Don't Confuse All Safe Harbors With Poorly Written Ones

from the the-terms-matter dept

I'm almost always impressed and intrigued by articles from Rick Falkvinge, who I think does an amazing job distilling some complicated issues around the intersection of the internet, the law and civil liberties into a format that's easy to understand. However, in his recent column for TorrentFreak, I think he overstates his case. His main argument is that "safe harbor laws" are disastrous for free speech. To expand it a bit, he's mainly complaining that in order to get the safe harbor protections (avoidance of liability), companies have to suppress free speech and/or give up private info on users. He's mainly talking about the DMCA. But that's part of the problem. Unfortunately (and surprising for someone usually as careful as Falkvinge), he's taking one part of the (very problematic) DMCA and using it to tar the entire idea of safe harbors.

That's a mistake.

To show it's a mistake, you need to look no further than the other big US "safe harbor" law that we talk about with great frequency when it comes to free speech online: Section 230 of the CDA. This, too, was part of a terrible law -- but thankfully, most of that law got thrown out. What remained was an exceptionally useful safe harbor for guarding free speech.

The problem comes up in the differences between these laws. While Section 230 is a blanket safe harbor that does not require specific actions on the part of the service provider, the DMCA requires a notice-and-takedown provision. We've noted in the past that there are very strong arguments for why the notice-and-takedown provisions represent a First Amendment violation, but there haven't been any significant legal challenges along those lines in the past. But a safe harbor like Section 230 (which is used in other types of cases, such as defamation cases) has no such provision. There is no requirement at all to suppress free speech.

And, yes, we're certainly worried about safe harbor provisions that require too much on the part of service providers to get the necessary protections from liability. It's why we are worried about the safe harbor provisions in SOPA.

But the idea behind safe harbor provisions are not bad and are not dangerous. In fact, they are quite useful in allowing companies to focus on building innovations and growing, without having to act as nannies online. The caselaw behind Section 230 has been tremendously useful in enabling new online services that encourage and enhance free speech. The DMCA safe harbors have definitely been much more of a mixed bag. There's no doubt that they've been abused, repeatedly, but that's because of the bad part: requiring the suppression of speech to get the safe harbor. If the DMCA's safe harbors were modified to match Section 230s you'd get the protection without the harm.

So, I think Falkvinge's argument here is surprisingly weak. Safe harbors are incredibly useful. It all depends on how they're implemented. The DMCA's safe harbors have some good facets (pretty broad protection from liability for third parties) and some bad facets (suppression of speech without any judicial review). It makes little sense to condemn the entire concept widely based on the bad facets of one implementation...


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  1.  
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    Richard (profile), Dec 29th, 2011 @ 6:38am

    No I think Falkvinge is right

    He is clear that it is not the principle of safe harbours he objects to - rather it is the tendency of these laws to comne with a sting in the tail.

    You see the safe harbour principle already exists in most legal systems - and it does so without requiring the service provider to jump through extra hoops. Therefore any new legislation that mentions "safe harbours" explicitly is likely actually to reduce their strength.

     

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    Designerfx (profile), Dec 29th, 2011 @ 7:15am

    Well, I kinda agree with Falkvinge based on interpretation too

    I think the point is - why should we have to have these safe harbors in the first place? What made things suddenly questionable just because they are online?

    The problem is what we have enabled that has required us to need safe harbors.

    Why should there even be a question of "is this protected speech?" It ultimately boils down to the lower end of the legal system being the cause and the solution being the appeals courts/etc.

    I think more power to review validity of claims needs to be given to lower courts to ensure thus stuff never even reaches a trial.

     

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  3.  
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    Anonymous Coward, Dec 29th, 2011 @ 7:17am

    Safe Harbors are great, if they are used to truly protect innocent naked service providers, and not as a mechanism to facilitate a business model that depends on piracy or other illegal acts.

    The real problem is and will always be that too many online companies are jammed under the "service provider" heading, and are using 512 C as protection against what would otherwise be entirely unworkable / illegal business models.

