MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use

from the time-to-fix-the-law dept

Well, this is unfortunate. We've been covering a somewhat bizarre, petty legal squabble between two bloggers who have very different views about birthing methods, and who have a history of sniping at each other. Eventually the sniping went legal after one (Gina Crosley-Corcoran) posted a photo of herself giving the middle finger, telling the other (Amy Tuteur) to "take back to your blog and obsess over." Tuteur, in response, posted the image on her blog along with some choice words for Crosley-Corcoran. Crosley-Corcoran threatened a highly questionable copyright infringement claim over the reposting of the photo, then eventually did send equally questionable DMCA takedown notices to Tuteur's hosting companies (plural) leading Tuteur to feel the need to shift hosts a few times. Crosley-Corcoran publicly laughed at Tuteur's blog being taken down, and later stated (publicly) that she wanted to stifle Tuteur's speech by getting Tuteur to stop talking about her, and finally soliciting a "legal fund" to go after Tuteur, promising to continue to take down her blog wherever it was posted.

This seemed like a clear case of abusing the DMCA to stifle speech, and we noted that it might be an important case in determining if the DMCA's 512(f) clause had any teeth. 512(f) is the clause that provides for damages if you file a bogus DMCA notice (technically if you make "material misrepresentation" in the notice). The key question: is sending a DMCA notice when the use is clearly fair use a "material misrepresentation." The EFF jumped in to help argue this point, freaking out the MPAA who insisted that having to consider fair use before filing an abusive, censorious DMCA takedown is crazy talk.

Unfortunately, it appears that the judge has now agreed with the MPAA that Congress probably didn't intend for DMCA filers to have to consider fair use, saying that if that was the intent, Congress should change the law. The argument made by the court is that the takedown process was designed to be "expeditious" and having to consider things like fair use make it too slow.
... in enacting the DMCA, Congress did not require that a notice-giver verify that he or she had explored an alleged infringer’s possible affirmative defenses prior to acting, only that she affirm a good faith belief that the copyrighted material is being used without her or her agent’s permission.... There is a reason for this. To have required more would have put the takedown procedure at odds with Congress’s express intent of creating an “expeditious[],” “rapid response” to “potential infringement” on the Internet.... Undoubtedly abuses will occur - as is the case with almost any system that permits legal self-help.... For these abuses Congress provided a remedy in section 512(f). If experience ultimately proves that the remedy is weighted too heavily in favor of copyright owners at the expense of those who seek to make “fair use” of another’s intellectual property, the resetting of the balance is for Congress and not a court to strike.
I think this is an incorrect reading of the law, since to file a DMCA notice you are making a statement that you believe the work is infringing, and as Section 107 of the Copyright Act clearly states, "the fair use of the copyrighted work... is not an infringement." So I don't see how you can truly claim that something is infringing without at least exploring whether it's fair use.

Still, if we accept the court's reading of this, it seems (to me, at least) to only further the argument that the DMCA takedown process is a clear violation of the First Amendment, because it now clearly allows for blatant censorship, with no remedy even if the process is abused to remove non-infringing speech, such as fair use.


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    anonymouse, Sep 12th, 2013 @ 8:30am

    I think we all know by now that copyright laws are theft and piracy is sharing....if they believe they can get away with something wrong then they are not going to stop those they accuse of doing something they perceive as wrong.

    We should all know by now that the courts are in the pockets of big business and if this is the way they treat their citizens why should the citizens in any way even consider what they are complaining about.

     

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      Anonymous Coward, Sep 12th, 2013 @ 11:20am

      Re:

      I also think that by now we all know you were originally born as a donkey.

       

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    Anonymous Coward, Sep 12th, 2013 @ 8:33am

    Judge Stearn eh ?. Not surprising. He has a very long, cozy relationship with the US attorney's office which is currently an **AA owned property. It's my OPINION that this Judge just does what his buddies want him to. Nice.

     

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    Anonymous Coward, Sep 12th, 2013 @ 8:34am

    "Congress did not require that a notice-giver verify that he or she had explored an alleged infringerís possible affirmative defenses prior to acting, only that she affirm a good faith belief that the copyrighted material is being used without her or her agentís permission....

    "telling [her] to 'take [the photo] back to [her] blog and obsess over...'" seems to me to be giving a free license. To turn around and claim any use of "the photo" on "her blog" seems to be a breach of license/contract by the lady who created (and holds the copyright) of the photo. I'm still curious how fair use is even in play in this situation?

     

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      Bergman (profile), Sep 20th, 2013 @ 2:27pm

      Re:

      Exactly. It's not a written license, but then, licenses don't have to be in writing. They just need to constitute permission to do something issued by the rights holder, and being told to take it to a blog qualifies.

      The licensee then having published the photo as part of a news article, the rights owner cannot retroactively revoke that license.

      Knowing that she had given that license, a DMCA takedown cannot be in good faith because there IS a use license.

      Congress may or may not have intended that a notice giver verify affirmative defenses, but they absolutely DID require a truthful, or at least good faith, belief that a use is infringing. Issuing a takedown because someone you gave a license to used the license exactly as worded is NOT good faith or truthful.

      Under penalty of perjury, anyone?

       

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    Shadow Dragon (profile), Sep 12th, 2013 @ 8:39am

    hmmm

    I wonder what OOTB insane ranting about this would be,how he complains about being silenced on here but his parameters to the very thing he complains about.I expect his/her head explode in a while bullshit.

     

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      out_of_the_blue, Sep 12th, 2013 @ 9:16am

      Re: hmmm @ "Shadow Dragon" -- QUIT your BASSACKWARD wondering and read my post!

      ^^^ This comment has been flagged by the NON-community.

      For Violation of TOS (Truly Overweening Stupidity)

      DOLT: Dimwit of Lowest Type



      Snarky Necessary Against Random Kids Yapping; self-defense by out_of_the_blue, fighting yapping with innovation!

      Man, my opinion counts so much that it's all you can think of!

       

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      Anonymous Coward, Sep 12th, 2013 @ 9:32am

      Re: hmmm

      Reported OOTB just to make a point.

      OOTB, doesn't it suck when someone can censor you for whatever reason and the response when you complain about it is simply "tough shit?"

      Welcome to the DMCA takedown process!

       

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    The Real Michael, Sep 12th, 2013 @ 8:42am

    Fair use is to corporate interests what the 4th Amendment of the Constitution is to federal agencies: an unnecessary inconvenience.

     

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      Shadow Dragon (profile), Sep 12th, 2013 @ 8:53am

      Re:

      I was like see them turn this country into fascist state,Mussolini tried that,and look what happened to him.

       

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        The Real Michael, Sep 13th, 2013 @ 7:17am

        Re: Re:

        "Fascism should more properly be called corporatism because it is the merger of state and corporate power." - Benito Mussolini

        Speaks for itself.

         

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    out_of_the_blue, Sep 12th, 2013 @ 9:11am

    Actually, the suit was soundly enough based.

    "the reposting of the photo" -- Whose photo was it? Case closed.

    The judge has it right: DMCA claims don't have to first consider "fair use" -- and I'd add: especially for an enemy who's using your material.

    Sure, this may not be strictly merited in the kerfluffle, but this case mainly shows why not to go to court: judge or jury will make a yes/no all/nothing decision that will likely go against you.

    And of course, Mike's hope here was clearly opposite of decision. But just about every time these go to trial, Mike's notions get whomped based on common law principles; here, that one pretty near absolutely owns his works (or so I'd say, though the judge uses intent of statute, was surely strongly influenced by the basics of copyright).

     

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      Anonymous Coward, Sep 12th, 2013 @ 9:21am

      Re: Actually, the suit was soundly enough based.

      Nope. Admission without duress that the act was meant to stop speech is an infringement of the law (in this case, the DMCA.) That's it. Everything else is literally irrelevant. The onus is always to be clear in a dialogue.

       

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      RD, Sep 12th, 2013 @ 9:26am

      Re: Actually, the suit was soundly enough based.

      "The judge has it right: DMCA claims don't have to first consider "fair use" -- and I'd add: especially for an enemy who's using your material."

      Good that you see it that way. We (not me, just the collective internet that is sick of your bullshit) is coming after you NEXT. And best of all, we will have your blessing, and we will not hear any complaints from you, right?

       

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        Anonymous Coward, Sep 12th, 2013 @ 9:33am

        Re: Re: Actually, the suit was soundly enough based.

        Indeed, everytime blue quotes something we can now send a DMCA and being as we do not to consider fair use of them using the quote then there will not be any consequences.

         

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      Anonymous Coward, Sep 12th, 2013 @ 10:43am

      Re: Actually, the suit was soundly enough based.

      I love how no matter how many times someone breaks down exactly how you're wrong to keep pointing to common law you not only keep bringing it up as if that never happened but even bring it up in cases like this one where it has absolutely nothing to do at all with what the case was actually about.

       

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    Anonymous Coward, Sep 12th, 2013 @ 9:11am

    Well in that case we should all now file bogus DMCA requests being as there will no be any consequences for knowing that filing of the DMCA is bogus.

     

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    Anonymous Coward, Sep 12th, 2013 @ 9:11am

    Hey America, tell us again how the courts are separate from the rest of your corporate-owned govenment.

     

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      Anonymous Coward, Sep 16th, 2013 @ 5:04am

      Re:

      I have just read through this entire thread. I've been both a litigator on copyright issues and an academic at a top law school for years, and I don't know how to say this other than Karl cleaned your clock with his analysis. And you don't seem to realize it. You don't seem to understand the First Amendment, either in theory or in practice. You seem to have latched onto things without understanding their context or relevance, and you don't seem to recognize some very basic facts about both the First Amendment and copyright law.

      Karl won this debate hands down, and did so from the very earliest comments. The fact that you're now insulting HIM and pretending he doesn't understand the law is funny. Your understanding of the law reads like a stuck up pre-law undergrad student who read one or two books once, and thinks he understands the law. You don't. Go back to school.


      Karl's so confused that it's not even funny. I've made tons of direct and specific points above. You haven't made a single one. Let's talk specifics. Please explain how I'm wrong. I'd love to discuss it with you. Otherwise, all you've done is claim I'm wrong without explaining how in any way. I'm happy to back up my understanding of the law. Are you? I suspect not. Prove me wrong?

       

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        Anonymous Coward, Sep 17th, 2013 @ 1:18am

        Re: Re:

        Can't even reply to the right response, can you average_jackass? Not a surprise from someone with half the brain of a cow and chicken.

         

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    Anonymous Coward, Sep 12th, 2013 @ 9:14am

    Still, if we accept the court's reading of this, it seems (to me, at least) to only further the argument that the DMCA takedown process is a clear violation of the First Amendment, because it now clearly allows for blatant censorship, with no remedy even if the process is abused to remove non-infringing speech, such as fair use.

    The problem with your argument, Mike, is that a private party doesn't become a state actor just because they're responding to a DMCA takedown notice. Without a state actor, there can be no First Amendment violation.

     

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      Anonymous Coward, Sep 12th, 2013 @ 9:22am

      Re:

      Exhibit A: Digital Millenium Copyright Act.

       

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      Anonymous Coward, Sep 12th, 2013 @ 9:56am

      Re:

      The problem with your argument, Mike, is that a private party doesn't become a state actor just because they're responding to a DMCA takedown notice. Without a state actor, there can be no First Amendment violation.

      There is a state actor. Since it's using *the law* to lead to censorship, it is the state (via the law) that has created the impact.

       

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        Anonymous Coward, Sep 12th, 2013 @ 3:18pm

        Re: Re:

        > There is a state actor. Since it's using *the law* to lead to censorship, it is the state (via the law) that has created the impact.

        You have no idea what you're talking about.

        The state does not become an "actor" in a DCMA takedown case by virtue of having passed the DMCA. It is solely a private matter between the copyright owner and the accused infringer. The First Amendment has no relevance here unless the copyright owner *IS* the state.

         

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          Karl (profile), Sep 12th, 2013 @ 5:23pm

          Re: Re: Re:

          It is solely a private matter between the copyright owner and the accused infringer. The First Amendment has no relevance here unless the copyright owner *IS* the state.

          Interesting. So, let's say that Congress passes a law that allows for any private party to censor the speech of any other private party, for any reason, under penalty of civil and criminal fines.

          Do you honestly believe that the First Amendment would not apply in these cases?

          Of course it would. If censorship is "carried on under color of [...] law" and that it "may entail depriving the adult public of access to constitutionally protected material" (as Justice Harlan put it in his concurrence in Bantam), that censorship is unconstitutional.

           

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            Gwiz (profile), Sep 12th, 2013 @ 7:33pm

            Re: Re: Re: Re:

            The actual wording of the First Amendment supports that this is a First Amendment issue even if the government isn't named in the case:
            Congress shall make no law [...] abridging the freedom of speech
            I don't think (I could be wrong - IANAL) it's a requirement that the state be a named party in a legal action in order for a law to be found unconstitutional.


            The AC did bring up an interesting point above though. Can a civil action not involving the state and not even really using the courts (like a DMCA notice as opposed to a court issued injunction) be considered prior restraint? Is there relevant caselaw where something was found to be prior restraint that didn't involve a government action, except for a law passed by Congress?

             

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              Karl (profile), Sep 13th, 2013 @ 2:02pm

              Re: Re: Re: Re: Re:

              The actual wording of the First Amendment supports that this is a First Amendment issue even if the government isn't named in the case

              That is entirely correct. Being unconstitutional under the First Amendment requires only two things: 1. that a law abridge freedom of speech, and 2. that the law be passed by Congress. The Fourteenth Amendment's Due Process Clause extends this to state laws as well.

              The government does not have to be a party in the case; they only have to create the law.

              In fact, most of the landmark First Amendment cases (New York Times Co. v. Sullivan, Hustler Magazine v. Falwell, etc.) involved libel, which is also a dispute between private parties. If the original poster was correct, the First Amendment would not apply in libel cases, either, which is clearly not true.

               

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          Mike Masnick (profile), Sep 13th, 2013 @ 12:36am

          Re: Re: Re:

          The First Amendment has no relevance here unless the copyright owner *IS* the state.

          That is 100% false. The state is a player in that it created a law that leads to censorship without living up to the high bar required under the First Amendment.

           

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      Rikuo (profile), Sep 12th, 2013 @ 10:08am

      Re:

      The state actor being the DMCA? The law, as enacted by the government? The only reason anyone takes down the speech is because, if not, they fear having to go to court, a government body?

       

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    Anonymous Coward, Sep 12th, 2013 @ 9:17am

    War

    Now anybody hit by a false DMCA claim could now counter attack by using the same search term and issuing their own DMCA. I wonder how long the big companies would support this sort of ruling if it was their own stuff being taken down.

     

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    Anonymous Coward, Sep 12th, 2013 @ 9:19am

    Machine takedowns increase tenfold overnight

     

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    RD, Sep 12th, 2013 @ 9:24am

    Open Season!

    Ok so this means its Open Season on the *IAA websites, and politicians, since there is NO requirement to be accurate or even right, let alone any punishment if you even were wrong, when it comes to filing DMCA notices. Got it. Time to go to work!

     

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    Anonymous Coward, Sep 12th, 2013 @ 9:28am

    wait - this means can we file DMCA takedowns of our favorite internet sites now...claiming some random "copyright" abuse? like using an article word?

    woo hoo! free game! lets start with the NSA and get them kicked off the net!

    PS- I know that kicking their forward facing site off won't do any real good - you have to kick off the leaching backend system too.

     

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    Anonymous Coward, Sep 12th, 2013 @ 9:31am

    I don't like this new trend in US, where authorities skirt the law "because it's too slow" if they follow it. Guess what - that's what the law is supposed to do, you morons - keep you in check.

     

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    silverwizard, Sep 12th, 2013 @ 9:45am

    I would like to say that this is slightly less cut and dried than other cases. There is definitely a fair use case here (and fair use is definitely not a defense) meaning that the Judge is likely wrong.

    However, punishing someone because their interpretation of a law is different than yours is also likely wrong. Counter notices seem like the solution here, although those are just as sticky.

    Especially since this is a case between two smaller parties, sometimes the courts need to make a call.

    To be fair, stating that you are abusing a law for personal gain (taking down someone else's blog using the DMCA) should also be punishable.

     

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      Anonymous Coward, Sep 12th, 2013 @ 10:03am

      Re:

      Apparently you need undeniable evidence that the filer had malicious intent and "stifling speech" is apparently not enough. Somehow I don't see how you can ever use 512(f) without a signed confession stating that you have deliberately broken the law...
      I would definitely look at setting up a company to send these notices. The legal protection they are given is truely unmatched!

       

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    Anonymous Coward, Sep 12th, 2013 @ 10:02am

    The first amendment, as interpreted over two centuries, is not absolute. There are many exceptions: defamation, incitement, etc. And copyright does not itself limit the freedom of speech. There are many ways to express an idea. So my question for you -- and I've read the link you posted -- is this: In what way does DMCA takedown law NOT comport with these traditional exceptions?

     

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      Anonymous Coward, Sep 12th, 2013 @ 10:08am

      Re:

      In this case, and I cannot believe that this is happening again, because one person admitted so in court. Apparently, non-duressive confessions are not real, like an honest politician, or a rational zealot.

       

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      Rich, Sep 12th, 2013 @ 10:11am

      Re:

      What part of "Congress shall make no law" do you not understand? Sounds absolute to me.

