Rather Than Attacking Section 230, Why Aren't Trump Supporters Angry About The DMCA That's Actually Causing Issues?

from the you-guys-got-it-all-wrong dept

A few weeks back, we wrote about how one of Donald Trump’s tirades over Twitter “moderating” him, in which he blamed Section 230, was totally misplaced. The actual issue was about copyright and Section 512 of the DMCA. That was a case where a copyright claim took down a Trump campaign video after a copyright holder claimed it infringed.

Last week, we saw copyright again cause trouble in Trump world — and again, Trump’s fans blamed Twitter and Section 230 rather than the problems of the DMCA instead. This time, it involved a well-known Trump mememaker going by the name Carpe Donktum, who makes generally lame “MAGA memes.” Early last week, Twitter permanently shut down his account, and all the Trumpalos went nuts. A writer for the Federalist, Mollie Hemingway, laughably called it “election interference” by Twitter:

Except, as you can even see in that very screenshot that Mollie (who apparently can’t even read the screenshots she’s posting), Twitter shut down his account for repeated infringement under the DMCA. Twitter later confirmed exactly that.

?per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives. The account was permanently suspended for repeated violations of this policy.?

Donnie Jr. got similarly angry, and had an odd interpretation of what “public domain” means:

Now, we can argue whether or not the copyright claim was valid. I think for most memes, even Donktum’s incredibly stupid ones, he would have strong fair use claims. But as we’ve seen in cases like the BMG v. Cox case, courts are now saying that the repeat infringer policy is not for proven infringement, but merely alleged infringement.

Even worse? In the Copyright Office’s recent report on Section 512 of the DMCA, it supported that viewpoint, that the DMCA not only requires a repeat infringer policy, but that it should be based on repeated accusations of infringement, even if those accusations are not accurate.

Given that, Twitter has little choice but to shut down Donktum’s feed, and people blaming Twitter or Section 230 for this (or idiotically calling it “election interference”) have misplaced their blame. They should, instead, be concerned about Section 512(i) of the DMCA and the series of recent cases that say it is based on accusation, and not on any adjudication of infringement. And, similarly, they should also be asking why the Copyright Office recently supported this censorial definition in the years-long study it did on Section 512 and just released a little over a month ago. From that report:

… any definition must be consistent with the statutory criteria that repeat infringer means repeat alleged infringer, not repeat adjudicated infringer.

And then this week, we had yet another example, in which Twitter removed an image from a Trump tweet after the NY Times filed a DMCA takedown notice:

The original tweet by Trump issued on June 30, showed a meme that read ?In reality they?re not after me they?re after you I?m just in the way? with Trump?s picture in the background.

The background picture was taken by a New York Times photographer, to accompany a feature article on then presidential candidate Trump in September 2015.

Twitter now displays the message ?This image has been removed in response to a report from the copyright holder,? in place of the tweet.

You can see what it looks like now:

As I write this, the usual crew hasn’t freaked out yet, but I fully expect that when they do, they’re likely to blame Twitter or Section 230, neither of which are even remotely responsible here.

But while Trump’s fans in Congress are running around trying to change Section 230 with a new bill every other day, why aren’t any of them looking at fixing this part of the DMCA that is actually leading to censorship (unlike what’s happening with 230)?

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Comments on “Rather Than Attacking Section 230, Why Aren't Trump Supporters Angry About The DMCA That's Actually Causing Issues?”

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This comment has been deemed insightful by the community.
Anonymous Anonymous Coward (profile) says:

Because it doesn't fit their agenda

§ 230 is a more likely target because it has a higher potential to control speech they like/dislike. Attacking (to the rest of us fixing) § 512 would do little in terms of speech they like/dislike but might harm those who so zealously wish to protect their IP (and make campaign contributions), which is now seen as our greatest resource (and under current law our most endurable resource though that durability could do harm to generating new IP) whether the claimant owns (or has been granted authority to act for the owner) that IP or not.

