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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Filed Under: cda, dmca, dmca 512, free speech, rick falkvinge, safe harbors, section 230


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  1. icon
    TtfnJohn (profile), 29 Dec 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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