    Until a way is found to separate content aggregators and "user submitted content" sites from things like ISPs and naked hosting companies, you will always have plenty of pressure against any of the safe harbor provisions in various laws. Too many people use protections to keep themselves from being liable for their own business models.

     

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  4.  
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    Richard (profile), Dec 29th, 2011 @ 7:27am

    Re:

    You're off topic.

    We're not discussing your problem with safe harbours (which is that you want to reduce their scope to remove unvetted user generated content from the internet).

    We're discussing the fact that safe harbours, when explicitly implemented in law, give far too much ground to your point of view.

     

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    Anonymous Coward, Dec 29th, 2011 @ 7:37am

    Re: Re:

    Not off topic.

    "We're discussing the fact that safe harbours, when explicitly implemented in law, give far too much ground to your point of view."

    Yes, and my opinion is that because everyone and their dog tries to hide under the safe harbours, they create their own hell. With all the discussion of the "overly broad" SOPA, you would think that perhaps Mike could see the "overly broad" application of the various Safe Harbour provisions.

    I guess things are "overly broad" only when they hurt your chosen business models.

     

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    Violated (profile), Dec 29th, 2011 @ 7:39am

    Free Speech

    I am someone who frequently reads Rick Falkvinge's theories and I do often find he takes ideas too far. It is like he gets most of it right but then adds more that only leads disagreement and debate. Interestingly enough his most accurate postings were also his most celebrated.

    I am also someone who frequently calls our the flaws in his ideas and yes in this case I clearly pointed out that DMCA "safe harbour" law does not harm Free Speech and this law is in fact good for web site growth and innovation.

    The large abuse that happens is in the DMCA take-down process with the many false requests. People though can fight back if they want to and know how. Not knowing their rights, feeling helpless and being bullied is the real problem.

    Rick then discredited all of DMCA law saying that Common Carrier law should be used instead. I then replied that Common Carrier law would not apply well to a website and a Judge would expect site owners to maintain their property in a lawful way.

    So in my view his theory had been largely disproved. DMCA law is largely abused for censorship purposes but safe-harbour is not part of this.

    DMCA take-down law can be fixed if false claims come with larger fines. It would also help in the second round of the DMCA take-down process that copyright ownership be proved through document scans. No valid proof is a large part of the censorship that occurs.

     

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  7.  
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    Richard (profile), Dec 29th, 2011 @ 8:05am

    Re: Re: Re:

    and my opinion is that because everyone and their dog tries to hide under the safe harbours, they create their own hell.

    Your opinion is based on greed, unwillinness to adapt and the wish to stifle legitimate competition.

    Safe harbours are merely an explicit codification of a general legal principle (that you cannot be held liable for someone else's actions).

    With all the discussion of the "overly broad" SOPA, you would think that perhaps Mike could see the "overly broad" application of the various Safe Harbour provisions.

    Mike can't see what isn't there.


    If the safe harbours that you complain about were not explicitly written into law then actually the situation would be worse for your point of view - not better. The legal position of the things you complain about would not change in your favour - quite the reverse - although the court cases would take longer and cost more so I suppose you would have more opportunity for legal terrorism.

     

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  8.  
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    E. Zachary Knight (profile), Dec 29th, 2011 @ 8:23am

    Re:

    How many times have we explained to you that the goal of safe harbors is to protect tool makers from the actions of the tool users?

    The DMCA safe harbors, while flawed in their own rights, did nothing but codify into law a legal precedence that dates back to at least the Sony Betamax ruling. That ruling found that Sony could not be held liable for the infringing actions of Betamax owners. Why should YouTube or any other user generated content site be held to a different standard?

     

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  9.  
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    Anonymous Coward, Dec 29th, 2011 @ 9:13am

    Re: Re: Re: Re:

    "Safe harbours are merely an explicit codification of a general legal principle (that you cannot be held liable for someone else's actions)."

    Richard, that doesn't apply when you partner up with or get "in cahoots" with other people in an illegal act. In legal terms, it's called a conspiracy - the right hand does not have to know explicitly what the left hand is doing, they only have to know that what they do is in furtherance of the crime, the common goal.

