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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  1. icon
    Mike Masnick (profile), 6 Apr 2010 @ 5:18pm

    Re: Re: Re:

    Elcomsoft (FDC ND CA) and Universal Studios (2nd CCA) dismissed 1st Amendment challenges to the DMCA. Then, of course, we have Eldred by the SCOTUS. This is not an all inclusive list...merely some of the better known cases.

    Elcomsoft had nothing to do with the notice-and-takedown provisions, of which this paper focuses on, but about anti-circumvention.

    Universal Studios also was about anticircumvention, not notice-and-takedown.

    Eldred was about copyright extension, not the DMCA.

    I'm curious why you would bring up these three cases which do not actually address this paper, unless you didn't actually read the paper.

    Berkman, EFF and other groups of like mind make very thoughtful points. Unfortunately, most of what they seem inclined to promote is 180 out from case law.

    First of all, that is untrue. Blatantly false. I mean, almost laughably so. But, it's really besides the point. You showed your typical true colors ("entertainment industry must be right!") by not engaging in any actual debate on the merits, but focusing instead on associations.

    It's a disgusting smear tactic better associated with Fox News.

    Yes, I am in the habit of reading law articles before commenting. My comments, however, tend to be very short and mild in tone.

    You clearly did not in this case, because you seem to be smearing based on association and bringing up unrelated caselaw. But, you know that.

    Perhaps Mr. Sydnor may choose to weigh in with his well-crafted prose.

    Not sure what this has to do with anything?

    How an observation that the article is talking about a single journal article could even remotely be construed as somehow disrespectul eludes me completely.

    You made no "observation." You told me how I should title my posts. That is what I found disrespectful.

    Again, you know this, but then play innocent. The more you comment here, the more amusing you get. For someone who insists you're just here "merely to provide info" it is clear that you have a massively skewed agenda. At least others with such agendas are willing to post under the names and stand behind their words. Yet again, I find it curious that you choose not to do so here, but on other sites, where you say disparaging things about me, you have no problem posting your full name, middle initial and all.

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