host it yourself. And that’s the point I was trying to make. I don’t see these circumstances being effective in using the first amendment to strike down the DMCA because you have the ability to host your own content and decide for yourself whether you’ll comply with a valid or invalid DMCA take down notice.

But, now that we’ve talked about it more, I wonder if the legal costs required to defend against an invalid DMCA take down notice would be enough grounds to declare the current process — take it down or else — unconstitutional?

Ryan says:

Re: Re: Re: Key phrase

If the content you put up doesn’t infringe on copyright in the first place, then you’re not in any jam at all — even if you host it yourself.

But you have to take down the content before that is established by a court or face liability – prior restraint.

If you host your own content and receive a take down notice then it’s up to you to take it down. If it doesn’t infringe, or you’re making a stand on free speech grounds, then you leave it up and let the copyright owner take you to court.

That’s like saying that you can say anything you want without the 1st amendment, you just might end up getting imprisoned or killed by the government. The DMCA explicitly makes third parties liable for not censoring content prior to it being declared infringing. How the hell are they supposed to determine that themselves with a quick glance?

moe says:

Re: Re: Re:2 Key phrase

You don’t face liability unless the content is actually infringing. If you host the content; receive a take down notice; refuse to remove the content; and a court decides that it didn’t infringe on copyright, then you don’t face any liability.

Regarding your second statement, my argument is that the DMCA says that an ISP will be found liable if it ignores a take down notice and the content is later declared to be infringing. The ISP makes a choice – follow the DMCA process at minimal cost or incur a huge cost to employ a team of experts in copyright law and review the content when you receive a notice.

I don’t see how that restricts the individual’s right to free speech. It’s not stopping the individual from hosting the content, it’s just stopping the individual from hosting the content on the ISP’s servers.

Consider this example: You write a fan fiction comic and take it to a book store. They agree to rent you a table so you can give it away for free. Then Marvel calls the book store and says the comic infringes on its copyright. Will the book store be liable under copyright law if a court later decides that it does infringe on Marvel’s copyright and the store continued to rent you the table and you continue to give away the comic after Marvel notified them?

If the answer is, yes – the store is liable, then I see the DMCA doing the same thing. If the answer is, no – the store is not liable, then the DMCA needs to change. But, not on the basis of the first amendment – on the basis of application of copyright law.

Again, I don’t agree with it, but I also don’t see a first amendment case in there.

PaulT (profile) says:

Re: Re: Re:3 Key phrase

“If you host the content; receive a take down notice; refuse to remove the content; and a court decides that it didn’t infringe on copyright, then you don’t face any liability.”

You will still have to prove that it’s not infringing – at your own expense. Defending yourself in court is not cheap. It would also be nice if the companies issuing fake takedown notices actually faced the perjury penalties that are meant to be part of the law, but few do.

“I don’t see how that restricts the individual’s right to free speech.”

Quite simple. Although there’s nothing from stopping an individual from hosting their own content, most people do not know how to set up a web server. They will have none of the expertise to make the server secure and reliable, and will incur extra costs in doing so. They will become the personal targets of the DMCA notices, and will incur the court costs when they refuse to remove the content they know is not infringing.

This puts up a barrier that deters individuals from exercising their free speech rights,and thus restricts it.

moe says:

Re: Re: Re:4 Key phrase

So, you’re saying that I can go down to a print shop and drop off something to be printed. And, they’ve been notified by the copyright owner that my order infringed on their copyright. But it doesn’t matter, they have to print it for me anyway? And if they don’t print it for me then my free speech has been restricted?

Sure, I could print it out at home but I don’t have the money or expertise to buy and install a printer that will print and bind my publication. Doing so would require me to purchase additional equipment, hire an expert to set it up for me, and make me the personal target of copyright lawsuits. So, the the print shop has to do it for me even though it will make them liable for infringing copyright; and I’m still liable anyway.

Does that make sense? Not to me. So why should ISPs have to do the same thing?

PaulT (profile) says:

Re: Re: Re:5 Key phrase

That’s what safe harbour laws are for – a service provider should not be held responsible for the content its users are creating. If your access to free speech is removed via said providers, and your only alternative is to go through great trouble and expense to set up your own platform, then yes you free speech is restricted.

Your print shop example is rather irrelevant. The shop isn’t merely providing space for the content, it’s participating in the physical creation of a potentially infringing product. Therefore, it bears some responsibility, while an hosting provider should not as it’s not actively participating in any infringement. A more relevant analogy would be whether or not DHL should be held responsible if you send a counterfeit product through their network – no, they should not.

moe says:

Re: Re: Re:6 Key phrase

And what about my fan fiction comic example a few posts up?

