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
    chris (profile), 6 Apr 2010 @ 7:55am

    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.

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