       

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      Rikuo (profile), Sep 12th, 2013 @ 10:14am

      Re:

      To compare the DMCA to defamation or incitement is completely misleading. If American Citizen Jane makes speech and American Citizen Joe takes her to court for defamation or incitement, then the judge may issue an injunction or temporary removal of the speech (I'm not a lawyer, so if I'm wrong, someone please correct me), until the trial, that is the judge's call.
      With the DMCA, the court is more or less bypassed. Joe issues a takedown notice to Jane's Youtube account, and Youtube, fearing being a party to a possible lawsuit between Jane and Joe, removes access to the video (albeit temporarily). The onus is then on the accused to respond with a counter-notification, again, through Youtube, and not through a court. Jane may not respond with a counter-notification, she may be intimidated into accepting the speech being taken down, fearing the potential costs of going to court. With this ruling, she now realizes that, absent a signed confession from the accuser, she has basically no way to win this in court. All this is done while the speech is blocked (censored). For a country that was built on free speech principles, it has now become trivially easy to censor someone else's speech, and now, it's more or less confirmed that you can abuse the DMCA with absolutely no threats of reprisals.

       

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      Mike Masnick (profile), Sep 12th, 2013 @ 10:50am

      Re:

      The first amendment, as interpreted over two centuries, is not absolute. There are many exceptions: defamation, incitement, etc. And copyright does not itself limit the freedom of speech. There are many ways to express an idea. So my question for you -- and I've read the link you posted -- is this: In what way does DMCA takedown law NOT comport with these traditional exceptions?

      Indeed, it is not absolute, but there are certain standards. One of them is that anything that *removes* content from circulation requires a fairly high standard. For example in Ft. Wayne Books v. Indiana, the Supreme Court (citing a bunch of other cases) highlights that when exceptions occur there is a very high bar, and one of the factors in that bar is that an adversarial hearing must be held PRIOR to the speech being removed.

      That does not happen with the DMCA.

      Similarly, with a defamation situation, again, there is an adversarial hearing *prior* to any speech being taken down.

      So that's one key way in which the DMCA does not comport with traditional exceptions.

       

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        Anonymous Coward, Sep 12th, 2013 @ 10:54am

        Re: Re:

        Indeed, it is not absolute, but there are certain standards. One of them is that anything that *removes* content from circulation requires a fairly high standard. For example in Ft. Wayne Books v. Indiana, the Supreme Court (citing a bunch of other cases) highlights that when exceptions occur there is a very high bar, and one of the factors in that bar is that an adversarial hearing must be held PRIOR to the speech being removed.

        There only has to be that extra process when the line between protected and unprotected speech is dim and uncertain. That's not the case with regular piracy. I think it is the case with fair use, but you don't agree. The funny thing is, since you think that the line between fair use and infringement is easily discernible, that cuts against your argument that there needs to be more process.

        But none of this matters since the recipient of a DMCA notice is not a government actor, and thus the First Amendment is not in play--at least not for your prior restraint argument.

         

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          Khaim (profile), Sep 12th, 2013 @ 11:23am

          Re: Government actor

          While technically true, I find it very upsetting that the government can offer legal immunity to a private entity if it "voluntarily" acts to enforce a law, and then claim that such enforcement is not subject to Constitutional oversight. I'm not sure the matter has actually been decided in court - if you know of such a case, please post it for us. I would hope that the courts would show the same skepticism.

           

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            Anonymous Coward, Sep 12th, 2013 @ 11:36am

            Re: Re: Government actor

            You can still facially attack the DMCA on a substantive First Amendment challenge. My point is that Mike's theory that the recipient of a DMCA takedown notice becomes a government actor such that the prior restraint doctrine could apply to them doesn't hold water.

             

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              Anonymous Coward, Sep 12th, 2013 @ 1:50pm

              Re: Re: Re: Government actor

              The DMCA is a government practice, triggered by a private party, but the enforcement comes from the government doesn't it?

               

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              John Fenderson (profile), Sep 13th, 2013 @ 1:08pm

              Re: Re: Re: Government actor

              I think your point is wrong.

              The First amendment says "Congress shall make no law..." The DMCA is a law. Therefore, the first amendment is in play.

               

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          RonKaminsky (profile), Sep 12th, 2013 @ 12:05pm

          "Regular" piracy?

          > That's not the case with regular piracy.

          What is this "regular" piracy you talk about, is that the "regular" piracy in the eyes of the **AAs (you know, the those blokes who once claimed that ripping CDs was piracy), "regular" piracy in the eyes of your average consumer, or "regular" piracy in the eyes of Lawrence Lessig?

           

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          Bah, Sep 12th, 2013 @ 1:47pm

          Re: Re: Re:

          "There only has to be that extra process when the line between protected and unprotected speech is dim and uncertain."

          No. In order to find a person liable for copyright infringement there first needs to be an adversarial hearing followed by a decision in favor of the complainant. The defendant's right to due process is not contingent upon there being a "dim and uncertain" line between protected and unprotected speech.

           

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          Anonymous Coward, Sep 12th, 2013 @ 1:48pm

          Re: Re: Re:

          Please define "regular piracy". Is it posting parts of a work in ones own blog regular piracy? it is posting a logo in ones post "regular piracy"? it is one making fun of some work "regular piracy"? it is getting all the rights and knowing full well the extent of the rights and making using of those "regular piracy"?

          In this case, the intentions of that DMCA were clear even the judge admitted that the system was abused, there was no good faith here, there was a very malicious public declaration of intent and if for nothing else this would be why this ruling is so wrong, even if we concede that others don't have to take into account fair use they should at least be hold to the "good faith" which in this case there was none.

           

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          Karl (profile), Sep 12th, 2013 @ 5:09pm

          Re: Re: Re:

          There only has to be that extra process when the line between protected and unprotected speech is dim and uncertain.

          This should surprise nobody, but you're totally misreading the case law. Here is the origin of that quote, put in context:
          Thus, the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging, yet barely visible, encroachments. Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards, Smith v. California, 361 U. S. 147; Marcus v. Search Warrant, supra, is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. See, e.g., Thornhill v. Alabama, 310, U.S. 88; Winters v. New York, 333 U. S. 507; NAACP v. Button, 371 U. S. 415.

          "[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated... is finely drawn.... The separation of legitimate from illegitimate speech calls for... sensitive tools...." Speiser v. Randall, 357 U. S. 513, 357 U. S. 525.
          - Bantam Books v. Sullivan

          The court is not saying that there are First Amendment concerns only if the line is dim and uncertain. On the contrary, they are saying that the line is always dim and uncertain, and separating illigitimate speech always calls for sensitive tools.

          That's why you're so wrong when you say this: The funny thing is, since you think that the line between fair use and infringement is easily discernible, that cuts against your argument that there needs to be more process.

          If the use is clearly fair use, then any law made by Congress that allows for stifling fair use is clearly unconstitutional. If the fair use is obvious - as in this case - then Congress is absolutely not allowed to pass any law that infringes upon it.

          If you were right, then the government would be allowed to infringe on any speech it likes - so long as that speech is "easily discernable" as protected expression. Such a claim is oxymoronic, and I'm being generous with the "oxy" part.

          That's why the judge's ruling here is so problematic. He claims that having to take fair use into account would be "at odds with Congress's express intent." But if the use is clearly fair use, then it doesn't matter what Congress's intent is. Because fair use is protected expression, Congress is absolutely not allowed to infringe on fair use, no matter what their intent.

          That's not the case with regular piracy.

          First of all, this case had absolutely nothing to do with "regular piracy." Any moron in a hurry could see that this is clearly fair use, that the copyright owner granted an implied license to post the picture on the blog, and that the DMCA request served no other purpose than to stifle criticism. It is slam-dunk protected expression.

          Second of all, even if this were "regular piracy," you would be wrong. Wholesale piracy does, indeed, involve some elements of protected expression:
          Copyright infringement, per se, is clearly not speech entitled to First Amendment protection. But there are some creative aspects of downloading music or making it available to others to copy: the value judgment of what is worthy of being copied; the association of one recording with another by placing them together in the same library; the self-expressive act of identification with a particular recording; the affirmation of joining others listening to the same recording or expressing the same idea. Thus, while the aspect of a file-sharer's act that is infringing is not entitled to First Amendment protection, other aspects of it are. [...]

          Other forms of speech also receive such intermediate valuation. [...] The Court need not, and does not, express a view as to the proper place of file-sharing in the speech hierarchy; it is enough for present purposes to determine that it has some First Amendment value.
          - London-Sire v. Does
          Arguably, however, a file sharer is making a statement by downloading and making available to others copyrighted music without charge and without license to do so. Alternatively, the file sharer may be expressing himself or herself through the music selected and made available to others. Although this is not "political expression" entitled to the "broadest protection" of the First Amendment, McIntyre, 514 U.S. at 346, 115 S.Ct. 1511 (quoting Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)),[5] the file sharer's speech is still entitled to "some level of First Amendment protection." Verizon, 257 F.Supp.2d at 260, rev'd on other grounds, Recording Indus. Ass'n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C.Cir.2003).

          I conclude, accordingly, that the use of P2P file copying networks to download, distribute, or make sound recordings available qualifies as speech entitled to First Amendment protection.
          - Sony v. Does

          Those First Amendment protections are limited, but they certainly exist, and "that extra process" (or some sort of "extra process") needs to happen in piracy cases too.

          But none of this matters since the recipient of a DMCA notice is not a government actor

          Nobody - not Mike, not the plaintiffs - was arguing that the recipient of a DMCA notice is "a government actor." They were, and are, arguing that it is unconstitutional for Congress to pass a law that allows the sender of the DMCA notice to block legitimate speech. The lawsuit was against Crosley-Corcoran, not against either of the ISP's that shut Tuteur's website down. And she was able to do it solely because of statutes created by Congress.

          If this judge's ruling is correct, then Congress was acting outside of its mandate when it created statutes that allowed this sort of behavior. It's one of the reasons I think the judge's ruling is wrong.

           

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          ldne, Sep 12th, 2013 @ 8:07pm

          Re: Re: Re:

          But none of this matters since the recipient of a DMCA notice is not a government actor, and thus the First Amendment is not in play-

          Sorry, but it doesn't work that way. The filer of DMCA takedown notice becomes a "geovernment actor" when they utilize a government process to enforce a government law.
          Without the government, there would be no notice and no response, no one would have to care if they liked it or not.

           

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          PaulT (profile), Sep 13th, 2013 @ 1:17am

          Re: Re: Re:

          "That's not the case with regular piracy"

          Define "regular piracy" and do so in a black-and-white manner that's not only without question but can be implemented by an algorithm.

          If you cannot do this, then you have to admit that the extra process is always required as fair use and other aspects of copyright are often purely subjective.

          If you think you can do this, I suspect you've missed the nature of the problems being outlined and discussed.

           

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    Ninja (profile), Sep 12th, 2013 @ 10:16am

    Now imagine if the MAFIAA has to rely on fair use and it comes back to bite them? I think that's the second time I'll say: Oh wait...

     

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    Anonymous Coward, Sep 12th, 2013 @ 10:17am

    I'm going to file a DCMA takedown against both of them, and the judge, and Miley Cyrus, and TechDirt.

     

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    Anonymous Coward, Sep 12th, 2013 @ 10:19am

    where the fuck do these judges come from? if it was not intended, why have the law in the first place? what is the next 'law' that this freakin' moron is going to say isn't necessary? evidence of committing murder? there is only one solution to this and that is to send it back for clarification by Congress. whichever way they are paid to vote, at least it will have everyone on the same page. it will also prove, once and for all, who is running Congress, the law and the country

     

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    Anonymous Coward, Sep 12th, 2013 @ 11:45am

    Man, I hope 4chan/Anonymous jumps on this. Forget DDOS attacks, I want to see DDMCA attacks! Maybe judges would rethink dumping that whole "checks and balances" thing if 1 billion DMCA notices were being filed every minute.

     

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    Anonymous Coward, Sep 12th, 2013 @ 3:07pm

    I am still trying to understand why it is felt by the author here that the takedown notice(s) was/were bogus? Certainly it cannot be because of what someone said someone else said during confidential negotiations, the respective of said "saids" never being reduced pen to paper. Thus, it has to be something else, but what that something else is does not jump off the paper.

    BTW, saying that it is fair use does not make it so, and saying that consideration of fair use is an immutable requirement pre-filing of a takedown notice is most certainly not a rule that has ever been established (to my knowledge) by either Congress or the Supreme Court.

     

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      That One Guy (profile), Sep 12th, 2013 @ 4:09pm

      Re:

      Re-read the first paragraph, the reason the DMCA claim was bogus is spelled out quite clearly.

      (In a nutshell)
      Person one made a picture for her blog with accompanying text telling person two to "take (it) back to your blog and obsess over (it)".

      Person two took her up on the offer and posted the pic on her blog, alongside several comments regarding it and person one.

      Person one then claimed that despite clearly telling person two that they were free to, and in fact should post the picture on her blog, that person two had somehow 'stolen' the picture, and filed multiple DMCA claims against person two, while publicly gloating over the fact that her actions had forced person two to move her blog several times, and bragging that she would continue to harass her in this fashion.

      That is why it was such a bogus claim, as it would be hard indeed to find a more obvious case of DMCA abuse used to censor and harass someone that the one filing the claims didn't like, which makes the judgement all sorts of messed up.

       

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      ldne, Sep 12th, 2013 @ 8:12pm

      Re:

      The lady who posted the phot publicly stated on her blog for the other blogger to:



      That is an open invitation to use the photo. Therefore, logically, any DMCA notice is fraudulent becuae the ownersaid to use the photo and did so in a public manner

       

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    DRL, Sep 12th, 2013 @ 3:29pm

    Judge Got It Wrong

    Title 17 Section 512(c)(3)A

    "To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: . . .

    (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law."

    Thus you need a good faith belief that the use is not authorized by Title 17 Section 107, which clearly is the law.

     

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    Bovine Creature, Sep 12th, 2013 @ 6:25pm

    Gross Abuse of DMCA

    Here's an interesting example of how the DMCA has been abused by a U.S. based SAP consultant, Murali Krishna Nookella, to White-Wash his dirty past action of masturbating on a plane.

    Nookella made the DMCA look silly by hiring Indian "attorneys" to force a Canadian blogger to remove a genuine, original post:

    http://nshima.com/2013/08/07/indian-lawyer-1-melvin-0/

    How can we prevent such blatant misuse of DMCA?

     

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    Anonymous Coward, Sep 12th, 2013 @ 7:28pm

    This should surprise nobody, but you're totally misreading the case law. Here is the origin of that quote, put in context:

    Thus, the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging, yet barely visible, encroachments. Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards, Smith v. California, 361 U. S. 147; Marcus v. Search Warrant, supra, is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. See, e.g., Thornhill v. Alabama, 310, U.S. 88; Winters v. New York, 333 U. S. 507; NAACP v. Button, 371 U. S. 415.

    "[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated... is finely drawn.... The separation of legitimate from illegitimate speech calls for... sensitive tools...." Speiser v. Randall, 357 U. S. 513, 357 U. S. 525.
    - Bantam Books v. Sullivan

    The court is not saying that there are First Amendment concerns only if the line is dim and uncertain. On the contrary, they are saying that the line is always dim and uncertain, and separating illigitimate speech always calls for sensitive tools.


    The Court there is explicitly talking about obscenity, where the line between protected and unprotected speech is dim and uncertain. This difficulty in separating protected speech from unprotected speech means that ďrigorous procedural safeguardsĒ are needed to ensure that protected speech is not restrained. But what constitutes an ďadequate bulwarkĒ in the case of obscenity differs from whatís adequate in other contexts, and if the separation of protected and unprotected speech in another context is less dim and uncertain, it follows that less bulwarks, i.e., procedural safeguards, are adequate. The sensitivity of the tools is a function of the context at issue.

    That's why you're so wrong when you say this: The funny thing is, since you think that the line between fair use and infringement is easily discernible, that cuts against your argument that there needs to be more process.

    If the use is clearly fair use, then any law made by Congress that allows for stifling fair use is clearly unconstitutional. If the fair use is obvious - as in this case - then Congress is absolutely not allowed to pass any law that infringes upon it.


    I agree that if something is fair use, then itís protected speech. But that wasnít my point. My point is that the easier it is to separate protected from unprotected speech, the less procedural safeguards are needed. Since Mike thinks protected fair use is easily separable from unprotected infringement, then heís necessarily saying that less procedural safeguards are needed.

    If you were right, then the government would be allowed to infringe on any speech it likes - so long as that speech is "easily discernable" as protected expression. Such a claim is oxymoronic, and I'm being generous with the "oxy" part.

    Youíve lost me there. The government canít infringe on protected speech. But Iím talking about prior restraint, which looks at what procedural safeguards must be in place to separate protected from unprotected speech. Again, the harder it is to separate protected from unprotected speech, the more rigorous the procedural safeguards. And vice versa.

    That's why the judge's ruling here is so problematic. He claims that having to take fair use into account would be "at odds with Congress's express intent." But if the use is clearly fair use, then it doesn't matter what Congress's intent is. Because fair use is protected expression, Congress is absolutely not allowed to infringe on fair use, no matter what their intent.

    The issue before the court here is whether the sender of a DMCA takedown notice has to consider fair use. He doesn't. Just because Congress canít infringe upon fair use, which is protected expression, it doesnít follow that Congress must require the sender of a DMCA takedown notice to consider fair use.