If the IP is not producing income for the IP maximalist (or someone posing as an IP owner) then it is blatantly an illegal use (to them), and false claims are seen as a boon to the system rather than a detriment. Culture be damned as it is a better resource if owned, at least in the minds of the IP maximalists and their supporting politicians.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

Their younger (30-ish and under) fanbase knows pretty well, even if most don’t really understand it.

The older politicians and journalists should also know that fair use is adjudicated per case after multi-year engagements with the courts.

Some are ignorant. Some are disingenuous. Some have this cognitive switch where laws apply to you, not to me.

Koby (profile) says:

Non Legislative

It was reported by Forbes, and a number of other news outlets, that the parents of the toddlers from the video were planning on filing a lawsuit against Trump and Carpe Donktum for copyright infringement. But Trump, of course, can afford lawyers, and also Carpe Donktum had retained an attorney as well in anticiption.

I hope they do file, because it could end up establishing precedent that altering a video, especially for political purposes, is commentary protected by Fair Use. Political memes could gain permanent protection, and without legislation. And I think that we can all agree that we’re better off without and congressional wheeling and dealing.

Scary Devil Monastery (profile) says:

Re: Re: Non Legislative

"Fair use should be codified obviousness, full stop."

As PaulIT says it and I hereby clarify, "Fair Use" has literally NO objective tells. It’s 100% subjective which means it’s status as "Fair Use" will vary depending on who observes it.

It’s just one of those many major whoppers in the basic assumptions about copyright law which makes it so very different from any other type of legislation where you’d consider it insane if the status of an action would be held to be criminal or not entirely depending on the subjective judgment of it.

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

Re: Non Legislative

Something something dancing baby case.

Something something the copyright office claims fair use only exists as a defense in court.

Something something the DMCA is flawed, but the law doesn’t let platforms to think about it.. they have to act.

Then there is the Judge who ruled for RightsCorp et.al that accusations are enough to trigger the repeat infringer policy of private companies & if they don’t do it just right they end up liable for a whole bunch of money.

Idiot got several DMCA complaints.
Idiot hit the threshold clearly spelled out in the rules, that no one ever reads & in the multiple times he needed to reread and agree to follow the rules before his account would be turned back on.
Idiot then did it again.

Oh its because they hate trump blah blah blah…
No, its because we have some of the most fscked up laws b/c the copyright cartel owns congress & gets stupid laws that never punish them when they screw up but impose insane draconian punishments for not doing the bidding of someone merely CLAIMING to be a copyright holder.

Political memes aren’t special.
We don’t need more carve-outs in the law unless they decide to define "repeat infringer" as adjudicated in a court (which the copyright office & the cartels do not want) so it would be like the rest of the legal system.

So many people are focused more on OMG THEY GOT TRUMP completely ignoring the 100,000,000 times this has happened to other people on the same grounds, somehow imagining it is worse for the god emperor than regular people.

This comment has been deemed insightful by the community.
Bloof (profile) says:

Because it’s not part of the Fox News issued talking points and never will be. The DMCA benefits traditional media companies like Fox, so it’s not going to pop onto their radar as something to change unless they work out a way to make it worse. Smaller time republican journalists and talking heads wont mention it as they all want to get Fox gigs down the line as the next stage of the grift.

Stephan Kinsella (profile) says:

The DMCA is not the problem; copyright is

"Twitter has little choice but to shut down Donktum’s feed, and people blaming Twitter or Section 230 for this (or idiotically calling it "election interference") have misplaced their blame. They should, instead, be concerned about Section 512(i) of the DMCA and the series of recent cases that say it is based on accusation, and not on any adjudication of infringement. "

The reason there is concern is that (a) there is copyright liability in the first place, and (b) sometimes secondary liability. That the DMCA does an imperfect job of exempting platforms from secondary liability, doesn’t mean that the DMCA is the problem here. The problem is copyright law itself. As Burke said, "the thing! the thing! The thing itself is the abuse!"

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

Copyright law is the disease, yes. But nobody will ever convince enough lawmakers to “cure” it — not in your lifetime, anyway. Getting rid of the DMCA’s takedown provisions, or at least making the system notice-and-notice instead of notice-and-takedown, will be the best we’ll ever hope to achieve in that regard.