The DMCA says that the ISP isn’t liable until it has been notified (there’s the safe harbor). But after the ISP has been notified then it can be held liable if it doesn’t remove the content.

There is no requirement for ISPs to remain involved. As a business decision, they’ve decided to just pull the content instead of incurring the cost of reviewing it and risking the liability if their decision to leave content up was wrong.

My contention is the requirement for ISP participation. I’m just not convinced that free speech involves more than 2 parties – the individual and the government.

Modplan (profile) says:

Re: Re: Re:7 Key phrase

Except this does involve the government, as it’s they’re law that dictates to ISP’s that they must remove content upon notification which undermines fair use via the lack of due process to establish whether said work is in fact protected, and by extension may be restricting of the right to free speech which fair use helps to maintain in how it interacts with copyright privileges granted to artists/companies.

The Infamous Joe (profile) says:

Re: Re: Re:7 Key phrase

I dunno, moe, I think you’re trying too hard. (Hopefully playing Devil’s Advocate)

If the government creates a law that compels Party A to limit the speech of Party B, then, in effect, the government has limited the speech of Party B.

If a cop hires a civilian to break into my house and search it for evidence because he could not obtain a warrant, my 4th Amendment rights have still been violated.

This *could* be resolved if the burden of proof was raised to much higher than a mere accusation, in my opinion, but as it is it does appear to violate speech.

This does not even mention that all this speech is being repressed solely for a civil matter, which seems asinine when compared by weight. Speech > Business Model (imo, of course)

PaulT (profile) says:

Re: Re: Re:7 Key phrase

“And what about my fan fiction comic example a few posts up?”

In that example, the store is providing you with a table for the express purpose of selling the comic, so they’re likely to have much more direct control over it than a major internet site. They would be aware of the purpose of this single transaction, and thus potentially be more liable than a site like YouTube or WordPress, which handle thousands of automated transactions every minute.

Regardless, it’s my belief that the person responsible for the actual infringement should be the only one in danger of prosecution, so they should ideally be in the clear IMHO.

“The DMCA says that the ISP isn’t liable until it has been notified (there’s the safe harbor). But after the ISP has been notified then it can be held liable if it doesn’t remove the content.”

It also states that a falsely issued takedown notice should be regarded as perjury. The lack of prosecutions on this issue is one of the major problems – major corporations taking a scattershot approach to takedowns with no fear of reprisal if the content is not infringing.

The problem is also one of balance. The hosting providers stand to lose a lot more from a successful prosecution than they would get from an average consumer, so they will remove any content claimed to be infringing without question to protect their business. This skews access to free speech away from individuals and toward corporations. Not a good thing.

“As a business decision, they’ve decided to just pull the content instead of incurring the cost of reviewing it and risking the liability if their decision to leave content up was wrong.”

…and thus removing the access to free speech that they would have provided. Exactly my point.

“I’m just not convinced that free speech involves more than 2 parties – the individual and the government.”

Again, if said speech requires a 3rd party for the majority of people to have free access to it, then it clearly does.

moe says:

Re: Re: Re:8 Key phrase

For what it’s worth, I agree with you on all points. I’m just looking at the way the laws and amendments are written. IMHO, the first amendment case isn’t in there using these arguments.

Although, as internet access and use continues to become predominant then it might become more difficult for the government to ignore your last statement about permitting the majority of people to have free access.

chris (profile) says:

Re: Key phrase

Free speech gives you the right to say what you want, not the right to use 3rd-party services to say what you want… Considering these points, I don’t see the courts striking down the DMCA in the scenario you described.

that is the legal question for the courts and scholars: is my website a publication, like a newspaper, with constitutional protection? is my website an extension of my own free speech? is my website bound by the agreements i make with a service provider in order to host it? if so, do those agreements violate my constitutional right to free speech?

the DMCA says it is #3, and that makes sense as long as you do not value free speech. others, myself included, value free speech and therefore disagree.

in the end, it doesn’t matter. you can’t censor the internet for very long. it will just evolve and make it pointless.

Although not everyone can do it themselves, it’s relatively simple to set up an http-server for hosting your content. And finding someone to set up the hardware and software for you is just a phone call away.

in time this will be a moot point. services and technologies like freenet, i2p, and tor hidden services will improve to the point that they easy enough to use that anyone will be able to make use of them and at that point there will be no way to stop free speech, or piracy, or anything else.

that’s the problem with laws made by lawmakers that don’t understand technology: changing a law is *WAY* harder than changing a technology.

moe says:

Re: Re: Key phrase

Regarding your website being like a newspaper or an extension of your free speech — all well and good. But, just because your website is one or both of those things, it doesn’t mean a third party has to allow you to use their assets and services.