    "If the safe harbours that you complain about were not explicitly written into law then actually the situation would be worse for your point of view - not better"

    Your creative interpretation not withstanding, I would say that the content industry would be very happy to see the DMCA 512 (c) safe harbours either abolished or severely limited. All the moaning and whining about SOPA / PROTECT IP and all that it would do against "user contributed" content sites is as a result of the safe harbors being much more limited, and no longer able to be used as an excuse for widespread copyright violations.

    I would say that you might want to go back and read some of Mike's whining about SOPA. It will explain to exactly why those business models predicated on hiding out in a safe harbour are pretty much doomed.

     

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  10.  
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    Anonymous Coward, Dec 29th, 2011 @ 9:17am

    Re: Re:

    Zach, how many times do I have to tell you that I understand that exactly.

    The problem is that everyone claims to be making tools, and nobody wants to accept the responsibility of what is made with them. Sites that aggregate user submissions, sort of them, collect them, and republish them on other pages, in other formats, or through embeds are trying to claim they only make the tools. Yet, that business as only a tool maker doesn't stand up to basic inspection, because they don't sell tools, they don't sell use of the tools, they sell the end result of the tools.

    Youtube isn't a VCR. It is a user content aggregation and republishing system. Why should YouTube be any different from a magazine or movie? Remember, youtube doesn't make any money on tools, they make it on the results of the use of their tools. They have a very strong vested interest in every piece of "user" material on their site. It is what makes them they money, not the "tools".

     

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  11.  
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    Richard (profile), Dec 29th, 2011 @ 9:32am

    Re: Re: Re: Re: Re:

    that doesn't apply when you partner up with or get "in cahoots" with other people in an illegal act. In legal terms, it's called a conspiracy - the right hand does not have to know explicitly what the left hand is doing, they only have to know that what they do is in furtherance of the crime, the common goal.

    Patronising Coward:
    I'd love to see your creative interpretation of conspiracy applied to the monopolistic behaviour of big content companies (and some associated tech companies too).

    It's the kind of legal stretch that only gets made when you have lots of money for lawyers and lobbying to distort the climate of opinion. I doubt if you could find a case where conspiracy law was applied in that way outside of the distorted world that is IP law.

    I would of course be very happy to see the DMCA abolished. Since the safe harbour provisions were expressly added to limit the affect of a terrible law it is not meaningful to talk of abolishing only the safe harbours - its all or nothing.

     

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  12.  
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    Richard (profile), Dec 29th, 2011 @ 9:45am

    Re: Re: Re:

    Why should YouTube be any different from a magazine or movie?

    Because otherwise we are throwing away the advantages of the new technology.

    Movies and magazines date from the days when all publishing involved a very expensive "mastering" process. Consequently it was not a great burden to hold publishers responsible for vetting the content that they published.

    Current technology has eliminated that costly mastering process - if we regard Youtube as a publisher and stick with the old rules it will be like allowing motor vehicles - but only if they have a horse harnessed to the front!

    If you want to stay in the first half of the 20th century I suppose we can't stop you - but don't try and dictate terms to the rest of the world.

     

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  13.  
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    TtfnJohn (profile), Dec 29th, 2011 @ 9:59am

    Re: Re: Re: Re: Re:

    It's attitudes like yours that will, inevitably, doom the entire concept of copyright and it's, sadly, limited good as it currently protects the income of just about everyone BUT the often cited artist. (Unless, of course, that artist is one of the very, very few who make it from creation to publication without having to sign their copyright away. Publication, in this case, meaning books, recordings, DVDs, CDs so it covers authors, songwriters, commentators and so on.)

    SOPA will do nothing at all to stop file sharing/piracy. Get that into your thick skull to begin with. Human nature, being what it is, file sharing will actually increase if for no other reason than to stick it to "da man". The entire spectrum of reasons is too long to get into here but humans don't like barriers existing for "harm" that actually doesn't exist. It MIGHT hurt artists but anyone who knows how Hollywood and the book publishing business works knows it's only a tiny minority of creators with the situation being what it is now.