This comment has been deemed insightful by the community.
Stephan Kinsella (profile) says:

Re: Re: DMCA takedown provisions

The DMCA takedown provisions are paired with the limited exemption the DMCA provides to vicarious copyright liability. The takedown process is just the price paid for being exempt from vicarious copyright liability. If you remove the takedown process you likely remove the exemption and then start to hobble the Internet even more than copyright already does.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re: DMCA takedown provisions

If you remove the takedown process you likely remove the exemption and then start to hobble the Internet even more than copyright already does.

You’ve got to consider what the landscape was like before the DMCA. The safe harbor exemption didn’t exist, that’s true. However, if a rightsholder wanted to hold a provider liable and get content removed, they actually had to sue the provider and win.

Hollywood claimed that the lawsuit process took too long, and so there was too much "damage" suffered by the rightsholder with the content being online while the case ran its course. The extralegal, due-process-free DMCA takedown was what they wanted and giving the safe harbor exemption to the provider was the price they paid to get it.

Stephan Kinsella (profile) says:

Re: Re: Re:2 DMCA takedown provisions

"You’ve got to consider what the landscape was like before the DMCA. The safe harbor exemption didn’t exist, that’s true. However, if a rightsholder wanted to hold a provider liable and get content removed, they actually had to sue the provider and win."

I’m not a deep expert on the copyright or DMCA law so I may be wrong, but this seems inaccurate to me. You still have to sue and prove the same stuff to "win." It’s just that the DMCA safe harbor promises liability exemption to the platform so they immediately comply to make sure they take advantage of the exemption. I don’t see that it makes it easier for them to be held liable for copyright infringement at all. Do you have a legitimate legal source for this contention, or are you just some random layman nym spouting off?

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:3 DMCA takedown provisions

I don’t see that it makes it easier for them to be held liable for copyright infringement at all.

It doesn’t. In rereading my previous response though, I can see how you might have concluded that was my point. That was my error. It is my belief that the primary goal of most non-trolling IP holders is not to recover damages, but rather to maintain power and control over content availability and distribution.

A rightsholder, then (before DMCA) and now, has always had the ability to pursue litigation against the party that posted the infringing material immediately upon its posting. That has not changed. What has changed is the ability of the rightsholder to have allegedly infringing content removed quickly and without adjudication. Then, a lawsuit was required if the provider was not cooperative (and the lawsuit would most likely pursue secondary liability claims against the provider) with nothing happening until a decision was reached, with considerable expense required on the part of the rightsholder to bring the action. Now, the rightsholder has the threat of liability to wield against a provider to force content removal, at almost no cost to them.

TL;DR – Content Removal Before DMCA – lawsuit required. Heavy costs to both parties. Content Removal After DMCA – no lawsuit required. Almost no cost to a rightsholder, potentially heavy cost to a provider. Is it a surprise that most providers won’t argue a DMCA notice on behalf of a customer?

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re: Re:3 DMCA takedown provisions

"I don’t see that it makes it easier for them to be held liable for copyright infringement at all."

That’s the point, it doesn’t. But, since most cases don’t make it to court, and even if it did false takedowns will have already caused immeasurable damage to to true own way before it ever sees the inside of a court, it doesn’t have to.

Scary Devil Monastery (profile) says:

Re: Re: Re:3 DMCA takedown provisions

"…but this seems inaccurate to me. You still have to sue and prove the same stuff to "win."

mmh…people keep forgetting something here; Before the DMCA you did have to sue and win.

WITH the DMCA the allegation is automatically considered valid so it’s not a "sue to win" – effectively it’s up to the defendant to prove innocence. Failing that the defendant loses, under the DMCA. The mechanism is by the takedown requests, because failing to recognize those as valid by default is strike one in the presumptive lawsuit.

So essentially the DMCA was what made the safe harbors an absolute necessity because it effectively reverses the burden of proof – lending the mere allegation of infringement weight of law.