The constitution says that you are allowed to do these things. But, it doesn’t require third parties to enable you to do them.

Anonymous Coward says:

Re: Key phrase

Free speech gives you the right to say what you want, not the right to use 3rd-party services to say what you want.

part 2 of your sentence is not true, as freedom of the press (i.e. the mechanical printing press, not an institution) was originally intended to protect publishing in the same manner as speech.

so yes, i have the right to use a 3rd party service to say what i want. in 1776 that party owned a printing press in town, in 2010 that party owns servers on the other side of the country.

so yes, the tension and conflict between the dmca and the first amendment are quite real.

chris (profile) says:

Re: Re: Key phrase

part 2 of your sentence is not true, as freedom of the press (i.e. the mechanical printing press, not an institution) was originally intended to protect publishing in the same manner as speech.

so yes, i have the right to use a 3rd party service to say what i want. in 1776 that party owned a printing press in town, in 2010 that party owns servers on the other side of the country.

well said 🙂

moe says:

Re: Re: Key phrase

I think you’re making my case for me.

Using your example of the physical printing press, let’s assume that you don’t have your own printing press. If you wanted to reproduce a something on the local printer’s press, someone notified him that what you want to do will violate a copyright, and that he will be held liable if he allows you do it, then there is nothing about freedom of speech or freedom of the press that requires him to let you use his press.

However, if you have your own printing press, then you can do as you please unless the court decides that you violated a copyright.

Like I said, you’re free to host the content on your own server and leave it up as long as you like. But, the ISP isn’t required to host your content if that content might open it up to liability. And if the ISP decides to take it down, it doesn’t violate your first amendment rights.

moe says:

Re: Re: Re:4 Key phrase

You’re right, in that the DMCA applies to both companies and individuals.

When you receive a take down notice, you have the choice to remove it or not. If you choose not to remove it, and it’s later found to be infringing on copyright (i.e. not fair use), then you can be held liable. ISPs have decided to just take it down because it’s not worth the risk to review items and make a judgement call to leave content up. It would cost too much to hire a team to do it, and even then they might be wrong and the ISP would still be liable.

Again, the liability only comes into play if the content actually infringes on copyright. If it’s fair use, there is not liability.

Modplan (profile) says:

Re: Re: Re:5 Key phrase

When you receive a take down notice, you have the choice to remove it or not. If you choose not to remove it, and it’s later found to be infringing on copyright (i.e. not fair use), then you can be held liable. ISPs have decided to just take it down because it’s not worth the risk to review items and make a judgement call to leave content up. It would cost too much to hire a team to do it, and even then they might be wrong and the ISP would still be liable.

Again, the liability only comes into play if the content actually infringes on copyright. If it’s fair use, there is not liability.

Of which there are several problems you haven’t recognised the magnitude of, yet oddly mentioned:

This inherently stacks things in favour of the accuser, against most ideas of due process and fair trials. With no requirement to establish whether a work or use of a work comes under fair use before content has to be taken down, companies filing DMCA notices have little incentive to think twice about sending them, even in situations where it may be obvious that fair use would apply and such a requirement would therefore violate freedom of speech.

All incentives lean towards content hosters (not just ISP’s but service providers like Youtube and individuals hosting their own) to remove content, as there are many cases where fair use may be more complex to figure out. To expect a host to be that proficient in figuring out when such content is fair use, or to even want to put themselves in such a difficult position which may entail large risk is a seemingly stupid burden to place on a private, disinterested entity. You’re passing a large part of what should be the job of the courts onto service providers to even get the initial chance to defend yourself.

If fair use is considered an extension or protection of free speech in how it interacts with copyright, then a system such as this undermines free speech. All incentives are to service providers and individuals to remove content straight away as a means to come under safe harbor, due to the kind of risk and burden you’re placing on what is fundamentally the wrong party to be putting any of that responsibility on. Fair use is a matter that should be decided by the courts, especially in how complex deciding such a thing can be.

This is without taking into consideration the the raising of costs this creates should someone want to argue their case, due to the affects of the above.

Ergo, stifling free speech.

moe says:

Re: Re: Re:6 Key phrase

You’re right – it does stack the deck in favor of the accuser. And the DMCA has a provision to treat false take-down notices as perjury, but no one is enforcing that – there is a problem.

You’re also right that determining the copyright status of content is too large a burden to put on an disinterested entity. The DMCA basically punted the issue so the government didn’t have to piss off too many people too much.