    First of all, this case had absolutely nothing to do with "regular piracy." Any moron in a hurry could see that this is clearly fair use, that the copyright owner granted an implied license to post the picture on the blog, and that the DMCA request served no other purpose than to stifle criticism. It is slam-dunk protected expression.

    I never said this case had anything to do with regular piracy. Reread what I wrote.

    Second of all, even if this were "regular piracy," you would be wrong. Wholesale piracy does, indeed, involve some elements of protected expression:
    Copyright infringement, per se, is clearly not speech entitled to First Amendment protection. But there are some creative aspects of downloading music or making it available to others to copy: the value judgment of what is worthy of being copied; the association of one recording with another by placing them together in the same library; the self-expressive act of identification with a particular recording; the affirmation of joining others listening to the same recording or expressing the same idea. Thus, while the aspect of a file-sharer's act that is infringing is not entitled to First Amendment protection, other aspects of it are. [...]

    Other forms of speech also receive such intermediate valuation. [...] The Court need not, and does not, express a view as to the proper place of file-sharing in the speech hierarchy; it is enough for present purposes to determine that it has some First Amendment value.

    - London-Sire v. Does

    Arguably, however, a file sharer is making a statement by downloading and making available to others copyrighted music without charge and without license to do so. Alternatively, the file sharer may be expressing himself or herself through the music selected and made available to others. Although this is not "political expression" entitled to the "broadest protection" of the First Amendment, McIntyre, 514 U.S. at 346, 115 S.Ct. 1511 (quoting Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)),[5] the file sharer's speech is still entitled to "some level of First Amendment protection." Verizon, 257 F.Supp.2d at 260, rev'd on other grounds, Recording Indus. Ass'n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C.Cir.2003).

    I conclude, accordingly, that the use of P2P file copying networks to download, distribute, or make sound recordings available qualifies as speech entitled to First Amendment protection.

    - Sony v. Does

    Those First Amendment protections are limited, but they certainly exist, and "that extra process" (or some sort of "extra process") needs to happen in piracy cases too.


    Youíre looking there at cases where the issue was whether the First Amendment shielded p2p file-sharers from having their anonymity revealed through subpoenas to their ISPs. Thatís got nothing to do with prior restraint or whether the line between protected and unprotected speech is dim and uncertain.

    Nobody - not Mike, not the plaintiffs - was arguing that the recipient of a DMCA notice is "a government actor." They were, and are, arguing that it is unconstitutional for Congress to pass a law that allows the sender of the DMCA notice to block legitimate speech. The lawsuit was against Crosley-Corcoran, not against either of the ISP's that shut Tuteur's website down. And she was able to do it solely because of statutes created by Congress.

    Mike specifically argues this in the link he himself provided in the article above: ďThe 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.Ē

     

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      Gwiz (profile), Sep 12th, 2013 @ 7:54pm

      Re:

      Mike specifically argues this in the link he himself provided in the article above: ďThe 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.Ē


      And that argument makes sense.

      How would this be any different than a private red light camera company issuing traffic tickets on behalf of a city? The DMCA is authorizing the rights holders to issue legal notices with the might of the government behind them.

      Wouldn't they both be legally considered "the government and/or it's agents"?

       

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      Karl (profile), Sep 13th, 2013 @ 3:05pm

      Re:

      The Court there is explicitly talking about obscenity, where the line between protected and unprotected speech is dim and uncertain.

      The "dim and uncertain" line was specifically about obscenity. But the rest was not. It was about the tools needed to protect free speech in general, and about how obscenity in particular was "but a special instance of the larger principle."

      Again, the harder it is to separate protected from unprotected speech, the more rigorous the procedural safeguards.

      This is correct...

      And vice versa.

      ...but this is wrong.

      That the line is "dim and uncertain" is one factor in determining whether procedural safeguards are needed. But it is not the only one, and in fact it is not even the primary one. The safeguards are needed so that protected speech is not abridged when attempting to regulate (or under the guise of regulating) unprotected speech. Even when the line is not "dim and uncertain," laws that regulate speech can be prior restraint if they regulate protected speech as a consequence. And even laws which ostensibly do not regulate speech at all (such as a tax on ink) may be prior restraint.

      In any case, Mike never said that fair use in all cases was an easier determination to make than a determination of obscenity. It is certainly a harder determination to make than child pornography, for instance, and laws that ostensibly prohibit child pornography have often been declared unconstitutional prior restraint.

      The issue before the court here is whether the sender of a DMCA takedown notice has to consider fair use. He doesn't. Just because Congress canít infringe upon fair use, which is protected expression, it doesnít follow that Congress must require the sender of a DMCA takedown notice to consider fair use.

      Not only can Congress not infringe upon protected expression, they cannot pass a law that results in infringement upon protected expression. If a law against unprotected speech allows the suppression of protected speech, then that law is unconstitutional, even if it regards private actions:
      We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court--that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute.
      - New York Times v. Sullivan

      I never said this case had anything to do with regular piracy.

      Then you shouldn't have brought it up. Either it's a red herring, or you're making the fallacy of the excluded middle. Either way, you're just derailing the conversation.

      Youíre looking there at cases where the issue was whether the First Amendment shielded p2p file-sharers from having their anonymity revealed through subpoenas to their ISPs. Thatís got nothing to do with prior restraint

      It certainly has to do with the First Amendment. It is the First Amendment that protects the right to anonymous speech, so if those p2p file-sharers did not have any First Amendment protections, then the court would not have to consider whether they had the right to anonymous speech. They do, so the courts did.

      Any time there are laws that impact free speech rights, there must be some kind of determination whether the laws are constitutional under the First Amendment. That determination may not (and often does not) come out in the speaker's favor, but the determination must be made.

      Mike specifically argues this in the link he himself provided in the article above:

      Saying that someone is "compelled to do [something] by the government" is not arguing that they are "a government actor." By your definition, the booksellers in the Bantam case, and the newspaper in Near, would be "government actors." I've never heard anyone argue this, ever. Mike certainly wasn't, nor was Professor Seltzer in the paper Mike quoted.

       

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    Anonymous Coward, Sep 13th, 2013 @ 3:14pm

    That is entirely correct. Being unconstitutional under the First Amendment requires only two things: 1. that a law abridge freedom of speech, and 2. that the law be passed by Congress. The Fourteenth Amendment's Due Process Clause extends this to state laws as well.

    You're missing much. Judicial or administrative actions can violate Free Speech Clause of the First Amendment, even though not applying a law passed by Congress. A law passed by Congress can violate other parts of the First Amendment as well, such as the Establishment Clause.

    The government does not have to be a party in the case; they only have to create the law.

    In fact, most of the landmark First Amendment cases (New York Times Co. v. Sullivan, Hustler Magazine v. Falwell, etc.) involved libel, which is also a dispute between private parties. If the original poster was correct, the First Amendment would not apply in libel cases, either, which is clearly not true.


    Can you find any prior restraint cases where the censor was not the government, i.e., a state actor? We're talking about prior restraint, not substantive challenges to statutes such as Sullivan, Falwell, and the like.

     

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      Karl (profile), Sep 13th, 2013 @ 5:02pm

      Re:

      Can you find any prior restraint cases where the censor was not the government, i.e., a state actor?

      Sure thing:
      In this case, we have found that to the extent Suntrust suffers injury from TWDG's putative infringement of its copyright in GWTW, such harm can adequately be remedied through an award of monetary damages. Moreover, under the present state of the record, it appears that a viable fair use defense is available. Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall's ideas or viewpoint in the form of expression that she chose.
      - Suntrust v. Houghton Mifflin

      Rather, we need only point out that the injunction, as written, has now lost its underlying rationale. [...] Consequently the injunction, as written, now amounts to an overly broad prior restraint upon speech, lacking plausible justification.
      - Tory v. Cochran

      Thus, we conclude the issuance of a temporary injunction would have been an improper prior restraint.
      - Dibon Solutions V. Nanda

      The modified order of injunction prohibits contact between Vrasic and Leibel and, among other things, enjoins Vrasic "[f]rom using the name or likeness of LEIBEL for commercial purposes"; "[f]rom using the words 'Lorne' together with 'Leibel' for any commercial purpose"; and "[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease" her book "as previously published," allowing her to publish a work only "so long as the work does not use the words 'Lorne' and/or 'Leibel,' alone or in any combination." While lodging no challenge to the order's "no contact" provisions, Vrasic insists the injunction must be reversed to the extent it enjoins her speech. We agree. [...]

      Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. [...] Accordingly, the modified temporary injunction is hereby reversed in its entirety, save that portion of the order enjoining Vrasic from contacting Leibel.
      - Vrasic v. Leibel

      Respondent real estate broker applied for and obtained from the Illinois courts an injunction enjoining petitioners from distributing any literature in the City of Westchester, on the ground that their leaflets, critical of respondent's alleged "blockbusting" and "panic peddling" activities in the Austin area of Chicago, invaded respondent's right of privacy, and were coercive and intimidating, rather than informative, thus not being entitled to First Amendment protection.

      Held: Respondent has not met the heavy burden of justifying the imposition of the prior restraint of petitioners' peaceful distribution of informational literature of the nature disclosed by this record.
      - Organization for a Better Austin v. Keefe

      I'm sure you can find a lot more if you use the Googler.

      We're talking about prior restraint, not substantive challenges to statutes such as Sullivan, Falwell, and the like.

      The Falwell case was not a substantive challenge to any statute.

      And keep in mind that substantive challenges to statutes are also prior restraint: "For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms..." (Staub v. City of Baxley). There are other substantive challenges that are explicitly called "prior restraint" if you want to look for them.

      In any case, substantive First Amendment challenges make the law just as unconstitutional as procedural prior restraint, so I have no idea why you're only focusing on the latter.

      But to answer your question, the reason prior restraint cases so often involve the government, is because they're the ones with the most power to do it. For example, in civil cases, adversarial proceedings almost always occur before any speech is enjoined or expressive articles are seized. That's not true as often in criminal cases, and it's why procedural safeguards are doubly important in those cases.

       

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    meh, Sep 13th, 2013 @ 3:16pm

    meh

    Well, in Europe there would be nothing questionable about the copyright infringement. Further, she might've broken some privacy law despite that the photo was public, not shure though.

     

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    Anonymous Coward, Sep 13th, 2013 @ 3:27pm

    And since you don't seem to see where Mike is arguing prior restraint by the recipient of a DMCA takedown notice, let me show you the relevant posts.

    First, Mike posted this in 2010, linked to in the post above: "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."

    The reason Mike is focusing on the takedown notice recipient being "compelled" to take the material down is because there has to be a state actor for the prior restraint doctrine to apply. Mike in that post is discussing a paper by Wendy Seltzer. If you read her paper, you'll see that she also makes the argument that the recipient of a takedown notice is a state actor. She offers no analysis of the state action doctrine whatsoever, and her claims are not supported by reference to any case law or commentary. It's a completely unsupported and conclusory claim. Yet, Mike cites it as persuasive. Sort of telling, if you ask me.

    This past August, Mike brought up the argument again: "This is why the DMCA takedown process needs to have real teeth behind punishment for bogus takedowns. It seems fairly clear to some of us that the current DMCA takedown process itself is a clear First Amendment violation, in that it effectively requires content to be restrained prior to any adversarial hearing or review."

    Mike there links back to the 2010 post, and he clearly is arguing that there's not enough procedural safeguards with DMCA takedown notices such that it's a prior restraint. Again, he states that the DMCA "requires" the recipient to act. This is because he needs the private party who receives the takedown notice to be a state actor for the prior restraint doctrine to apply. Of course, the DMCA doesn't require anyone to do anything, and it merely entices people to an act in the same exact way that the threat of secondary liability already entices them to act. But that's another story.

    And then in this post he repeats the claim, linking back to that 2010 post of his where he argued prior restraint. I appreciate that you're willing to back up Mike's arguments, Karl, because clearly Mike is neither willing nor able to do that himself. I agree with you that the DMCA can be challenged on a substantive First Amendment claim, but I'm trying to discuss Mike's notion that the takedown procedures are prior restraints.

     

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    Anonymous Coward, Sep 13th, 2013 @ 3:44pm

    The "dim and uncertain" line was specifically about obscenity. But the rest was not. It was about the tools needed to protect free speech in general, and about how obscenity in particular was "but a special instance of the larger principle."

    Yes, the larger principle being that the more difficult it is to separate protected from unprotected speech, the greater the procedural safeguards.

    That the line is "dim and uncertain" is one factor in determining whether procedural safeguards are needed. But it is not the only one, and in fact it is not even the primary one. The safeguards are needed so that protected speech is not abridged when attempting to regulate (or under the guise of regulating) unprotected speech. Even when the line is not "dim and uncertain," laws that regulate speech can be prior restraint if they regulate protected speech as a consequence. And even laws which ostensibly do not regulate speech at all (such as a tax on ink) may be prior restraint.

    Yes, a law that regulates speech can be a prior restraint, even where the line is not dim and uncertain. But youíre missing the point which is that when the line is not dim and uncertain, then thereís no need for those extraordinary procedural safeguards.

    In any case, Mike never said that fair use in all cases was an easier determination to make than a determination of obscenity. It is certainly a harder determination to make than child pornography, for instance, and laws that ostensibly prohibit child pornography have often been declared unconstitutional prior restraint.

    There are many older opinions where the courts say that the determination of child pornography is simple such that extraordinary procedural safeguards are not needed. There are also more recent cases that say the safeguards are needed because the Supreme Court has said that simulated child pornography is protected, and itís getting more difficult to tell the difference as technology makes it more realistic. These cases only prove my point which is that the harder it is to separate protected from unprotected speech, the more procedural safeguards are needed. And the less difficult it is, the less procedural safeguards are needed. That said, if you have examples of where Mike says that he thinks determining whether something is fair use or not is difficult, Iíd love to see it. I personally think that itís almost always difficult, if not impossible, to determine ex ante whether a use is fair. This means, ironically enough, that I think more procedural safeguards are needed than Mike does when itís fair use.

    Not only can Congress not infringe upon protected expression, they cannot pass a law that results in infringement upon protected expression. If a law against unprotected speech allows the suppression of protected speech, then that law is unconstitutional, even if it regards private actions:
    We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court--that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute.
    - New York Times v. Sullivan


    Naturally, I would never suggest otherwise. Iím trying to talk about prior restraint though, not substantive challenges to libel statutes.

    Then you shouldn't have brought it up. Either it's a red herring, or you're making the fallacy of the excluded middle. Either way, you're just derailing the conversation.

    Or I was simply pointing out that what procedural safeguards are needed depends on the context.

    It certainly has to do with the First Amendment. It is the First Amendment that protects the right to anonymous speech, so if those p2p file-sharers did not have any First Amendment protections, then the court would not have to consider whether they had the right to anonymous speech. They do, so the courts did.

    That still has nothing to do with prior restraint.

    Any time there are laws that impact free speech rights, there must be some kind of determination whether the laws are constitutional under the First Amendment. That determination may not (and often does not) come out in the speaker's favor, but the determination must be made.

    Yep. Still irrelevant to the prior restraint claim.

    Saying that someone is "compelled to do [something] by the government" is not arguing that they are "a government actor." By your definition, the booksellers in the Bantam case, and the newspaper in Near, would be "government actors." I've never heard anyone argue this, ever. Mike certainly wasn't, nor was Professor Seltzer in the paper Mike quoted.

    I addressed this in the post just above.

     

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      Karl (profile), Sep 13th, 2013 @ 6:17pm

      Re:

      Yes, the larger principle being that the more difficult it is to separate protected from unprotected speech, the greater the procedural safeguards.

      No, the larger principle being that protected speech not be abridged when unprotected speech is regulated. The court cases make this absolutely, 100% clear, so if you still disagree, you are speaking some version of English that nobody else speaks.

      Yes, a law that regulates speech can be a prior restraint, even where the line is not dim and uncertain. But you're missing the point which is that when the line is not dim and uncertain, then there's no need for those extraordinary procedural safeguards.

      Hogwash. The extraordinary procedural safeguards can still be necessary to, for example, protect against overbreadth or selective prosecution. Or any other situation where procedural safeguards are insufficient to protect free speech when unlawful speech is regulated.

      There are many older opinions where the courts say that the determination of child pornography is simple such that extraordinary procedural safeguards are not needed. There are also more recent cases that say the safeguards are needed because the Supreme Court has said that simulated child pornography is protected, and it's getting more difficult to tell the difference as technology makes it more realistic.

      And there are other cases, where the court ruled that particular safeguards are insufficient, regardless of the ease of determination. Cases like CDT v. Pappert. The court ruled that the law was unconstitutional for both subtantive and procedural prior restraint reasons. Here's the entire prior restraint section:
      The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term Ďprior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. The Court used the term to describe a Rhode Island Commission's practice of sending letters to book distributors that asked the distributors to remove books from circulation in Bantam Books v. Sullivan, 372 U.S. 58 (1962) and a procedure that allowed courts to order pre-trial 90 seizure of films alleged to be obscene in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 51-52 (1989).

      In Bantam Books, the Court ruled on a regulatory scheme implemented by the state of Rhode Island. The state created the Rhode Island Commission to Encourage Morality in Youth, and this commission sent book distributors letters informing them that books they were distributing were "objectionable" and asking them to "cooperate" by removing this material from book stores. Id. at 61-63. The letters also stated that "the Attorney General will act for us in the case of non-compliance." Id. at 63. In response, plaintiffs stopped further circulation of copies and "instructed field men to visit retailers and to pick up all unsold copies." Although these materials were already in circulation, the Court referred to this system as a "prior administrative restraint" and ruled it was unconstitutional because there was not "an almost immediate judicial determination of the validity of the restraint" and the publisher or distributor was not entitled to notice and a hearing.