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Anonymous Coward says:

because theyr
‘re getting backhanders from those who keep fraudulently use the DMCA, namely the movie and music industry biggest players, the ones that refuse to join the rest of us in the C21 through fear of losing control of all they survey and millions they get through falsifying what they own and who can have it!! assholes!!

Anonymous Coward says:

It’s easier to criticise twitter or Google for removing content than do research into the problems with dmca. It ignores fair use , parody etc there seems to be no penalty for those who misuse it to censor content eg company x takes down a 3hour hour video that happens to contain 3 seconds of music,
in the background.
Far easier to accuse twitter of censoring Conservative content.
Most memes contain random images or photos
not owned by the person who just puts some text under it. There’s something strange going on on
twitch, people are getting dmca notices in the middle of a live stream if they have any music played in the background.
They are deleting old vods to avoid getting dmca takedowns in the future
Politicians don’t want to criticise dmca as it is used by big corporations music and TV company’s
which are big donors.
There’s a few mega corporations that own most TV
radio and streaming services in America.
Disney controls 30 per cent of the films shown in
Cinema, s.
It’s a lot easier for YouTube or twitter just to remove
content than to try to stand up for content that might
be deemed fair use

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Anonymous Coward says:

CDA Section 230 is a very bad law which should be entirely repea

They need to pass a bill to protect honest hardworking businesspeople who are defamed on a regular basis online by nuts just looking for fame, fortune or just a free dinner. A physician can be falsely accused of murder and Big tech is too busy to ever vet the claims. They will leave it up forever even if it ruins the doctors practice, life and family. Why do these bratty millennial in Silicon Valley get to play God with our lives like this? Because Congress gave them immunity even though they publish, develop, promote, monetize and distribute this garbage content. CDA Section 230 is a very bad law which should be entirely repealed.

Anonymous Coward says:

Re: CDA Section 230 is a very bad law which should be entirely r

What you seem yo be saying is that Facebook, Twitter et.al. should be held responsible for any defamation that you publish using their services. If that come to pass, just how long do you think that they will stay in business. Make companies liable as you suggest, and you will not have an outlet to publish your opinions, unless unless you can gain the attention of an editor at a publisher.

Even if you have your own blog, how are you going to attract an audience without social media, or in the extreme of desires to make third parties liable, no links from any search engine. Also would you risk linking to another page on the Internet of you could be held liable for its content, which may change after you link to it?

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

They need to pass a bill to protect honest hardworking businesspeople who are defamed on a regular basis online by nuts just looking for fame, fortune or just a free dinner.

Defamation laws already exist. Negative opinions don’t qualify as defamation if the targets of those opinions don’t like them.

A physician can be falsely accused of murder and Big tech is too busy to ever vet the claims. They will leave it up forever even if it ruins the doctors practice, life and family.

[citation needed]

Why do these bratty millennial in Silicon Valley get to play God with our lives like this?

Nobody at Facebook, Twitter, etc. “plays God” in any meaningful sense vis-á-vis moderation of speech. But if you want to blame anyone for social media services becoming a “new God” or some ridiculous bullshit like that, blame everyone who uses the services and treats them like the most important thing ever. Nobody really needs social media services like Twitter. That people treat them as a necessity is a problem, but getting rid of Twitter — one way or another — will do nothing to get at the root of the issue.

Social media inherently creates an ego problem. Before Facebook and Twitter, people had to work for the right to have their voices heard — to have their voices matter — in a broader conversation. Now any rando with a smartphone can shittalk celebrities and politicians all the live-long day. You can’t fix the issue of human behavior by getting rid of Section 230, either. People will find a way to keep social media alive without 230 around. If you think otherwise, you underestimate what people can do when driven by spite.

Because Congress gave them immunity even though they publish, develop, promote, monetize and distribute this garbage content.

Congress gave services immunity from liability for third party content. The same law you decry also gives you the right to comment on this website. Without 230, this comment section — and your comment — wouldn’t exist.

CDA Section 230 is a very bad law which should be entirely repealed.