And finally, this is where Congress got especially crafty. They basically built in the provision for perjury (mentioned above) and the process for filing a counter-notification of non-infringement so that they could point to the law and say, “see, we’ve taken into account both sides.” So, in practice we have a system where copyright owners blast out notices because they won’t be charged with perjury.

And in cases where someone wants to fight, they file a counter-notification and the content goes back up. Essentially, nothing changes except there’s about a week when the content was offline.

And that’s the system that we operate in today. The law is written in such a way that, IMHO, a successful overturning of the DMCA based on the first amendment can’t be made using these arguments.

But, as you eluded to at the end, perhaps the financial burden required to actually defend yourself in the system is the route that could be used to overturn the DMCA based on the first amendment. I agree – I mentioned it in a couple of my posts, too.

rwahrens (profile) says:

Re: Re: Re: Key phrase

More to the point, the government cannot FORCE the owner of that printing press to refuse to print your job. It is the right of the owner of the press to make that decision, NOT the government. And the DMCA sets up the conditions that force the owner to do that, so he is not making a free and open decision.

Thus, the DMCA is violating your free speech rights through prior restraint BY THE GOVERNMENT.

moe says:

Re: Re: Re:2 Key phrase

But that’s not the case. The DMCA doesn’t force the ISP to remove the content. It just says that if the ISP doesn’t remove the content and it’s later found to be infringing, then the ISP is liable.

This is a business decision by the ISP – it’s cheaper to just follow the process than it is to set up its own internal content review process.

Having said that, and depending on the market, there could be a sound business plan for an ISP that specializes in hosting content that exists in the grey area of copyright/DMCA law. The basic pitch to customers being:

-We’ll host whatever you upload

-When we receive a DMCA take-down notice, we’ll notify you so that you can prepare a counter-notification of non-infringement ASAP

-We’ll review the content ourselves and make an internal decision about whether we’re going to pull it.

-If we decide to pull it, we’ll follow the DMCA process for reinstatement when we receive your counter-notification of non-infringement.

btr1701 (profile) says:

Re: Re: Key phrase

> so yes, i have the right to use a 3rd party
> service to say what i want. in 1776 that party
> owned a printing press in town

I’d love to see you cite a case that says you have a right to use my printing press (or ISP or TV station or whatever)whether I like it or not. Especially considering there are, in fact, cases that say the exact opposite.

chad holbrook (profile) says:

How would this apply to forums?

I don’t disagree with anything here (except for moe being rude). I’m just curious how this line of thought would impact postings on forums, bbs systems, and comment sections like this.

If it ruled that the DCMA violates free speech and it is illegal for companies to limit free speech. Does that imply that my local motorcycle forum, indie music bbs, or this comment system cannot remove offending posts?

If I were to have gotten mad at moe’s post above and called him various names (some true, some false, all very funny), would the mods of this site have the legal ground to censer my offending (at least to moe) posts? Now, I understand that moe would have the legal right to sue me for defamation of character, libel, and internet tomfoolery (covered by the DCMA, I think). However, if he were to send a nasty-gram to the site demanding that the post be removed, and if the courts ruled that outside of a conviction a company must protect free speech does the site have legal ability to remove or edit the post?

Taken one step further changes things. Suppose there was a hate group that gets on a diversity site. If it’s protected, it’s protected. I’m just wondering what happens when the pendulum swings the other way .It may not be so bad, but it will have consequences and it is worth talking about. Honestly, I’m in favor of more free speech (including moe’s) than I am of the DCMA and it’s heavy handed goals.

I think you get the idea of my question and I can’t think of another way to insult moe in a passive aggressive way.

Thanks for taking the time to read this.
-chad

senshikaze (profile) says:

Re: Re: How would this apply to forums?

and you would be correct, except that if the ISP safe harbour laws violates the first amendment, then chad holbrook is saying that, theoretically, it could expand to other forms of censoring.

But, you are right, third parties are not bound by the first amendment with their own property (ie: services/servers/websites)

Anonymous Coward says:

Re: How would this apply to forums?

If it ruled that the DCMA violates free speech and it is illegal for companies to limit free speech. Does that imply that my local motorcycle forum, indie music bbs, or this comment system cannot remove offending posts?

No. It just means that the government cannot punish you for not doing so.

Anonymous Coward says:

Thus far no court decision at the district court and appellate court level have lent any support to the position advocated by Ms. Seltzer. It is not at all surprising that she holds the views she does given her participation in the Berkman Project and with the EFF. However, the notice and counter notice provisions of the DMCA appear to comport with due process as construed by case law, and upon the filing of a counter notice the blocked content must be restored in the absence of the party filing the original notice pursuing resort before the courts.