      In Fort Wayne Books v. Indiana, 489 U.S. 46 (1989), the Court held that a finding of probable cause by a state court was not sufficient to allow seizure of material "presumptively protected by the First Amendment." "While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing." Id. at 63. Like Bantam Books, the materials in Fort Wayne were already in circulation. They were removed from circulation by a state court order. According to the Court, "our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation." Ft. Wayne Books v. Indiana, 489 U.S. 46, 66 (1989).

      Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard. FOF ∂∂ 51-54, 80- 82.

      Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past. Pls.' Mot. at 25-26. Plaintiffs compare this burden to the permanent ban on the publication of a newspaper with a certain title, Near v. Minnesota, 283 U.S. 697 (1931), or a permanent injunction against showing films at a movie theater, Vance v. Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute that provided for a permanent injunction against a "malicious, scandalous, and defamatory newspaper, magazine or other periodical." Near, 283 U.S. at 701-702. Near involved a county attorney who obtained an injunction against the publishers of a newspaper called "The Saturday Press" under a statute preventing them from "publishing, circulating, or having in their possession any future editions of said The Saturday Press." Id. at 705. The statute at issue in Near was held to be unconstitutional because it permitted censorship of future publications based on material published in the past. See Universal Amusement Co. v. Vance, 404 F. Supp. 33, 44 (S.D. Tex. 1975) ("In both [Near and Vance] the state made the mistake of prohibiting future conduct after a finding of undesirable present conduct.").

      There are some similarities between a newspaper and a web site. Just as the content of a newspaper changes without changing the title of the publication, the content identified by a URL can change without the URL itself changing. FOF 24. In fact, it is possible that the owner or publisher of material on a web site identified by a URL can change without the URL changing. Plaintiffs demonstrated this by purchasing the http://www.littleangels.tv/tr URL and converting the alleged child pornography web site into a web site dedicated to a description of this case. FOF 196. Moreover, an individual can purchase the rights to a URL and have no way to learn that the URL has been blocked by an ISP in response to an Informal Notice or court order. FOF 196. Despite the fact that the content at a URL can change frequently, the Act does not provide for any review of the material at a URL and, other than a verification that the site was still blocked thirty days after the initial Informal Notice, the OAG did not review the content at any blocked URLs. FOF 191-92. Moreover, other than the instances in which complaints were made about blocked innocent content, ISPs have continued to maintain their blocking action. Specifically, WorldCom, Comcast, AOL, and Verizon all testified that they routinely maintain the blocks implemented in response to Informal Notices or, with respect to World Com, the court order. FOF 193.

      Defendant argues that it is not necessary to hold an adversary hearing before material is removed from circulation because the criminal trial that must be held before an ISP can be convicted will provide the procedural due process required by the First Amendment. Def.'s Supp. Mem. at 10. The Court rejects this argument. A similar argument was rejected by the Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965), an obscenity case. In that case, the Court held that a statute that required a theater owner to receive a license before exhibiting a film was unconstitutional because the statute did not, inter alia, "assure a prompt final judicial decision" that the film was obscene. Id. at 59-60. The Act does not provide for any review of a judge's ex parte determination that a web site contains child pornography.

      Defendant misses the mark when he focuses on the fact that criminal liability will not be imposed until after a criminal trial. The Court's First Amendment analysis must focus on when speech is suppressed and, under the Act, speech is suppressed when the court order is issued. Under the First Amendment, more procedures are necessary before speech can be suppressed than are required before an individual can be arrested. Although evidence of probable cause is sufficient to make an arrest, Fort Wayne holds that a finding of probable cause is not sufficient to completely remove a publication from circulation. As explained by the Seventh Circuit, "[w]hile at first glance it may seem odd to require more judicial protection for the liberty of one's books than for one's body, the distinction reflects this country's great concern with the chilling effect on protected speech brought on by a government seizure." United States v. Moore, 215 F.3d 681, 685 (7th Cir. 2000).

      The fact that an ISP can challenge a judge's child pornography determination in a criminal prosecution does not save the Act. Only one ISP, WorldCom, challenged an Informal Notice and then promptly complied with a court order obtained by the OAG. An ISP has little incentive to challenge the suppression of a web site with which it has no business relationship. As stated by the Supreme Court, a statute that suppresses speech "must be tested by its operation and effect." Near v. Minnesota, 283 U.S. 697, 708 (1931). The operation and effect of this Act is that speech will be suppressed when a court order is issued, and the procedural protections provided by the Act before the order can issue are insufficient to avoid constitutional infirmity.

      Notice that not once in that entire section do they examine the issue of how "dim and uncertain" the line is between child pornography and protected speech. They do so later, in a separate procedural analysis, but has no bearing on the above prior restraint analysis. They conclude: "Moreover, even if fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient." The Act would be unconstitutional even if the line was bright and certain.

      So, you're wrong. Procedures are insufficient, no matter what, "if material protected by the First Amendment is removed from circulation." It's not the "dim and uncertain" line that triggers these protections, it's the First Amendment requirement that protected expression should never be abridged.

      Naturally, I would never suggest otherwise.

      Except when you did suggest it, by claiming that a First Amendment violation requires a "state actor."

      That still has nothing to do with prior restraint.

      It has everything to do with whether this case makes the DMCA a "violation of the First Amendment," which is the topic.

      I addressed this in the post just above.

      No, you didn't. You simply lied (again) about what Mike and Prof. Seltzer say. Your claim is that they are "arguing prior restraint by the recipient of a DMCA takedown notice." They are not, and nobody in their right mind would think that they were.

      If there were no such thing as the DMCA or secondary copyright liability, then you would have a point. They could take down whatever they want, and there would be no First Amendment issue. But the fact that they are coerced into doing so by law, passed by Congress, makes it a First Amendment issue.

      According to this judge's interpretation of the DMCA, the force of law allows censorship of wholly protected speech for any reason whatsoever, so long as you do it under the guise of protecting your copyright. That is, without a doubt, a First Amendment violation. If the judge is right, then the DMCA is unconstituitonal. Of course, I don't think he's right.

       

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        Gwiz (profile), Sep 13th, 2013 @ 7:05pm

        Re: Re:

        So basically paraphrased in layman's term it's:

        A law itself can be considered prior restraint and therefore a First Amendment violation. The DMCA's safety valve against that is Fair Use. Therefore, this ruling effectually disables that safety valve by not requiring DMCA filers to consider Fair Use.

        Is that correct?

         

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          Karl (profile), Sep 14th, 2013 @ 8:34pm

          Re: Re: Re:

          A law itself can be considered prior restraint and therefore a First Amendment violation. The DMCA's safety valve against that is Fair Use. Therefore, this ruling effectually disables that safety valve by not requiring DMCA filers to consider Fair Use.

          Not just fair use, but any defense to copyright infringement claims (de minimis, misidentification, the fact that the content was authorized, etc). Essentially, it gives copyright holders free reign to censor anyone without consequence, while those who are censored have no recourse at all.

          If 512(f) was actually enforceable - like all the other parts of 512 - then the DMCA would pass Constitutional muster, because there would actually be consequences for censoring protected speech.

          This is why I strongly disagree with Judge Stearns' reading of the DMCA. If rights holders can legally force ISPs to take down material, without considering whether the material is infringing under the law, then the DMCA is clearly unconstitutional.

          I somehow doubt that's what Congress had in mind, but even if it was, Congress doesn't get to sidestep the First Amendment for the sake of expediency.

           

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    Anonymous Coward, Sep 13th, 2013 @ 7:01pm

    Sure thing:

    In this case, we have found that to the extent Suntrust suffers injury from TWDG's putative infringement of its copyright in GWTW, such harm can adequately be remedied through an award of monetary damages. Moreover, under the present state of the record, it appears that a viable fair use defense is available. Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall's ideas or viewpoint in the form of expression that she chose.

    - Suntrust v. Houghton Mifflin

    Rather, we need only point out that the injunction, as written, has now lost its underlying rationale. [...] Consequently the injunction, as written, now amounts to an overly broad prior restraint upon speech, lacking plausible justification.

    - Tory v. Cochran

    Thus, we conclude the issuance of a temporary injunction would have been an improper prior restraint.

    - Dibon Solutions V. Nanda

    The modified order of injunction prohibits contact between Vrasic and Leibel and, among other things, enjoins Vrasic "[f]rom using the name or likeness of LEIBEL for commercial purposes"; "[f]rom using the words 'Lorne' together with 'Leibel' for any commercial purpose"; and "[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease" her book "as previously published," allowing her to publish a work only "so long as the work does not use the words 'Lorne' and/or 'Leibel,' alone or in any combination." While lodging no challenge to the order's "no contact" provisions, Vrasic insists the injunction must be reversed to the extent it enjoins her speech. We agree. [...]

    Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. [...] Accordingly, the modified temporary injunction is hereby reversed in its entirety, save that portion of the order enjoining Vrasic from contacting Leibel.

    - Vrasic v. Leibel

    Respondent real estate broker applied for and obtained from the Illinois courts an injunction enjoining petitioners from distributing any literature in the City of Westchester, on the ground that their leaflets, critical of respondent's alleged "blockbusting" and "panic peddling" activities in the Austin area of Chicago, invaded respondent's right of privacy, and were coercive and intimidating, rather than informative, thus not being entitled to First Amendment protection.

    Held: Respondent has not met the heavy burden of justifying the imposition of the prior restraint of petitioners' peaceful distribution of informational literature of the nature disclosed by this record.

    - Organization for a Better Austin v. Keefe

    I'm sure you can find a lot more if you use the Googler.


    It never ceases to amaze me that your posts are marked ďinsightful.Ē A court-issued injunction is one of the classic presentations of a prior restraint. The court is the censor. The court is the state actor. The issue is whether the court is imposing a prior restraint by issuing the injunction. There are in fact cases out there where a private party was considered to be a state actor such that the prior restraint doctrine applied. You havenít found them, and I wonít point you to them since youíre confused enough as it is. You're good at finding the puzzle pieces, but not so good at putting the pieces together.

    The Falwell case was not a substantive challenge to any statute.

    Sure it was. It was a substantive First Amendment challenge to intentional infliction of emotional distress under Virginia law. The issue was whether the First Amendment mandated that the actual malice standard from Sullivan applied.

    And keep in mind that substantive challenges to statutes are also prior restraint: "For these reasons, the ordinance, on its face, imposes an unconstitutional prior restraint upon the enjoyment of First Amendment freedoms..." (Staub v. City of Baxley). There are other substantive challenges that are explicitly called "prior restraint" if you want to look for them.

    The issue there was whether the Cityís licensing scheme was a prior restraint. A licensing scheme is another classic presentation of a prior restraint. The licensing authority is the censoring state actor. The lack of adequate procedural safeguards can render such a scheme unconstitutional. Itís not a substantive challenge. Itís a challenge as to the adequacy of the procedures employed under the prior restraint doctrine.

    In any case, substantive First Amendment challenges make the law just as unconstitutional as procedural prior restraint, so I have no idea why you're only focusing on the latter.

    Iím focusing on prior restraint because Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint. He's arguing that it's a prior restraint because speech is removed from circulation without adequate procedural safeguards to ensure that that speech is unprotected. I'm pointing out that it's not prior restraint since it's not the government removing the speech from circulation.

    But to answer your question, the reason prior restraint cases so often involve the government, is because they're the ones with the most power to do it. For example, in civil cases, adversarial proceedings almost always occur before any speech is enjoined or expressive articles are seized. That's not true as often in criminal cases, and it's why procedural safeguards are doubly important in those cases.

    They involve the government, or I should say a state actor, because without one there can be no prior restraint. Thatís my point. If I send Mike a DMCA takedown notice and he removes the complained-of material, heís not magically transformed into a state actor such that his removal of the material is a prior restraint.

     

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      Gwiz (profile), Sep 13th, 2013 @ 7:15pm

      Re:

      They involve the government, or I should say a state actor, because without one there can be no prior restraint.

      Karl's arguments that a state actor isn't required are very convincing, but that aside, why wouldn't you consider the sender of the DMCA notice an authorized agent of the state and therefore a state actor?

       

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      Karl (profile), Sep 13th, 2013 @ 9:18pm

      Re:

      The court is the censor. The court is the state actor.

      The injunction is sought by the plaintiffs. The court is acting on behalf of a private party, not on behalf of the state itself. Exactly as in copyright cases, and exactly as in the instant case.

      It was a substantive First Amendment challenge to intentional infliction of emotional distress under Virginia law.

      The challenge didn't render any Virginia statute unconstitutional. It rendered the verdict unconstitutional. In fact, there is no Virginia statute to challenge; the emotional distress standard arises entirely from tort case law, not state statutes.

      The issue there was whether the Cityís licensing scheme was a prior restraint.

      I wasn't making a point about "state actors." My point was that it was a substantive, rather than procedural, challenge. And it was a substantive challenge.

      Iím focusing on prior restraint because Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint.

      Except he's not. You really should stop lying about this. He's arguing (along with others) that the law is unconstitutional under the First Amendment. He's never argued that the DMCA magically transforms ISP's into state actors, or some such nonsense.

      They involve the government, or I should say a state actor, because without one there can be no prior restraint.

      I am aware of no case, ever, that suggests this is true. It certainly contradicts the language of the First Amendment, which does not require a state actor, only that Congress make a law that abridges freedom of speech. There is no requirement that the decision about what specific speech to abridge come from the state.

      Certainly, the law (hence the government) is an actor in the DMCA system, because ISP's (&etc) face the near-certainty of legal sanctions if they don't comply. It is the only reason that they do comply. The fact that the notices are not official court orders didn't fly with Pennsylvania's "informal notices," nor with Rhode Island's "informal sanctions," and it doesn't fly here.

      I posted this thought experiment above, and I'll put it to you now. Suppose that Congress passed a law that allowed every private citizen to demand the removal of any speech that they didn't like, for any reason whatsoever. Anyone who didn't censor the speech would face the possibility of legal sanctions.

      Do you honestly believe that Congress would not be in violation of the First Amendment? Because that is the only conclusion that is consistent with your claims.

      But even granting your interpretation, that means this court is in violation of the First Amendment. After all, they are a state actor, and they are allowing the censorship of wholly protected material, by a plaintiff who they admit is abusing the law.

      If the judge is (as he believes) enforcing the laws made by Congress, then Congress has made a law abridging the freedom of speech, and it has now been enforced by the court. Both are state actors, even by your weaselly definition, so the First Amendment is absolutely in play.

       

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    Anonymous Coward, Sep 13th, 2013 @ 8:08pm

    No, the larger principle being that protected speech not be abridged when unprotected speech is regulated. The court cases make this absolutely, 100% clear, so if you still disagree, you are speaking some version of English that nobody else speaks.

    Iím discussing prior restraint. Youíre going off on tangents.

    Hogwash. The extraordinary procedural safeguards can still be necessary to, for example, protect against overbreadth or selective prosecution. Or any other situation where procedural safeguards are insufficient to protect free speech when unlawful speech is regulated.

    More tangents. You havenít refuted my claim that, according to the prior restraint doctrine, the amount of procedural safeguards needed is a function of how difficult it is to separate protected from unprotected speech.

    And there are other cases, where the court ruled that particular safeguards are insufficient, regardless of the ease of determination. Cases like CDT v. Pappert. The court ruled that the law was unconstitutional for both subtantive and procedural prior restraint reasons. Here's the entire prior restraint section:
    The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term Ďprior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. The Court used the term to describe a Rhode Island Commission's practice of sending letters to book distributors that asked the distributors to remove books from circulation in Bantam Books v. Sullivan, 372 U.S. 58 (1962) and a procedure that allowed courts to order pre-trial 90 seizure of films alleged to be obscene in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 51-52 (1989).

    In Bantam Books, the Court ruled on a regulatory scheme implemented by the state of Rhode Island. The state created the Rhode Island Commission to Encourage Morality in Youth, and this commission sent book distributors letters informing them that books they were distributing were "objectionable" and asking them to "cooperate" by removing this material from book stores. Id. at 61-63. The letters also stated that "the Attorney General will act for us in the case of non-compliance." Id. at 63. In response, plaintiffs stopped further circulation of copies and "instructed field men to visit retailers and to pick up all unsold copies." Although these materials were already in circulation, the Court referred to this system as a "prior administrative restraint" and ruled it was unconstitutional because there was not "an almost immediate judicial determination of the validity of the restraint" and the publisher or distributor was not entitled to notice and a hearing.

    In Fort Wayne Books v. Indiana, 489 U.S. 46 (1989), the Court held that a finding of probable cause by a state court was not sufficient to allow seizure of material "presumptively protected by the First Amendment." "While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing." Id. at 63. Like Bantam Books, the materials in Fort Wayne were already in circulation. They were removed from circulation by a state court order. According to the Court, "our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation." Ft. Wayne Books v. Indiana, 489 U.S. 46, 66 (1989).

    Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard. FOF 51-54, 80- 82.

