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
    E. Zachary Knight (profile), 29 Dec 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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