The headline to this article should have reflected that an academic has written a paper why she believes there is a legal problem.

Anonymous Coward says:

At its core, all anti-circumvention provision amendments to copyright law presume to tell people what they are and what they are not allowed to think, since even remembering something is technically a form of copying it, and if what a person happens to remember is a copyrighted work that is protected by some sort of encryption, merely recalling it to yourself is a violation of the anti-circumvention provision. Of course, without such a provision, remembering it would even at worst fall under a “personal use” category and be exempt from infringement. The DMCA supposedly has exemptions for fair use, but they are notroutinely utilized, so the whole thing really needs to be thrown out and rewritten from scratch.

Free speech is important, but freedom of thought is even moreso.

curly says:

@ moe

ya know your country is toileting
ya know that ACTA won’t be rattified world wide
ya know you own toomuch debt
ya know its coming don’t you?

AND like i say…copyright is about laziness plain and simple
it also is about the greed associated to the laziness.

95 years plus life of a 90 year old actor or musician or writer?
WHAT a joke
society gains nothing you take take take
and so does
your kids
and there grand kids.

heresa deal drop copyrights to 14 years and start givign life sentances to violators

you will see everyone then fall inline and go for tons a stuff at the 15 year mark and the 300000 morons that bought into ipads will buy your crap form 1 to 14 years

plain and simple
YOU SUPPORT LAZY GREEDY ECONOMIC TERRORISM on the world

moe says:

Re: @ moe

I appreciate the artistic response.

However, I don’t agree with DMCA and copyright in their current forms. I’m just saying that I don’t see a legitimate case for violation of the first amendment rights.

I think there are options in there – like the financial burden of actually bringing suit to defend yourself – but I don’t think this exact method will bear fruit.

curly says:

oh and hten you will find it far easier to get treaties made

title says it all
when the copyright terms are more sane its esy to get treaties made

but when people of other countries start questioning what they get for granting you the right thats RIGHT i said RIGHT
of copyright you begin to lose no matter what psycho bable you use, no matter how much lawyerness you try , it will fail.

YOU cannot live in a society where everything you do is controlled, its called tyranny no matter what you call it and yourselves and thats what also this begets.

remember remember the 5th of november

senshikaze (profile) says:

Re: oh and hten you will find it far easier to get treaties made

The gunpowder, treason and plot.
I see no reason
Why the Gunpowder Treason
Should ever be forgot.
Guy Fawkes, Guy Fawkes, t’was his intent
To blow up the King and Parli’ment.
Three-score barrels of powder below
To prove old England’s overthrow;
By God’s providence he was catch’d (or by God’s mercy*)
With a dark lantern and burning match.
Holla boys, Holla boys, let the bells ring.
Holloa boys, holloa boys, God save the King!
And what should we do with him? Burn him!

curly says:

all htis moeness is mooted by the simple fact

your entire existance and need to be what and who you are is by lazziness, as i said when copyrights have more sane levels hten ask for stricter laws, till then were all going to ignore lawyers like you that all your doing is making life worse for everyone on the planet and leeching off us.

YOU MAKE me sick.
YOUR EVIL
YOUR LAZY
YOUR USELESS TO SOCIETY.

what have you contributed to society the fork?
ya so it can ram it up its ass at will great now we has a spoon
OH my what do we do we dont have money for the books on how to use this thing

curly says:

@53

no infact i can hang anyhting i want outside the window of my rented room and the landlord cant do nothing about it unles si say defamatory remarks aobut him or someone that is.

I COULD put up
in my opinion all actors are gay fruit of the loop fairies that need o be spoon feed by society cause without this they would all die of starvation

my landlord can get bent on what he feels about it
its same for the net in fact in Canada the courts so far have agreed with me
linking is not illegal here nor are they to remarks so i could put up a flag pointing to another one that says your a stupid ass pedophile and you cant atm do shit to me

lora says:

um so that means you people are all for stolen music and art

hey if you want a free world im all for it give me free movies free music and hey maybe ill donate some art along the way why should i let my computer run 15 hours a day making art just so you no talent no good crack addicts abuse peoples art its because i make art that i dont have to depend on free welfare and you people are saying its ok to steal shoot lets get everyone on welfare tell people to stop singing tell people to stop painting tell people to stop making movies lets hop on the free government welfare side because people are all for free stuff hey its free and you people love stolen goods the dmca allows artists to have some control over their art that we labor on and you dont its because of you i have to slap big watermarks all over my stuff

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