    Additionally, as argued by plaintiffs, the Act allows for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past. Pls.' Mot. at 25-26. Plaintiffs compare this burden to the permanent ban on the publication of a newspaper with a certain title, Near v. Minnesota, 283 U.S. 697 (1931), or a permanent injunction against showing films at a movie theater, Vance v. Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute that provided for a permanent injunction against a "malicious, scandalous, and defamatory newspaper, magazine or other periodical." Near, 283 U.S. at 701-702. Near involved a county attorney who obtained an injunction against the publishers of a newspaper called "The Saturday Press" under a statute preventing them from "publishing, circulating, or having in their possession any future editions of said The Saturday Press." Id. at 705. The statute at issue in Near was held to be unconstitutional because it permitted censorship of future publications based on material published in the past. See Universal Amusement Co. v. Vance, 404 F. Supp. 33, 44 (S.D. Tex. 1975) ("In both [Near and Vance] the state made the mistake of prohibiting future conduct after a finding of undesirable present conduct.").

    There are some similarities between a newspaper and a web site. Just as the content of a newspaper changes without changing the title of the publication, the content identified by a URL can change without the URL itself changing. FOF 24. In fact, it is possible that the owner or publisher of material on a web site identified by a URL can change without the URL changing. Plaintiffs demonstrated this by purchasing the http://www.littleangels.tv/tr URL and converting the alleged child pornography web site into a web site dedicated to a description of this case. FOF 196. Moreover, an individual can purchase the rights to a URL and have no way to learn that the URL has been blocked by an ISP in response to an Informal Notice or court order. FOF 196. Despite the fact that the content at a URL can change frequently, the Act does not provide for any review of the material at a URL and, other than a verification that the site was still blocked thirty days after the initial Informal Notice, the OAG did not review the content at any blocked URLs. FOF 191-92. Moreover, other than the instances in which complaints were made about blocked innocent content, ISPs have continued to maintain their blocking action. Specifically, WorldCom, Comcast, AOL, and Verizon all testified that they routinely maintain the blocks implemented in response to Informal Notices or, with respect to World Com, the court order. FOF 193.

    Defendant argues that it is not necessary to hold an adversary hearing before material is removed from circulation because the criminal trial that must be held before an ISP can be convicted will provide the procedural due process required by the First Amendment. Def.'s Supp. Mem. at 10. The Court rejects this argument. A similar argument was rejected by the Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965), an obscenity case. In that case, the Court held that a statute that required a theater owner to receive a license before exhibiting a film was unconstitutional because the statute did not, inter alia, "assure a prompt final judicial decision" that the film was obscene. Id. at 59-60. The Act does not provide for any review of a judge's ex parte determination that a web site contains child pornography.

    Defendant misses the mark when he focuses on the fact that criminal liability will not be imposed until after a criminal trial. The Court's First Amendment analysis must focus on when speech is suppressed and, under the Act, speech is suppressed when the court order is issued. Under the First Amendment, more procedures are necessary before speech can be suppressed than are required before an individual can be arrested. Although evidence of probable cause is sufficient to make an arrest, Fort Wayne holds that a finding of probable cause is not sufficient to completely remove a publication from circulation. As explained by the Seventh Circuit, "[w]hile at first glance it may seem odd to require more judicial protection for the liberty of one's books than for one's body, the distinction reflects this country's great concern with the chilling effect on protected speech brought on by a government seizure." United States v. Moore, 215 F.3d 681, 685 (7th Cir. 2000).

    The fact that an ISP can challenge a judge's child pornography determination in a criminal prosecution does not save the Act. Only one ISP, WorldCom, challenged an Informal Notice and then promptly complied with a court order obtained by the OAG. An ISP has little incentive to challenge the suppression of a web site with which it has no business relationship. As stated by the Supreme Court, a statute that suppresses speech "must be tested by its operation and effect." Near v. Minnesota, 283 U.S. 697, 708 (1931). The operation and effect of this Act is that speech will be suppressed when a court order is issued, and the procedural protections provided by the Act before the order can issue are insufficient to avoid constitutional infirmity.

    Notice that not once in that entire section do they examine the issue of how "dim and uncertain" the line is between child pornography and protected speech. They do so later, in a separate procedural analysis, but has no bearing on the above prior restraint analysis. They conclude: "Moreover, even if fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient." The Act would be unconstitutional even if the line was bright and certain.


    Pappert only proves my point. First of all, notice how the prior restraint analysis is under ďC. Procedural First Amendment IssuesĒ as opposed to the section before it labeled ďB. Substantive First Amendment Issues.Ē Since you don't seem to understand the difference between substantive and procedural First Amendment analysis, I suggest you study those sections. But the fact is that you didnít include the ďentire prior restraint sectionĒ as you claim, and the answer to your query begins, as it so often does, right where you left off. See the subsection called ď2. Child Pornography v. Obscenity.Ē That subsection begins: ďDefendant argues that fewer procedural protections are required for the removal from circulation of child pornography, as compared with obscenity, because the child pornography determination is easier than *659 the obscenity determination. The Court rejects this argument.Ē The analysis in that section is exactly what Iím talking about. The level of difficulty in separating protected from unprotected speech determines the amount of procedural safeguards needed.

    So, you're wrong. Procedures are insufficient, no matter what, "if material protected by the First Amendment is removed from circulation." It's not the "dim and uncertain" line that triggers these protections, it's the First Amendment requirement that protected expression should never be abridged.

    No. Even the court in Pappert acknowledges that the procedural safeguards needed vary with the context.

    Except when you did suggest it, by claiming that a First Amendment violation requires a "state actor."

    Of course a First Amendment violation requires a state actor. It always does, every single time. Thatís basic hornbook law.

    It has everything to do with whether this case makes the DMCA a "violation of the First Amendment," which is the topic.

    Thatís been the topic for you perhaps, but I have been absolutely clear that Iím addressing Mikeís claim that DMCA takedown notice recipients are state actors such that itís a prior restraint.

    No, you didn't. You simply lied (again) about what Mike and Prof. Seltzer say. Your claim is that they are "arguing prior restraint by the recipient of a DMCA takedown notice." They are not, and nobody in their right mind would think that they were.

    Saying I lied is uncalled for. Youíre stating all kinds of non sequiturs and tangents, and Iím not accusing you of bad faith. Did you read Seltzerís journal article? Seltzer does indeed make the claim that a private actor is transformed into a state actor when responding to a DMCA takedown notice: ďThe takedowns resulting from DMCA notifications bear many of the hallmarks of prior restraints on speech: they are imposed to limit speech before any adjudication on the merits of the copyright claims. While takedowns are effected by private actors, service providers are acting Ďin the shadow of the law,í motivated by the state action that established copyright liability and the DMCA. Government cannot insulate itself from responsibility for this abridgment of free speech by routing its influence through third-party service providers." Mike picked up on her argument and ran with it. Iím sorry you donít understand Mikeís or Seltzerís argument, but Iím not lying and itís silly to even go there.

    If there were no such thing as the DMCA or secondary copyright liability, then you would have a point. They could take down whatever they want, and there would be no First Amendment issue. But the fact that they are coerced into doing so by law, passed by Congress, makes it a First Amendment issue.

    Again, Iím talking about prior restraint. The recipient is not a state actor simply because he is incentivized by the safe harbors.

    According to this judge's interpretation of the DMCA, the force of law allows censorship of wholly protected speech for any reason whatsoever, so long as you do it under the guise of protecting your copyright. That is, without a doubt, a First Amendment violation. If the judge is right, then the DMCA is unconstituitonal. Of course, I don't think he's right.

    And thatís got nothing to do with prior restraint.

     

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    Anonymous Coward, Sep 13th, 2013 @ 8:15pm

    Karl's arguments that a state actor isn't required are very convincing, but that aside, why wouldn't you consider the sender of the DMCA notice an authorized agent of the state and therefore a state actor?

    Huh? Karl's argument that a state actor isn't required for the First Amendment to be in play is completely wrong. There can be no First Amendment violation without a state actor. Read up on the state action/actor doctrine if you're genuinely interested. To your question, no, neither the sender nor the recipient of a takedown notice is the agent of the state. Good thought, though, since such an agency relationship could make one a state actor. But merely being incentivized by the promise of a safe harbor isn't enough to make one an agent, especially when you consider that that party is incentivized by the threat of liability for failing to take down the content already--even without the promise of a safe harbor. One of the problems with Mike's theory is that he makes it sound like the safe harbors incentivize people to do something that they aren't already otherwise incentivized to do. They don't.

     

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      Gwiz (profile), Sep 14th, 2013 @ 6:36am

      Re:

      To your question, no, neither the sender nor the recipient of a takedown notice is the agent of the state. Good thought, though, since such an agency relationship could make one a state actor.

      I guess I don't understand why the DMCA filer wouldn't be considered a state agent, like a private red camera company. Both are authorized by the state whether by contract or statue to issue legal notices with the force of the state behind them.




      But merely being incentivized by the promise of a safe harbor isn't enough to make one an agent..

      But the actual initiator of the action is the DMCA sender (with the might of the state behind them). Your argument is akin to saying that the printing press operator who hit the kill switch when forced with an injunction from a court isn't a state actor, so it isn't prior restraint. That doesn't seem to fly.



      ...especially when you consider that that party is incentivized by the threat of liability for failing to take down the content already--even without the promise of a safe harbor.

      Yes, but that other liability you speak of has the built-in feature of having, at least, an adversarial hearing (ie: the higher scrutiny required for First Amendment issues), the DMCA doesn't.

       

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    Anonymous Coward, Sep 14th, 2013 @ 5:43am

    The injunction is sought by the plaintiffs. The court is acting on behalf of a private party, not on behalf of the state itself. Exactly as in copyright cases, and exactly as in the instant case.

    You think that a court issuing an injunction is not state action? Itís amazing how confident you sound as your reach far exceeds your grasp.

    ďThat the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.Ē

    Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

    The same goes for federal courts too. Iíll let you research that one on your own.

    The challenge didn't render any Virginia statute unconstitutional. It rendered the verdict unconstitutional. In fact, there is no Virginia statute to challenge; the emotional distress standard arises entirely from tort case law, not state statutes.

    The Court held that the standard applied was not consistent with the First Amendment. Tort actions can come from either the common law or from statute. In my state, IIED comes from a statute. I donít know where the IIED came from in that case, and I donít really care. Another meaningless tangent.

    I wasn't making a point about "state actors." My point was that it was a substantive, rather than procedural, challenge. And it was a substantive challenge.

    If the issue was whether the licensing scheme was procedurally deficient such that it was a prior restraint, then it was a procedural First Amendment challenge. Again, Iím sorry you donít understand the difference between procedural and substantive First Amendment analysis. You should research that one too.

    Except he's not. You really should stop lying about this. He's arguing (along with others) that the law is unconstitutional under the First Amendment. He's never argued that the DMCA magically transforms ISP's into state actors, or some such nonsense.

    Of course he is. I quoted the language from Seltzer where she makes the argument, and I quoted the arguments from Mike where he runs with it. Iím sorry you donít understand the arguments. The whole reason Seltzer and Mike discuss the DMCA compelling the private actor to take down the content is because they need the private actor to be a state actor for the prior restraint doctrine to apply.

    I am aware of no case, ever, that suggests this is true. It certainly contradicts the language of the First Amendment, which does not require a state actor, only that Congress make a law that abridges freedom of speech. There is no requirement that the decision about what specific speech to abridge come from the state.

    Um, wow. You really are showing your ignorance here. The whole reason a state actor is needed is because the text of the First Amendment itself says that it limits what ďCongressĒ can do. ďCongressĒ has been extended to mean any government actor. That a state actor is needed for a First Amendment violation is so basic and so well-known that it blows my mind that you are doubting it.

    Hereís a couple quotes to get you started:

    ďIt is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state.Ē

    Hudgens v. N. L. R. B., 424 U.S. 507, 513 (1976).

    ďIt is undisputed that First and Fourteenth Amendment protections, codified in 42 U.S.C. ß 1983, are triggered only in the presence of state action and that a private entity acting on its own cannot deprive a citizen of First Amendment rights.Ē

    Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000).

    Certainly, the law (hence the government) is an actor in the DMCA system, because ISP's (&etc) face the near-certainty of legal sanctions if they don't comply. It is the only reason that they do comply. The fact that the notices are not official court orders didn't fly with Pennsylvania's "informal notices," nor with Rhode Island's "informal sanctions," and it doesn't fly here.

    There ya go, now youíre finally discussing the thing Iíve wanted to discuss the whole time. Even without the DMCA, a website that receives notice of infringing content on its system would be motivated to take it down. They would be motivated by the threat of liability for the infringement that they now know about and are materially contributing to. But being motivated by the threat of liability, or the possibility of the lack thereof, doesnít make one a state actor. I suggest you read up on the state action doctrine to get an idea of what it does take to transform a private actor into a state actor.

    I posted this thought experiment above, and I'll put it to you now. Suppose that Congress passed a law that allowed every private citizen to demand the removal of any speech that they didn't like, for any reason whatsoever. Anyone who didn't censor the speech would face the possibility of legal sanctions.

    Do you honestly believe that Congress would not be in violation of the First Amendment? Because that is the only conclusion that is consistent with your claims.


    Such a statute would be unconstitutional, of course. But that situation is not applicable to the one weíre discussing, which is the DMCA.

    But even granting your interpretation, that means this court is in violation of the First Amendment. After all, they are a state actor, and they are allowing the censorship of wholly protected material, by a plaintiff who they admit is abusing the law.

    Youíre missing the point. The court did not order the content taken down. A private party did. Thatís not state action.

    If the judge is (as he believes) enforcing the laws made by Congress, then Congress has made a law abridging the freedom of speech, and it has now been enforced by the court. Both are state actors, even by your weaselly definition, so the First Amendment is absolutely in play.

    Yes, the DMCA can be challenged substantively, but Iím trying to discuss the prior restraint doctrine, as Iíve said several times. I appreciate you sticking with it, Karl. I only wish you knew what you were talking about because that would make these chats a lot more fun for me. Have a great weekend.

     

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      Karl (profile), Sep 14th, 2013 @ 8:18pm

      Re:

      Last post before I spend 16 hours doing homework...

      You think that a court issuing an injunction is not state action?

      You asked for cases where the government was not the censor, by which I thought you meant "the one who chose the speech to be censored." That was the plaintiffs, and the plaintiffs were all private parties, not the government.

      You said earlier that "The First Amendment has no relevance here unless the copyright owner *IS* the state." The cases I quoted showed that you are wrong. The First Amendment is relevant as long as the plaintiffs are acting under the color of law. They do not have to be acting on behalf of the state.

      If the issue was whether the licensing scheme was procedurally deficient such that it was a prior restraint, then it was a procedural First Amendment challenge.

      Yes, but that's not what it was about. The Court found that the licensing scheme was merely a "front" for state censorship. It was unconstitutional "on its face," not due to the procedures implemented - in fact, they never got into procedural issues at all. At least, that's how I read the case.

      The whole reason Seltzer and Mike discuss the DMCA compelling the private actor to take down the content is because they need the private actor to be a state actor for the prior restraint doctrine to apply.

      Passing the "state actor" test, as it is usually applied (i.e. the actor is a private citizen, but is acting on behalf of the state), is unnecessary when the action is specified by statute. In that case, the First Amendment violator is not the private actor, but the state, by enacting the statute.

      I'll repeat what I said earlier: If a law against unprotected speech allows the suppression of protected speech, then that law is unconstitutional, even if it regards private actions. That was the entire point of the passage from New York Times v. Sullivan. It is also what Mike has been saying all along: not that the ISPs violated the First Amendment, but that the state is violating the First Amendment, because statutes enacted by the state bypass due process and do not provide penalties for censoring protected speech.

      Your response was, "I never suggested otherwise." Yet, you've done nothing but suggest otherwise throughout this entire thread.

      I'll make it simple. Both copyright holders and ISPs are only acting because it is what the statute specifies. The DMCA is not a private contract between parties, it is a federal law. ISP's do not take down materials because they have a private contract with the copyright holders, but because they are threatened with legal consequences if they don't.

      When the copyright holder issues a DMCA takedown notice, they are acting under the color of law. When a service provider receives that notice, they are coerced by the state into taking down the content. It may be the case that neither party meet the very high bar required to be a "state actor," but that does not mean that the state does not cause their behavior. The state caused their behavior by enacting the statute that they are following. And that means that the statute must pass Constitutional muster.

      Otherwise, we would have situations like the "thought experiment" I posted above (where the law allows anyone to censor anyone else), and there would be no First Amendment issues whatsoever.

      The only way you would be right is if the DMCA has no legal force whatsoever. That is clearly not true.

      The whole reason a state actor is needed is because the text of the First Amendment itself says that it limits what ďCongressĒ can do.

      And if the DMCA was not a law enacted by Congress, you would be 100% right. But because the DMCA is a law passed by Congress, the DMCA cannot abridge the freedom of speech.

      If free speech was abridged due to a law passed by Congress, then that law is invalid under the First Amendment. Whether the abridgement was done by an actor representing the state, or by a private citizen simply following that law, makes no difference whatsoever to the Constitutional validity of the law itself. None of what you have quoted suggests otherwise.

      Even without the DMCA, a website that receives notice of infringing content on its system would be motivated to take it down.

      Wow, I guess you are suggesting that the DMCA has no legal force whatsoever. That's utterly ridiculous.