Saying “very” doesn’t make your argument stronger. And you don’t have an argument worth a damn anyway, so…yeah…

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PaulT (profile) says:

Re: CDA Section 230 is a very bad law which should be entirely r

Another day, another person who doesn’t understand what 230 actually says. It’s like the net neutrality arguments all over again – it’s hard to have an honest argument with anyone who wants it repealed, because they’re not addressing reality.

That’s fairly depressing, especially since we won’t see the penny drop when these idiots get what they’re asking for – because they’re demanding the removal of their ability to post after it’s repealed.

That One Guy (profile) says:

Re: Re:

If 230 really was such a terrible law you’d think there would be honest and factual arguments against it left and right, ones backed up by verifiable data in significant amounts, yet time and time again all that gets thrown out is strawmen, dishonest and/or inaccurate arguments and anecdotal examples that do not hold up under scrutiny.

Either there simply are no good arguments against 230 or they exist and yet after years of the discussion no-one has brought them up, and it’s not hard to guess which is the more likely.

Scary Devil Monastery (profile) says:

Re: Re: CDA Section 230 is a very bad law which should be entire

"Another day, another person who doesn’t understand what 230 actually says."

The tells, twisted arguments and broken logic makes it pretty obvious it’s just that same guy who feels compelled to weigh in every time section 230 is discussed. Our old anti-pirate pal "I’m-not-a-racist-but-black-people-suck" Baghdad Bob.

Maybe you’re thrown off by the fact that he appears not to use a "But OBAMA!" as the core of his recent arguments any more?

Scary Devil Monastery (profile) says:

Re: CDA Section 230 is a very bad law which should be entirely r

"They need to pass a bill to protect honest hardworking businesspeople who are defamed on a regular basis online by nuts just looking for fame, fortune or just a free dinner."

Translation; "My latest scam keeps failing because people google my name and find the long list of fraud convictions against it!!"

Or possibly "If consumers angry at getting screwed over our services can just post their experience online no one will buy our overhyped and overpriced schmutter!!"

"A physician can be falsely accused of murder and Big tech is too busy to ever vet the claims."

Sure, because falsely accusing someone of murder is something for a district attorney to actually prosecute someone for. But hey, don’t let factual law stop your incoherent diatribe about why it’s bad that people can speak up about what bothers them where other people can read.

"Why do these bloody newspapers get to play God with our lives like this?"

FTFY.

Yeah, to a certain type of person it’s indeed inconvenient if the masses can speak where everyone can choose to hear.

"Because Congress gave them immunity even though they publish, develop, promote, monetize and distribute this garbage content."

I’m afraid the first amendment wasn’t created by congress.

"CDA Section 230 is a very bad law which should be entirely repealed."

…because, as per usual, Baghdad Bob, the concept that the road owner should not be held liable for what the drivers do is still alien to you?

You’ve been screaming about section 230 for many years now and the argument has always boiled down to the same damn thing; You’re upset that you can’t sue facebook and google when they allow individual users to post bad consumer reviews, or when the owners of a platform disallow the bigot crowd to post hate diatribes.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Why?

"Rather Than Attacking Section 230, Why Aren’t Trump Supporters Angry About The DMCA…?"

This is a specific instance of the general form:

Rather than attacking [good thing], why aren't Trump supporters angry about the [bad thing]?

Without fail, the answer is utterly general, i.e., because they’re idiotic cattle herded by a deranged orange Corgi.

John85851 (profile) says:

Need to know the whole story

I like how people jump all over Twitter for removing someone’s content without bothering to get the whole story.
You mean this guy was warned numerous times about the same issue, then agreed not to do it again, then did it again, and then got even more strikes his account? Oh, sure, it must be a political agenda by Twitter!

It’s sort-of like how people get outraged when they hear a 10 year-old has been arrested, yet they don’t read how that same 10 year-old had caused trouble over and over for the past year and an arrest was the last straw.

Plus, it’s trendy right now to attack Twitter and Facebook for a perceived political bias instead of understanding the nuances of the DMCA and why these takedowns happen in the first place.

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[—-]

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