    Not only that but humans naturally and rightfully object when culturally important items are locked into walled gardens as humans feel, correctly, that culture belongs to us all. (And no I'm not talking about Disney's vast library poorly told if brilliantly animated retellings of fairy tales or Mickey Mouse.)

    Safe harbours to exist for a number of other reasons than file sharing, of course, and it's the principle that the host isn't responsible for what someone puts on their site until the alleged infringement is brought to their attention.

    Of course, as yet, you haven't shown one business that relies on pro piracy business models. AND makes a ton of money doing it.

    Don't bother with Google because to accuse them means you're accusing Bing and Yahoo of the same thing.

     

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  14.  
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    TtfnJohn (profile), Dec 29th, 2011 @ 10:03am

    Re: Re: Re: Re:

    He'd actually be more comfortable in the first half of the 15th Century before Gutenberg developed the movable type press. Then again, had patents existed then he'd have been instantly sued by some Chinese company saying they'd done that some 400 years earlier and had the documents to prove it. And they would, too.

     

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    The eejit (profile), Dec 29th, 2011 @ 10:11am

    Re: Well, I kinda agree with Falkvinge based on interpretation too

    I hadn't realised that there was Lowest Common Denominator lawmaking. Thanks for that!

     

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  16.  
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    The eejit (profile), Dec 29th, 2011 @ 10:18am

    Re: Re: Re:

    Course you understand it. you have to, in order to misrepresent it in such an insane manner.

    The tool is not responsible for the actions of its user (unless, of course, your name is Chris Dodd, in which case, you are the tool in question.)

    Hosting companies are a tool to store data. That's it. ISPs pip0e the data to the user. DNS resolvers act as a map for the data.

    The internet is pure data - that was its original intent: to hold data in times when it would otherwise be difficult to obtain the data. Everything else is secondary.

    And as for your Youtube example, where is the link? People. Are we going to outlaw people, too? They're the ones doing this so-called infringing, so everyone's a criminal now...

    Your idiocy is showing again.

     

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  17.  
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    Anonymous Coward, Dec 29th, 2011 @ 10:30am

    Re: Re: Re: Re: Re: Re:

    "Of course, as yet, you haven't shown one business that relies on pro piracy business models. AND makes a ton of money doing it."

    Megaupload.

    NEXT!

     

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  18.  
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    TtfnJohn (profile), Dec 29th, 2011 @ 10:45am

    Re: Re: Re: Re: Re: Re: Re:

    Prove it. Seems it was used by artists themselves to promote their works far more than what you're saying.

    Also, if you assert they're profitable can you show me a balance sheet for them?

    FAIL

     

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  19.  
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    Richard (profile), Dec 29th, 2011 @ 10:52am

    Re: Re: Re: Re: Re: Re: Re:

    "Of course, as yet, you haven't shown one business that relies on pro piracy business models. AND makes a ton of money doing it."

    Megaupload.


    WRONG

    Megaupload makes money from people backing up and distributing their own files.

     

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  20.  
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    TtfnJohn (profile), Dec 29th, 2011 @ 11:13am

    Re: Re: Re:

    By your rather twisted logic then the following has to apply:

    1) I crack a bone in my fingers because I misused a ratchet therefore I get to sue SnapOn
    2) I whack my thumb (again!!!) with a hammer so I get to sue Sears?
    3) I cut half my foot off misusing the tiller attachment to my Echo power head therefore I must be able to sue Echo. Right?

    All have a strong vested interest in me as a customer NOT doing that but none are responsible for me doing any of that.

    Every piece of software you use is a tool. From the OS, to Office package, to photo touchup to whatever is a tool that lets you do something.

    The browser that got you here is a tool. (Well, it's a complex collection of tools.) It executes client side instructions on pages ending in .asp or .php. It allows you or me to upload to places like YouTube and Flickr.

    IF I upload infringing material to YouTube or Flickr then I'm responsible for that. Not YouTube or Flickr. I am.

    If and when YouTube or Flickr get a LEGITIMATE takedown notice and respond within the law they have done their duty under that law. They aren't responsible for me putting it there to start with. Even if they could monitor all activity and screen uploads for signs of infringement, which they do, the tools to do that are primitive and likely to stay so for the foreseeable future.