      But, even if you were right, then both the ISPs, and the people who put up the allegedly infringing content, have far, far more procedural protections than is granted in the DMCA. The ISPs would not have to take down content without a court-ordered injunction. Such injunctions would not issue prior to an adversarial hearing, during which the alleged infringer could raise the affirmative defenses - fair use, authorization, de minimis, etc - that are constitutionally required by the First Amendment. And, most importantly for this discussion, the copyright holder could face sanctions for bringing a lawsuit in bad faith.

      None of this happens under the DMCA.

      Such a statute would be unconstitutional, of course.

      Not according to your reasoning, it's not. After all, the state isn't the one deciding what speech to censor. They're not making the choice to bring sanctions against people who fail to censor. The censors do not rise to the level of state actors in this scenario, so according to you, everything would be A-OK according to the Constitution.

      And, by the way, this is exactly what the DMCA is allowing right now. At least the DMCA according to Judge Stearns.

      Any copyright holder - which can be anyone, since copyright is automatic - can censor anyone else, for any reason they like. The only requirement is that they think the censored speech contains some portion of their work. Could it be de minimis? Sure. Could it be fair use? Absolutely. Does it actually have to contain any part the copyright holder's work? Nope, so long as it's possible that the copyright holder could think it might contain part of their work.

      Can copyright holders selectively target whose speech they take down? Sure. Can they do it to shut up a political opponent? Absolutely. Can they do it to silence criticism? No problem. Can they censor purely out of spite? Yep.

      The consequences for doing any of the above? None whatsoever.

      Does an ISP have to take it down? If they want to retain safe harbors, they do. Otherwise, they're operating under the continuous threat of lengthy and expensive lawsuits, a single one of which would destroy them even if they win. What happens if they err on the side of caution, and take down too much, or simply cut off the user altogether? Nothing - by law, they are immune from any consequences.

      Does someone whose work has been censored have any recourse? Not much. They can file a counter-notice, which means that their work will "only" be censored for two weeks. Of course, if they do that, their full identities will be recorded, and they're forced to agree to be sued in the United States. Other than that, they have absolutely no recourse against the person who sent the takedown notice, nor the ISP who followed it.

      The statute makes it difficult to speak, but trivial to censor. And it does so without any of the traditional procedural bulwarks that ring about free expression. That opposes both the text and the spirit of the First Amendment.

      ...If you agree with Judge Stearns' interpretation of the DMCA, which I do not.

      Iím trying to discuss the prior restraint doctrine, as Iíve said several times.

      You don't get to choose the topic of discussion. You can go off on tangents, but I have no obligation to follow you.

       

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    Anonymous Coward, Sep 14th, 2013 @ 10:02am

    I guess I don't understand why the DMCA filer wouldn't be considered a state agent, like a private red camera company. Both are authorized by the state whether by contract or statue to issue legal notices with the force of the state behind them.

    The difference is that the red light company is delegated authority by the government to do something that it otherwise wouldn't have the authority to do. They are acting under color of law, fulfilling a role that is traditionally left to the government. The conduct of the red light company can fairly be attributed to the government since they are acting as an agent for the government pursuant to the contractually relationship they have with the government.

    Here's what one court said about whether a red light company is a state actor:
    Private conduct, no matter how wrongful, is outside the reach of ß 1983. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); Carlson v. Roetzel & Andress, No. 08-1975, 2008 WL 5085104, at *1 (8th Cir. Dec.4, 2008). To state a claim for relief under ß 1983, Plaintiffs must allege ďthat they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.Ē American Mfrs. Mut. Ins. Co., 526 U.S. at 49-50. To satisfy the color of state law element of a ß 1983 claim, a private party's conduct allegedly causing the deprivation of a federal right must be ďfairly attributable to the state.Ē Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). This fair attribution element requires, in relevant part, that *17 the party charged with the deprivation [is] a [party] who may fairly be said to be a state actor. This may be ... because [the party charged with the deprivation] acted together with or has obtained significant aid from state officials, or because [the] conduct [of the party charged with the deprivation] is otherwise chargeable to the State.Id. A private corporation may be a state actor for a ß 1983 claim. See Smith v. Insley's, Inc., 499 F.3d 875, 880 (8th Cir.2007) (finding a towing company acted under color of state law in towing, storing, and selling a vehicle).

    A private party may be deemed a state actor where the government delegates a function traditionally reserved to the state alone. Reasonover v. St. Louis County, Mo., 447 F.3d 569, 584 (8th Cir.2006). Such a delegation may occur through a contract arrangement. See, e.g., West v. Atkins, 487 U.S. 42, 54-57, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (private physician contracting with a state prison to attend to the prison inmates' medical needs acted under color of state law when providing medical treatment to an inmate); Holloway v. Conger, 896 F.2d 1131, 1134 (8th Cir.1990) (noting it was undisputed that there was a delegation of statutory authority to a corporation through a contract and, therefore, the company acted under color of state law for the ß 1983 suit).

    A private party may also be deemed a state actor when it is ďa willful participant in joint activity with the State or its agents.Ē Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 422 (8th Cir.2007) (internal quotation marks omitted) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Moreover, a private party who conspires with a state actor may act under color of state law. See Dennis v. Sparks, 449 U.S. 24, 29, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (finding allegations that judge's official act was the result of a corrupt conspiracy involving bribery of the judge were sufficient to show conspiring private parties acted under color of state law for ß 1983). When a ß 1983 claim against a private party is based on allegations that the private party is a willful participant in joint action with the State or its agents, the plaintiff ďmust allege, at the very least, that there was a mutual understanding, or a meeting of the minds, between the private party and the state actor.Ē Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir.1993); see also Pendleton v. St. Louis County, 178 F.3d 1007, 1011 (8th Cir.1999).

    Taking the allegations as true, Plaintiffs' allegations regarding ATS's actions under its contract with City are sufficient to demonstrate that ATS may be a state actor for purposes of the ß 1983 claims against it in Counts III, IV, and V arising out of the enactment and enforcement of the Red Light Camera Ordinance, an ordinance focused on traffic regulation. Therefore, ATS's motion to dismiss the ß 1983 claims because it is not a state actor is denied.
    Hoekstra v. City of Arnold, Mo., 2009 WL 259857, *16-17 (E.D. Mo. Feb. 3, 2009).

    But the actual initiator of the action is the DMCA sender (with the might of the state behind them). Your argument is akin to saying that the printing press operator who hit the kill switch when forced with an injunction from a court isn't a state actor, so it isn't prior restraint. That doesn't seem to fly.

    If a judge orders a printing press shut down, that'd be state action since the judge is the state actor. If your landlord shuts down your printing press, that's a private actor doing it. With the DMCA, neither the sender nor the recipient of the notice is required to do anything. And, as I've mentioned above, the sender already has the incentive to send a takedown notice and the recipient already has the incentive to take down content upon receipt of such notice because of the underlying copyright infringement laws. All the DMCA does is clarify what constitutes sufficient notice to impart knowledge upon the recipient. That helps both senders and recipients know what it takes to be on notice. It also clarifies that the recipient who receives the notice won't be liable for infringement if he responds expeditiously to remove the content. Again, this would be the case even without the DMCA since service providers would potentially be liable for infringement they knew about yet did nothing to stop.

    Yes, but that other liability you speak of has the built-in feature of having, at least, an adversarial hearing (ie: the higher scrutiny required for First Amendment issues), the DMCA doesn't.

    And my point is that, contrary to what Mike seems to think, you don't always get a prior adversarial hearing before allegedly copyright-infringing speech is removed from circulation. The complete dearth of case law applying the prior restraint doctrine to copyright infringement should be his clue. There is some case law, no doubt, but that almost invariably arises only when there's a good fair use defense.

     

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      Gwiz (profile), Sep 14th, 2013 @ 11:05am

      Re:

      The difference is that the red light company is delegated authority by the government to do something that it otherwise wouldn't have the authority to do. They are acting under color of law, fulfilling a role that is traditionally left to the government.

      I'd argue that is exactly what the DMCA did.

      Fair Use is copyright's traditional safety valve against First Amendment violations, which is why there are few copyright/prior restraint cases. The DMCA transferred the traditional role of determining Fair Use from the control of a court and into the hands of the rights holders. The rights holders are acting under the color of the law, especially now that this ruling says they don't even have to consider Fair Use.

       

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    Gwiz (profile), Sep 14th, 2013 @ 11:38am

    ...especially now that this ruling says they don't even have to consider Fair Use.

    Actually, this ruling just confuses things even more. If the rights holders don't have to consider Fair Use, then who does? Nobody, that's who. The safety valve has just been broken.

     

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    Anonymous Coward, Sep 14th, 2013 @ 11:53am

    Actually, this ruling just confuses things even more. If the rights holders don't have to consider Fair Use, then who does? Nobody, that's who. The safety valve has just been broken.

    Rightholders didn't have to consider fair use before sending a notice before the DMCA was enacted, and they don't have to consider it now. It's not a First Amendment issue if the rightholder is a private actor. The only party that might conceivably have to consider fair use would be a state actor. For example, a judge might have to consider fair use before issuing an injunction.

     

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    Anonymous Coward, Sep 14th, 2013 @ 12:02pm

    I'd argue that is exactly what the DMCA did.

    It does nothing of the sort. The government has not been in the business of issuing takedown notices to service providers. That role has traditionally been fulfilled by private rightholders. The government isn't entering into contracts with private rightholders, having them send out notices on the government's behalf. It's nothing like the red light camera operators you asked about.

    Fair Use is copyright's traditional safety valve against First Amendment violations, which is why there are few copyright/prior restraint cases.

    On the contrary, there have been ex parte seizures in copyright law for a very long time. Heck, the Supreme Court even promulgated rules for them at one point. Yet, despite this long practice, there's maybe one or two cases that discuss whether the practice violates the procedural aspects of the First Amendment. The fact is that the DMCA has been around for 15 years, and not single court has considered whether it operates as a prior restraint. The claim is so silly that no one is bringing it.

    The DMCA transferred the traditional role of determining Fair Use from the control of a court and into the hands of the rights holders.

    Private rightholders have issued takedown notices before the DMCA, as they do now under the DMCA. The government didn't transfer anything since the government wasn't doing it before. Again, rightholders have never had to consider fair use since they are not state actors and the First Amendment doesn't apply to them.

    The rights holders are acting under the color of the law, especially now that this ruling says they don't even have to consider Fair Use.

    This ruling has no bearing whatsoever on whether a private party is acting as a state actor. The issue here was whether the DMCA requires the sender to consider fair use, NOT whether the First Amendment requires them to do so. It's a matter of statutory interpretation, not constitutional construction.

     

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      Gwiz (profile), Sep 15th, 2013 @ 7:47am

      Re:

      Private rightholders have issued takedown notices before the DMCA, as they do now under the DMCA. The government didn't transfer anything since the government wasn't doing it before. Again, rightholders have never had to consider fair use since they are not state actors and the First Amendment doesn't apply to them.



      Prior to the DMCA, what happened if an ISP ignored the notice? Nothing until an adversarial hearing, or at least an ex-parte examination. Post-DMCA a DMCA notice now has the element of government coercion (which is also a prong that is examined with the State Action Doctrine, isn't it?) for the ISP to act immediately to remove the possibly protected speech. That is also a transfer of the government's traditional role of enforcing copyright to the ISP. Wouldn't that lean towards considering the DMCA sender AND the ISP both as state actors?

      Not that I think it matters that much since I'm of the camp that a state actor, as you are defining it, isn't actually required.

       

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    Anonymous Coward, Sep 15th, 2013 @ 11:32am

    Prior to the DMCA, what happened if an ISP ignored the notice? Nothing until an adversarial hearing, or at least an ex-parte examination. Post-DMCA a DMCA notice now has the element of government coercion (which is also a prong that is examined with the State Action Doctrine, isn't it?) for the ISP to act immediately to remove the possibly protected speech. That is also a transfer of the government's traditional role of enforcing copyright to the ISP. Wouldn't that lean towards considering the DMCA sender AND the ISP both as state actors?

    I was referring to extra-judicial action, between private actors outside of a courtroom. The same thing happened prior to the DMCA as happens now. The rightholder sent a notice to the service provider, complaining about the infringing material, and the service provider then had to decide whether to take the content down or face potential liability. Once somebody goes to court and asks the court to order the other party to do something, there is then state action and the First Amendment applies. But without that state action, there is no First Amendment issue.

     

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    Anonymous Coward, Sep 15th, 2013 @ 11:36am

    Prior to the DMCA, what happened if an ISP ignored the notice? Nothing until an adversarial hearing, or at least an ex-parte examination. Post-DMCA a DMCA notice now has the element of government coercion (which is also a prong that is examined with the State Action Doctrine, isn't it?) for the ISP to act immediately to remove the possibly protected speech. That is also a transfer of the government's traditional role of enforcing copyright to the ISP. Wouldn't that lean towards considering the DMCA sender AND the ISP both as state actors?

    I was referring to extra-judicial action, between private actors outside of a courtroom. The same thing happened prior to the DMCA as happens now. The rightholder sent a notice to the service provider, complaining about the infringing material, and the service provider then had to decide whether to take the content down or face potential liability. Once somebody goes to court and asks the court to order the other party to do something, there is then state action and the First Amendment applies. But without that state action, there is no First Amendment issue.

     

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      Karl (profile), Sep 15th, 2013 @ 3:09pm

      Re:

      I was referring to extra-judicial action

      Sending a DMCA notice is not an extra-judicial action, as that term is normally applied. The DMCA system did not spring up, ex nihilo, from agreements between rights holders and ISPs. It is not a voluntary agreement between private parties.

      It is an action that is specified, in great detail, by Federal statute. When a rights holder sends a DMCA notice, they are exercising a power granted to them exclusively by the state. They are acting under state authority; it is a state action.
      In the Civil Rights Cases, this Court pointed out that the Amendment makes void 'state action of every kind' which is inconsistent with the guaranties therein contained, and extends to manifestations of 'state authority in the shape of laws, customs, or judicial or executive proceedings.' Language to like effect is employed no less than eighteen times during the course of that opinion. [...]

      Among the phrases appearing in the opinion are the following: 'the operation of state laws, and the action of state officers, executive or judicial'; 'state laws and state proceedings'; 'state law or some state action through its officers or agents'; 'state laws and acts done under state authority'; 'state laws or state action of some kind'; 'such laws as the states may adopt or enforce'; 'such acts and proceedings as the states may commit or take'; 'state legislation or action'; 'state law or state authority.'
      - Shelley v. Kraemer

      When an ISP takes down that content, they are not doing so "voluntarily." They are obeying a Federal statute, and doing so under the threat of legal sanctions - not the threat of private actions. They do so because the law "has exercised coercive power or has provided such significant encouragement" that they have little choice but to take down the content.

      It matters not a whit that they may not actually be taken to court. From Bantam, "the threat of invoking legal sanctions" is enough:
      It is not as if this were not regulation by the state of Rhode Island. The acts and practices of the members and Executive Secretary of the Commission disclosed on this record were performed under color of state law, and so constituted acts of the state within the meaning of the Fourteenth Amendment. [...]

      It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact -- and the finding, being amply supported by the record, binds us -- that Silverstein's compliance with the Commission's directives was not voluntary.

      When a private party complies with a regulation specified by the state, then it is not a voluntary action, even if non-compliance does not actually violate any law. And when a private party exercises power granted to it by statute, it is not a private action, it is "performed under color of state law."

      In order for the DMCA to be non-coercive, it must serve a "purely advisory" purpose; it must have no force of law whatsoever - no privileges for compliance, no penalties for non-compliance. That is utter bullshit. Nobody ever has thought it is merely advisory; if it was, it would be entirely superfluous.

       

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    Anonymous Coward, Sep 15th, 2013 @ 3:52pm

    Sending a DMCA notice is not an extra-judicial action, as that term is normally applied. The DMCA system did not spring up, ex nihilo, from agreements between rights holders and ISPs. It is not a voluntary agreement between private parties.

    Good grief, Karl.

    extrajudicial, adj. (17c) Outside court; outside the functioning of the court system

    Black's Law Dictionary (9th ed. 2009).

    It's done outside of court. There is no judicial supervision. There is no case before the court. You are completely clueless.

    It is an action that is specified, in great detail, by Federal statute. When a rights holder sends a DMCA notice, they are exercising a power granted to them exclusively by the state. They are acting under state authority; it is a state action.

    Nonsense. They can send, and did send, takedown notices without the DMCA. It doesn't grant them any power they wouldn't otherwise have. And even if that were true that it was state action, which it is not, that wouldn't change the fact that it's extra-judicial. You are, once again, on a tangent, completely confused by even the most basic of concepts. All of your quotes about state action have absolutely nothing whatsoever to do with whether the actions are extra-judicial. This is what I mean by you going off on tangents. You're so completely and utterly confused by this stuff that you don't even know when you're changing the subject. You jumble all of these distinct things together into one incoherent mess.

    When an ISP takes down that content, they are not doing so "voluntarily." They are obeying a Federal statute, and doing so under the threat of legal sanctions - not the threat of private actions. They do so because the law "has exercised coercive power or has provided such significant encouragement" that they have little choice but to take down the content.

    Of course it's voluntary. Service providers can and do choose not to take down complained of content. The coercion comes from the threat of liability for copyright infringement, which exists outside and without the DMCA.

    It matters not a whit that they may not actually be taken to court. From Bantam, "the threat of invoking legal sanctions" is enough:

    It is not as if this were not regulation by the state of Rhode Island. The acts and practices of the members and Executive Secretary of the Commission disclosed on this record were performed under color of state law, and so constituted acts of the state within the meaning of the Fourteenth Amendment. [...]

    It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact -- and the finding, being amply supported by the record, binds us -- that Silverstein's compliance with the Commission's directives was not voluntary.


    The Commission there was set up under state law to investigate and recommend the prosecution of certain violations. That's a state actor. That's nothing like a private party sending a takedown notice, and it's certainly got nothing to do with whether takedown notice senders and receivers are acting extra-judicially. The DMCA doesn't deputize rightholders to help enforce state laws on the state's behalf. Rightholders can already send takedown notices without the DMCA.

    When a private party complies with a regulation specified by the state, then it is not a voluntary action, even if non-compliance does not actually violate any law. And when a private party exercises power granted to it by statute, it is not a private action, it is "performed under color of state law."

    Again, rightholders can send and did send notices before the DMCA. The DMCA doesn't grant them any powers.

     

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      Karl (profile), Sep 15th, 2013 @ 5:17pm

      Re:

      extrajudicial, adj. (17c) Outside court; outside the functioning of the court system

      In the context of private contracts, the term "extrajudicial" means "outside the legal system." It is used to describe such things as settling contract disputes through private mediation, or settling a lawsuit outside of a court of law.

      The DMCA is not remotely like this. No party voluntarily agrees to follow the DMCA as part of a private negotiation. Both the form and the content is determined, in minute detail, by Federal statute.

      In any case, an act that is extrajudicial can still be a state action.

      Nonsense. They can send, and did send, takedown notices without the DMCA.

      No, they did not. They may have sent requests to take down material, but those were not "takedown notices" as specified by the DMCA.

      Furthermore, the response was not dictated by any statute. An ISP might, for example, have attempted to escape liability by cutting off all beneficial financial relationships (e.g. ads) with the user, but still leave the content up. Or they may have themselves made a judgement call about the material's legal status. Or they may have feared a lawsuit from the user, rather than the copyright holder, and so done nothing. Or - most likely of all - they simply would not have allowed user-generated content at all, and tons of free speech we take for granted (including this conversation) would never have happened.

      At the time, there was not much case law dealing with secondary liability for ISPs, so it's disingenuous to pretend that ISPs would react exactly the same way absent the DMCA.

      Of course it's voluntary.

      If their response is dictated by statute, it's not "voluntary." Pretending otherwise is utter horseshit.

      The coercion comes from the threat of liability for copyright infringement

      ...and they can only be held liable through state action. What is also coercive is the granting of immunity from state action if ISPs follow the takedown system.

      Don't pretend that website can just ignore the DMCA with legal impunity. It is idiotic. The DMCA is not a mere recommendation.

      The Commission there was set up under state law to investigate and recommend the prosecution of certain violations. That's a state actor.

      The DMCA system was set up under Federal law to handle certain copyright violations. The copyright holders are granted the authority, under Federal statute, to make a determination traditionally handled by Federal judges - namely, that speech can be censored because it "is not authorized by [...] the law." The form and substance of a takedown notice, as well as the legal force behind those notices, are created by Federal statute - not through private contract. As are the specific steps that an ISP must take to escape legal liability - in other words, to escape state action.

      In any case, that wasn't the point. Bantam makes it clear that the threat of state action is coercive enough to render compliance involuntary. If ISPs are even threatened with the state action of a copyright lawsuit for non-compliance, then their compliance is not voluntary.

       

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    Anonymous Coward, Sep 15th, 2013 @ 6:22pm

    In any case, that wasn't the point. Bantam makes it clear that the threat of state action is coercive enough to render compliance involuntary. If ISPs are even threatened with the state action of a copyright lawsuit for non-compliance, then their compliance is not voluntary.

    Good lord. Yesterday, you demonstrated that you didn't even understand that state action is needed for the First Amendment to apply, and now you're an expert on the nuances of the state action doctrine? Under your theory, everything we do to comply with the law makes us a state actor. Law says you can't steal groceries and you don't steal groceries? State actor. Law says don't drive over the speed limit and you don't driver over the speed limit? State actor. Law says pay your taxes on time and you pay your taxes on time? State actor. It's silly. Service providers are threatened with liability for not removing infringing content because of copyright infringement. The DMCA doesn't change that. And just doing something because of fear of liability doesn't turn someone into a state actor. Totally ridiculous, Karl. Sorry. Can you really not see the difference between a state actor like the Commission set up by the state to help it enforce the laws as in Bantam and the DMCA? The DMCA didn't deputize rightholders and have them fulfill a role traditionally fulfilled by the government. The government doesn't traditionally send out takedown notices to alleged infringers.

    And seriously, Karl, I don't get you. You've been shown to be wrong about so many things in these very comments, yet you never admit that you are wrong and you just keep going on and on with the air of an expert about things you know little or nothing about. You've shown that you don't understand that Seltzer and Mike were arguing prior restraint, even though they both clearly were saying that more procedural safeguards are needed before the speech is taken out of circulation--the quintessential prior restraint argument. You've shown that you don't understand the difference between substantive and procedural First Amendment analysis. You've shown that you don't understand what extrajudicial means. You've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment varies with the context and the difficulty of separating protected and unprotected speech. And there's plenty others just above. Yet, you never admit that you were wrong, and you never stop pretending like you're an expert on the very topics that you've demonstrated you have little grasp over. I really don't get it. Is it pride, or just stupidity? I really wonder. Sorry to be so rude, but it's just ridiculous.

     

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      Anonymous Coward, Sep 15th, 2013 @ 8:36pm

      Re:

      No one is going to take you seriously after spamming this website with nothing but farmyard impersonations.

      average_joe just hates it when due process is enforced.

       

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      JJ, Sep 15th, 2013 @ 9:31pm

      Re:

      And seriously, Karl, I don't get you. You've been shown to be wrong about so many things in these very comments, yet you never admit that you are wrong and you just keep going on and on with the air of an expert about things you know little or nothing about.

      I have just read through this entire thread. I've been both a litigator on copyright issues and an academic at a top law school for years, and I don't know how to say this other than Karl cleaned your clock with his analysis. And you don't seem to realize it. You don't seem to understand the First Amendment, either in theory or in practice. You seem to have latched onto things without understanding their context or relevance, and you don't seem to recognize some very basic facts about both the First Amendment and copyright law.

      Karl won this debate hands down, and did so from the very earliest comments. The fact that you're now insulting HIM and pretending he doesn't understand the law is funny. Your understanding of the law reads like a stuck up pre-law undergrad student who read one or two books once, and thinks he understands the law. You don't. Go back to school.

       

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      Karl (profile), Sep 15th, 2013 @ 10:05pm

      Re:

      Under your theory, everything we do to comply with the law makes us a state actor. Law says you can't steal groceries and you don't steal groceries? State actor. Law says don't drive over the speed limit and you don't driver over the speed limit? State actor. [...etc]

      Yes, in all of those situations there is a state actor. It is called the state.

      When private parties obey the law, and the "operation and effect" of that obedience is the loss of Constitutional rights, it's not necessary that the private parties be "state actors." There is already a state actor: the state that enacted the law.

      So if, by some wild stretch of the imagination, driving at the speed limit somehow violated First Amendment rights, then speed limit laws would be unconstitutional.

      On the other hand, if there were no speed limit laws whatsoever, and people (somehow) lost their First Amendment rights when others drive at that particular speed, then driving at that speed wouldn't be unconstitutional.

      The test is whether a private actor's actions can be attributed to the state. When that actor is following laws enacted by the state, that's true by definition.

      You've shown that you don't understand that Seltzer and Mike were arguing prior restraint

      I never said they weren't arguing prior restraint. I said they weren't arguing prior restraint by the ISPs. And they weren't. You are wrong.

      You've shown that you don't understand the difference between substantive and procedural First Amendment analysis.

      No, I've shown that "prior restraint" has also been used to describe a substantive analysis by the courts. And I was right.

      You've shown that you don't understand what extrajudicial means.

      I understand it OK, at least for a non-lawyer. It's just that in this context (the context of private actors and contract law), it's not usually used the way you're using it. "State action" is certainly not a synonym for "judicial action," which is (if I understand you correctly) what you're claiming.

      You've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment varies with the context and the difficulty of separating protected and unprotected speech.

      And you've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment doesn't vary solely with the difficulty of separating protected and unprotected speech. Which is what you claimed.

      Yet, you never admit that you were wrong, and you never stop pretending like you're an expert on the very topics that you've demonstrated you have little grasp over.

      That's weird, because my track record on the law is much better than yours. Whenever we've had these stupid debates, and a court has later ruled on the issue, you've been wrong and I've been right.

      Yet you have never, once, admitted it. Ever.

      Oh, by the way, I did admit I was wrong and you were right once. When we were first having a debate about the ICE seizures, way back in the day, I thought that ICE was required to follow 18 USC 983, "General rules for civil forfeiture proceedings." You said I was wrong, because that didn't cover judicial forfeiture, and you called me an idiot for it. And you led me, instead, to 18 USC 985, since it was the only section of 46 that dealt with judicial forfeitures, despite the fact that it dealt with real property.

      So, I assumed I was wrong. I put 18 USC 985 as the seizure law in the first article I wrote for Techdirt. And you insulted me for it. As it turns out, what statute was ICE using? 985.

      Shows what I get for listening to you. The only thing you've proven here is that you don't know what you're talking about. Either that, or - and I find this more likely - you're knowingly misinterpreting the law in order to attack any position that Techdirt takes.

      Oh, in case you forgot, now's usually the point when you start polluting every single story on this site with nothing but barnyard noises. You've proven you can be a Speak-n-Spell too, I guess.

       

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        Karl (profile), Sep 15th, 2013 @ 10:12pm

        Re: Re:

        As it turns out, what statute was ICE using? 985.

        Ha! Sorry, it was 983 - the one I had originally thought they should be using (that you thought was wrong). I mixed up my numbers there. Oops.

         

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    Anonymous Coward, Sep 16th, 2013 @ 5:41am

    Yes, in all of those situations there is a state actor. It is called the state.

    When private parties obey the law, and the "operation and effect" of that obedience is the loss of Constitutional rights, it's not necessary that the private parties be "state actors." There is already a state actor: the state that enacted the law.

    So if, by some wild stretch of the imagination, driving at the speed limit somehow violated First Amendment rights, then speed limit laws would be unconstitutional.

    On the other hand, if there were no speed limit laws whatsoever, and people (somehow) lost their First Amendment rights when others drive at that particular speed, then driving at that speed wouldn't be unconstitutional.

    The test is whether a private actor's actions can be attributed to the state. When that actor is following laws enacted by the state, that's true by definition.


    Huh? So anyone who follows a law enacted by the state is a state actor? So if the law says I have to mow my lawn, and I mow my lawn, Iím a state actor? Is that really your point? I hope it is, because it's so easily disproved and so dumb.

    I never said they weren't arguing prior restraint. I said they weren't arguing prior restraint by the ISPs. And they weren't. You are wrong.

    You are contradicting yourself. Just above you said that ďby definitionĒ anyone ďfollowing laws enacted by the stateĒ is a state actor. You also claim that ISPs are following the DMCA law, involuntarily no less, such that they are state actors. And now youíre claiming that even though those ISPs are state actors, theyíre not state actors imposing a prior restraint? Itís hard to follow you since it makes so little sense. Can you clarify?

    No, I've shown that "prior restraint" has also been used to describe a substantive analysis by the courts. And I was right.

    No, you said ďsubstantive challenges to statutes are also prior restraint,Ē which shows youíre confused about the difference between substance and process.

    I understand it OK, at least for a non-lawyer. It's just that in this context (the context of private actors and contract law), it's not usually used the way you're using it. "State action" is certainly not a synonym for "judicial action," which is (if I understand you correctly) what you're claiming.

    No, you donít understand it at all. You said, ďSending a DMCA notice is not an extra-judicial action.Ē Of course it is. There is no motion, petition, case, complaint, etc. before the court. Itís not in any way judicial unless a court is actually involved. And, no, Iím not saying that state action is a synonym for judicial action. In fact, I said, ďAnd even if that were true that it was state action, which it is not, that wouldn't change the fact that it's extra-judicial.Ē You are truly confused. About all of this.

    And you've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment doesn't vary solely with the difficulty of separating protected and unprotected speech. Which is what you claimed.

    So are you now admitting that it does vary with the difficulty? Above you claimed that ďthe line is always dim and uncertain.Ē Now youíre saying it changes? Wow. Youíre just all over the place. Please explain too what else it turns on other than the difficulty. Since you didnít even understand above that the difficulty can change, I suspect you canít identify anything else that goes into the analysis.

    That's weird, because my track record on the law is much better than yours. Whenever we've had these stupid debates, and a court has later ruled on the issue, you've been wrong and I've been right.

    Yet you have never, once, admitted it. Ever.


    I love admitting Iím wrong. Pull up the posts you have in mind where Iím wrong, and if I agree, Iíll admit it here and now. I love being wrong because it means I learned something new.

    Oh, by the way, I did admit I was wrong and you were right once. When we were first having a debate about the ICE seizures, way back in the day, I thought that ICE was required to follow 18 USC 983, "General rules for civil forfeiture proceedings." You said I was wrong, because that didn't cover judicial forfeiture, and you called me an idiot for it. And you led me, instead, to 18 USC 985, since it was the only section of 46 that dealt with judicial forfeitures, despite the fact that it dealt with real property.

    So, I assumed I was wrong. I put 18 USC 985 as the seizure law in the first article I wrote for Techdirt. And you insulted me for it. As it turns out, what statute was ICE using? 985.


    I honestly donít remember that. Must have been a couple of years ago. If I said you were wrong and you werenít, I apologize. I get stuff wrong. I have no problem admitting it. Here, though, Iíve pointed out several fundamental mistakes of yours, and you havenít admitted even one. Thatís what I was referring to.

    Shows what I get for listening to you. The only thing you've proven here is that you don't know what you're talking about. Either that, or - and I find this more likely - you're knowingly misinterpreting the law in order to attack any position that Techdirt takes.

    Considering that youíve been show above to be clueless about even basic things, such as that a First Amendment violation requires state action, itís hilarious that youíre declaring yourself the winner. You donít have the tools to even understand half of this.

    Oh, in case you forgot, now's usually the point when you start polluting every single story on this site with nothing but barnyard noises. You've proven you can be a Speak-n-Spell too, I guess.

    No, Iím here having a debate. I really hope that ďprofessorĒ pans out (though I'm 80% sure it's just Mike) because I have hope that he or she will say more intelligent things that you.

     

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      Karl (profile), Sep 16th, 2013 @ 6:14pm

      Re:

      Huh? So anyone who follows a law enacted by the state is a state actor?

      That is quite clearly not what I said. Since you seem to have a reading problem, I'll repeat it, in bold:

      In all of those situations there is a state actor. It is called the state.

      In your examples, the state actor is the legislative branch of the state. They are the ones who passed the laws, and passing a law is a state action. For the purposes of Constitutional analysis, it is completely immaterial whether the people who obey those laws are state actors or not.

      Say, for example, that a state government passed a law that said white people are immune from lawsuits by black people. Are the white people "state actors" under that doctrine? No, they're not. Does that mean that the law is immune from Constitutional analysis or the Fourteenth Amendment? No, of course not.

      That specific argument was shot down in CDT v. Pappert. Were the ISPs considered "state actors?" No, they were not - but it didn't matter, because the operation and effect of the law was that speech was blocked. Neither were the booksellers in the Bantam case, or the cable operators in Playboy v. U.S. It made no difference at all, because they were obeying the law, and the state is responsible for the consequences of that obedience.

      It is similar with the DMCA. That is law passed by Congress. Enacting it is a state action for the purposes of Constitutional analysis. If following the law means that someone's First Amendment rights are abridged, then it makes no difference whatsoever if either the sender or the recipient is a "state actor." It makes no difference if following the law happens extrajudicially, because the judiciary is not the only kind of state actor. The state actor is Congress, and the state act is enacting the DMCA statutes. Congress is responsible for any free speech that is blocked due to the DMCA statutes, because enacting those statutes is itself a state action.

      You seem to be confusing the "state actor" doctrine, developed through case law, with the notion of a "state action." The "state actor" doctrine arose to address whether a private action, done due to no overt legal obligation, is nonetheless attributable to the state. A "state action" has a much lower bar. It covers any act performed by any branch of the government, and any act performed under the color of law. It does not require that any private party be considered a state actor. For the purposes of Constitutional analysis, any action, even actions between private parties, become "state actions" the moment they are able to be enforced by law.

      No, you said ďsubstantive challenges to statutes are also prior restraint,Ē which shows youíre confused about the difference between substance and process.

      There is substantive First Amendment analysis, and procedural First Amendment analysis. The courts have referred to both as "prior restraint" at different points. You are focused, exclusively, on procedural prior restraint. That's not the only kind of procedural analysis, and it's not the only kind of prior restraint.

      But that's really a tangent, so I'm going to drop it.

      You said, "Sending a DMCA notice is not an extra-judicial action."

      I said, "sending a DMCA notice is not an extra-judicial action, as that term is normally applied." The phrase is usually used in tort law, where it is (for all intents and purposes) a synonym for "outside the legal system." DMCA notices are not done outside the legal system. They may be done outside a court of law, but they are not private acts between private parties.

      So are you now admitting that it does vary with the difficulty?