    Keeping in mind that there are and may be legitimate and perfectly legal reasons that I uploaded what MAY be infringing under different circumstances. Which leads us to fair use/fair dealing both of which I also assume you want ended along with safe harbours.

    All nicely locked away in the walled garden then the world will be safe from piracy. Except, of course, that it won't be.

    So why should I lose my right to do perfectly legal things to protect industries that don't NEED protection as they're still obscenely profitable? Or to keep a publishing house in business because it can't adapt?

    That's the question you never answer, and won't answer because then you will have to admit that it's corporations and NOT artists you're interested in.

    Say goodnight, Gracie.

     

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  21.  
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    Anonymous Coward, Dec 29th, 2011 @ 11:49am

    Re: Re: Re: Re: Re: Re: Re: Re:

    "Megaupload makes money from people backing up and distributing their own files."

    LMFAO. Oh my god, do you actually believe that shit?

    Fuck me, Techdirt has some of the dumbest people on it. You may be even more ignorant than RD when he's off his meds!

     

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  22.  
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    E. Zachary Knight (profile), Dec 29th, 2011 @ 12:10pm

    Re: Re: Re:

    Sites that aggregate user submissions, sort of them, collect them, and republish them on other pages, in other formats, or through embeds are trying to claim they only make the tools. Yet, that business as only a tool maker doesn't stand up to basic inspection, because they don't sell tools, they don't sell use of the tools, they sell the end result of the tools.

    And once again I find myself explaining to you that what Youtube does is make the tools useful. All that stuff is what makes Youtube better than having to create your own website if all you want to do is upload your videos and share them. Youtube provides a way for people to make money off the videos they upload and get a cut of the money so that it can continue to provide the tool for the public.

    Your idea of a internet tool that fits your narrowly defined (and flat out wrong) view of safe harbors would be a tool that no one would want to use because it is completely unusable.

    Why should YouTube be any different from a magazine or movie?

    Because Youtube exercises no, read that NO, editorial control over the content it hosts. Magazines and newspapers have editors that review all submitted content and decide what content to include. Youtube has no such editor. Movies have directors and producers that decide what footage gets included in the final film. Youtube has no such director. Your willful ignorance on this subject is as clear as daylight.

    They have a very strong vested interest in every piece of "user" material on their site. It is what makes them they money, not the "tools".

    In a way you are right. Youtube would be worthless without all that user generated content. that is why they have a vested interest in making their tools more usable and friendly to the public. Why you hate all those independent creators is beyond me.

    If the tool was not usable, as your dream safe harbor qualifying tool would be, it would not attract any users and would not be able to monetize the fruits of that tool.

    Really. This is getting old. You have shown time and time again that you do not understand the nature of the internet or the laws, not just codified national laws but also natural laws, that govern it. Please do yourself a favor and keep your willful ignorance to yourself.

     

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  23.  
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    Anonymous Coward, Dec 29th, 2011 @ 12:16pm

    Re:

    Nobody gives a shit what you think TAM, go fuck yourself.

     

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  24.  
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    The eejit (profile), Dec 29th, 2011 @ 12:40pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Well, that's what actually happens. As in, I pay foir a membership, which allows me to upload files, such as photos I take. Other people download them, and I get paid (not much, but something).

    So you're argument is full of shit.

     

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  25.  
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    JMT (profile), Dec 29th, 2011 @ 2:39pm

    Re: Re: Re:

    "Sites that aggregate user submissions, sort of them, collect them, and republish them on other pages, in other formats, or through embeds are trying to claim they only make the tools. "

    The tools that people want. God forbid somebody actually provide a useful, convenient tools that people want to use. Imagine that; satisfied customers! Can you imagine what might happen if the legacy content industries did something so revolutionary? They might be able to compete!

     

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  26.  
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    Richard (profile), Dec 29th, 2011 @ 4:13pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You suffer from the delusion that ordinary users don't create anything useful - whereas in fact most content on the internet is generated by ordinary people for their friends and relatives or for work purposes.

    The delusions of self importance of the old style "content industry" are just staggering.

     

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