      I never maintained that it didn't. I've maintained that it does not vary solely with the difficulty, which is what you have been arguing. The "dim and uncertain line" is not the origin of procedural safeguards. The origin is the general principal that protected speech should not be blocked with unprotected speech. The difficulty of that determination certainly contributes, but it's not the sole yardstick, and additional procedural safeguards are always necessary. For example, even if it was trivially easy to tell child pornography from protected speech (the Camfield standard), the "informal notices" in CDT v. Pappert would still be unconstitutional, according to the Court, because "the ex parte, probable cause determination provided for in the Act is insufficient."

      Pull up the posts you have in mind where Iím wrong, and if I agree, Iíll admit it here and now.

      Do you admit that you were wrong about the copyright transfers in Righthaven? Do you admit that you were wrong when you claimed that ICE sent direct notices to the websites that they took down, that the site owners would get their day in court, and that the court would find in ICE's favor? Do you admit you were wrong when you said the Arcara standard applies to copyright infringement in general, and the ICE seizures in particular? Do you admit you were wrong when you said that linking to streaming content constitutes copyright infringement?

      I'm sure I could dig up more, but those are the ones I remember. I don't have time to actually hunt down the comments.

      No, Iím here having a debate.

      For now...

       

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      Anonymous Coward, Sep 16th, 2013 @ 8:15pm

      Re:

      For months you considered "Moo! Bawk! Cluck!" and a useless little Pastebin hyperlink "debate". Sorry; you abuse your privileges, you get your binky taken away. Sucks, doesn't it?

       

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    Anonymous Coward, Sep 17th, 2013 @ 7:24am

    I apologize for starting a new thread with each post. The proxy I'm using somehow prevents me from replying properly.

    That is quite clearly not what I said. Since you seem to have a reading problem, I'll repeat it, in bold:

    In all of those situations there is a state actor. It is called the state.


    The point, which you are so clearly missing, is that for there to be a prior restraint, the party imposing the restraint has to be the state actor. So with the Commission in Bantam, the Commission could not be imposing a prior restraint unless the Commission was a state actor. With the DMCA, a rightholder or service provider cannot be imposing a prior restraint unless the rightholder or the service provider is a state actor. It doesnít matter that Congress was a state actor when enacting the DMCA.

    In your examples, the state actor is the legislative branch of the state. They are the ones who passed the laws, and passing a law is a state action. For the purposes of Constitutional analysis, it is completely immaterial whether the people who obey those laws are state actors or not.

    Yes, if some lawmaking body enacts a law, then that body is a state actor. But for purposes of the prior restraint analysis, it is imperative that the party imposing the restraint be themselves a state actor. Youíre truly showing your ignorance here. Can you find one single prior restraint case where the party imposing the restraint wasnít a state actor? No. You really should research this stuff before pretending to be an expert. You appear to start with your conclusion and then go cherry picking through the case law for anything that can be misread to support your foregone conclusion. Find me one single case where the party imposing the restraint wasnít a state actor.

    Say, for example, that a state government passed a law that said white people are immune from lawsuits by black people. Are the white people "state actors" under that doctrine? No, they're not. Does that mean that the law is immune from Constitutional analysis or the Fourteenth Amendment? No, of course not.

    Of course that law is open to constitutional challenge, just like I have repeatedly said above the DMCA is. But itís not a procedural challenge. Itís not a prior restraint challenge. Your problem is that you donít seem to understand that there are distinct First Amendment doctrines. You jumble them all together. You always have.

    That specific argument was shot down in CDT v. Pappert. Were the ISPs considered "state actors?" No, they were not - but it didn't matter, because the operation and effect of the law was that speech was blocked. Neither were the booksellers in the Bantam case, or the cable operators in Playboy v. U.S. It made no difference at all, because they were obeying the law, and the state is responsible for the consequences of that obedience.

    The state actors were the administrative agents, i.e., members of the executive branch, that imposed the restraint. They were the censors, i.e., the ones imposing the restraint. The censors in Bantam were the Commission since they were the ones imposing the restraint. Again, the point you donít understand because you have no idea what youíre talking about is that the censor, i.e., the party that actually imposes the restraint, has to be a state actor. Itís really simple. Try reading up on it with an open mind. Itís all right there in the case law.

    It is similar with the DMCA. That is law passed by Congress. Enacting it is a state action for the purposes of Constitutional analysis. If following the law means that someone's First Amendment rights are abridged, then it makes no difference whatsoever if either the sender or the recipient is a "state actor." It makes no difference if following the law happens extrajudicially, because the judiciary is not the only kind of state actor. The state actor is Congress, and the state act is enacting the DMCA statutes. Congress is responsible for any free speech that is blocked due to the DMCA statutes, because enacting those statutes is itself a state action.

    Yes, enacting the DMCA is state action. But following the DMCA doesnít turn a private actor into a state actor. Just as the law that says I have to mow my grass (and there really such a law where I live), Iím not a state actor just because I follow the law and mow my grass. It makes every difference for the prior restraint analysis if the sender or recipient isnít a state actor. If the party that actually imposes the restraint is not themselves a state actor, then it canít be a prior restraint. As Iíve said repeatedly, the DMCA can be challenged directly on a First Amendment challenge, but it wouldnít be a prior restraint challenge. It would be a substantive challenge, such as arguing that intermediate scrutiny applies or invoking the overbreadth doctrine.

    You seem to be confusing the "state actor" doctrine, developed through case law, with the notion of a "state action." The "state actor" doctrine arose to address whether a private action, done due to no overt legal obligation, is nonetheless attributable to the state. A "state action" has a much lower bar. It covers any act performed by any branch of the government, and any act performed under the color of law. It does not require that any private party be considered a state actor. For the purposes of Constitutional analysis, any action, even actions between private parties, become "state actions" the moment they are able to be enforced by law.

    Youíre again missing the point. Without the censor being a state actor, there can be no prior restraint. The state action doctrine looks at whether a given party is a state actor. Just simply following the law doesnít make one a state actor. Once something is enforced by law, there is state action. But just being able to have something enforced by law doesnít constitute state action. For example, if I hire you to mow my lawn and you agree, we have a contract. Thatís private action, even though I could take you to court should you breach. Letís say you do breach, and I sue you. Only then is there state action, since the court is a state actor But just because I can potentially invoke the power of the state, there is no state action until that power is actually invoked.

    There is substantive First Amendment analysis, and procedural First Amendment analysis. The courts have referred to both as "prior restraint" at different points. You are focused, exclusively, on procedural prior restraint. That's not the only kind of procedural analysis, and it's not the only kind of prior restraint.

    But that's really a tangent, so I'm going to drop it.


    Itís relevant. If itís prior restraint, then the issue is procedural. Look at the classic prior restraints. A court or administrative body cannot prohibit the exhibition of an allegedly obscene film until the procedural safeguards from Freedman are followed. Such films can be restrained prior to exhibition, i.e., there can be a prior restraint that isnít unconstitutional, so long as the procedures invoked are constitutionally sound. The issue isnít substantive, i.e., whether obscene films are protected by the First Amendment or not. The issue is the procedures invoked.

    I said, "sending a DMCA notice is not an extra-judicial action, as that term is normally applied." The phrase is usually used in tort law, where it is (for all intents and purposes) a synonym for "outside the legal system." DMCA notices are not done outside the legal system. They may be done outside a court of law, but they are not private acts between private parties.

    The term is normally applied to mean outside of a court of law. extra = outside and judicial = court of law. This is basic stuff. So youíre silly reading of the word would make my grass mowing judicial action since Iím following the law by mowing my grass. Again, youíre really showing your ignorance here.

    Do you admit that you were wrong about the copyright transfers in Righthaven?

    No, I think the Ninth Circuit is clearly wrong. Iím happy to back up my position.

    Do you admit that you were wrong when you claimed that ICE sent direct notices to the websites that they took down, that the site owners would get their day in court, and that the court would find in ICE's favor?

    I donít recall that one. ICE published notice of the seizures in accordance with the law, which can be done by posting them on that forfeiture.gov websiteówhich is what they did. I recall that the court did find in the governmentís favor, citing Arcara no less.

    Do you admit you were wrong when you said the Arcara standard applies to copyright infringement in general, and the ICE seizures in particular?

    Arcara stands for many things. It nicely summarizes the two lines of cases where intermediate scrutiny is applied, OíBrien and Minneapolis Star. It also nicely summarizes why things like the closure order of the bookstore arenít necessarily prior restraints. The court applied Arcara to Puerto 80. Seems to me that you were wrong.

    Do you admit you were wrong when you said that linking to streaming content constitutes copyright infringement?

    Of course linking can lead to liability for infringement. Iím not sure I get your point. I remember walking you through that Perfect 10 v. Amazon/Google case step by case because you didnít even begin to understand that the Ninth Circuit was saying that Google could be contributorily liable for inline linking. You did there what youíre doing here, doubting everything I said even though the answer was right in front of you and pretending like you have a clue when you donít.

     

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      Gwiz (profile), Sep 17th, 2013 @ 8:41am

      Re:

      But following the DMCA doesnít turn a private actor into a state actor. Just as the law that says I have to mow my grass (and there really such a law where I live), Iím not a state actor just because I follow the law and mow my grass.


      That analogy isn't comparable to the DMCA.

      If the law granted me (as a private party) the power to fine you because you didn't mow your grass, I would most certainly be considered a state actor who is acting under the color of the law.

       

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        Anonymous Coward, Sep 17th, 2013 @ 9:31am

        Re: Re:

        That analogy isn't comparable to the DMCA.

        If the law granted me (as a private party) the power to fine you because you didn't mow your grass, I would most certainly be considered a state actor who is acting under the color of the law.


        Yes, if you were given the authority to fine people on behalf of the state, you'd be a state actor. But the DMCA doesn't allow private parties to fine people. It doesn't give rightholders any powers to enforce their own property rights that they don't already have. The only cause of action I can think of created by the DMCA is the one under 512(f) for misrepresentation--the one that Lessig is suing under for the takedown of his video from YouTube. But even that doesn't make Lessig a state actor. The court is a state actor in his case, but YouTube, Lessig, and the company he sued are not.

         

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          Anonymous Coward, Sep 17th, 2013 @ 9:48am

          Re: Re: Re:

          Yes, if you were given the authority to fine people on behalf of the state, you'd be a state actor. But the DMCA doesn't allow private parties to fine people. It doesn't give rightholders any powers to enforce their own property rights that they don't already have.

          Other than the power to coerce a third party service provider to take down content?

          That's what everyone else in this thread is referring to and you seem to have a near total blindness to it.

           

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            Anonymous Coward, Sep 17th, 2013 @ 10:01am

            Re: Re: Re: Re:

            Other than the power to coerce a third party service provider to take down content?

            That's what everyone else in this thread is referring to and you seem to have a near total blindness to it.


            Even without the DMCA, a rightholder can send a takedown notice to a service provider, stating all of the same exact things that are stated in a DMCA takedown notice. Even without the DMCA, the service provider has to make a decision whether to remove the content. Even without the DMCA, the service provider can be secondarily liable for the infringement if they refuse to take it down. A rightholder can coerce a service provider just the same with or without the DMCA.

             

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          Gwiz (profile), Sep 17th, 2013 @ 9:50am

          Re: Re: Re:

          It doesn't give rightholders any powers to enforce their own property rights that they don't already have.

          The DMCA gave the rightsholders the power to abridge possibly protected speech prior to a judicial review. It most decidedly did give the rightsholders additional power to enforce their property rights. It also added the element of government coercion by holding the safe harbors over the ISP's heads. It was also done for the financial gain of the government - to reduce the amount of copyright cases on the already over-burdened courts.

           

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            Anonymous Coward, Sep 17th, 2013 @ 10:09am

            Re: Re: Re: Re:

            The DMCA gave the rightsholders the power to abridge possibly protected speech prior to a judicial review. It most decidedly did give the rightsholders additional power to enforce their property rights. It also added the element of government coercion by holding the safe harbors over the ISP's heads. It was also done for the financial gain of the government - to reduce the amount of copyright cases on the already over-burdened courts.

            Even without the DMCA, a rightholder can coerce a service provider to take down speech that might in fact be protected by the First Amendment. There is no power to send a takedown notice granted by the DMCA. That power exists without the DMCA. The safe harbors just codified the case law, and it clarified what would, as a matter of law, be considered a notice sufficient to put the service provider on notice. A service provider that has knowledge of infringing content on its service can be held liable even without the DMCA. You're acting like the DMCA changed the whole playing field. It didn't.

             

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            Anonymous Coward, Sep 17th, 2013 @ 10:19am

            Re: Re: Re: Re:

            One thing you should keep in mind too is that not even Lessig in his new case where he's the plaintiff challenging the takedown of his video is arguing prior restraint. And Lessig loves arguing the First Amendment in a copyright case. That's his thing. That should tell you how silly the argument is. Fifteen years of the DMCA and not one case where a court even entertained the argument. That should tell you something.

             

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      Karl (profile), Sep 17th, 2013 @ 2:37pm

      Re:

      The point, which you are so clearly missing, is that for there to be a prior restraint, the party imposing the restraint has to be the state actor.

      No. For there to be a prior restraint, there needs only to be a state action. Whether that state action is actually carried out by private parties or not makes no difference.

      So with the Commission in Bantam, the Commission could not be imposing a prior restraint unless the Commission was a state actor.

      In Bantam, the parties who actually carried out the prior restraint were the booksellers. In Playboy, they were cable companies. In CDT, like the DMCA, they were ISPs.

      In both the Playboy and CDT cases, the private actors had a choice in how to implement the censorship. The state made exactly the same argument you are making: that because the prior restraint was actually carried out by private parties, who chose the method of censorship, it was beyond the reach of First Amendment analysis. They were completely shot down.

      Both parties, though not state actors, were acting under the influence of the law. The moment the law exerts an influence a party's actions, the state is implicated. That is all that is required for Constitutional analysis.

      Of course that law is open to constitutional challenge, just like I have repeatedly said above the DMCA is. But itís not a procedural challenge.

      It wouldn't be immune from a procedural challenge. (Of course, in my scenario, it wouldn't be necessary to make one.)

      Yes, enacting the DMCA is state action. But following the DMCA doesnít turn a private actor into a state actor.

      Because the DMCA is a "state" statute, following the DMCA is a state action, at least for the purposes of Constitutional analysis.

      Just as the law that says I have to mow my grass (and there really such a law where I live), Iím not a state actor just because I follow the law and mow my grass.

      It means that mowing your grass is a "state action." If mowing your grass somehow deprived people of Constitutional rights, the state would be implicated.

      If the party that actually imposes the restraint is not themselves a state actor, then it canít be a prior restraint.

      Again, both Playboy and CDT show you're wrong. It is only necessary that the party imposing the restraint be endorsed, coerced, or influenced by the state. There is no question that this is true of both the sender and the recipient of a DMCA notice, private actors though they be.

      The only acts that escapes Constitutional examination are extra-legal acts between private parties. The moment the state gets involved at any level, it comes under the purview of Constitutional analysis.

      For example, if I hire you to mow my lawn and you agree, we have a contract. Thatís private action, even though I could take you to court should you breach.

      If there is a statute that specifies the form and substance of that hiring agreement, then it is not a private action. The statute falls under the purview of Constitutional analysis, even if you never take me to court.

       

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    Anonymous Coward, Sep 17th, 2013 @ 7:25am

    Can't even reply to the right response, can you average_jackass? Not a surprise from someone with half the brain of a cow and chicken.

    You're really showing us how smart you are, that's for sure.

     

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      Anonymous Coward, Sep 17th, 2013 @ 9:11pm

      Re:

      To tell that you spending months mimicking a cow and chicken were a waste of time? Sure, granted, it doesn't take a three-year-old to tell that it's a thoroughly stupid thing to do. What a tard you are.

       

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      Anonymous Coward, Sep 18th, 2013 @ 8:52am

      Re:

      How insightful you are. Have a DMCA report vote.

       

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    Anonymous Coward, Sep 17th, 2013 @ 7:29am

    For months you considered "Moo! Bawk! Cluck!" and a useless little Pastebin hyperlink "debate". Sorry; you abuse your privileges, you get your binky taken away. Sucks, doesn't it?

    I think it's hilarious that Mike is so scared of me criticizing him that he went absolutely batshit trying to censor me. And it's incredibly hilarious that he's so dishonest and so ashamed of himself that he can't even admit what he did or talk about it honestly. It's not hard to sum up what caliber of a man Mike Masnick is. It ain't pretty. He's an angry little man who can't stand criticism. I don't think there's an honest cell in his body. He cares nothing about truth. He worships form over substance.

     

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    Anonymous Coward, Sep 17th, 2013 @ 1:20pm

    I have to admit, it IS hilarious that Mike is scared of a 3-year-old throwing tantrums.

    The thing about me that scares Mike is how easy it is for me to call him out on stuff like this where he claims something violates the First Amendment. Mike has no idea what he's talking about. He can't do the analysis. He doesn't understand the doctrines. He's just pumping out faith-based FUD. He knows it too, and he's so ashamed of himself that he has to stifle anyone criticizing him and pointing out that he's a clueless schmuck. Mike doesn't stand behind his claims because he can't. He's just an angry little mouthpiece yelling at the world, and he can't stand anyone pointing that out. Mike is petrified of me since I see right through him. He runs from me every time because he's a total fake and total coward. Nobody hates criticism more than Mike. The fact is, he does all the stupid things that he ridicules others for doing.

     

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      Anonymous Coward, Sep 17th, 2013 @ 9:10pm

      Re:

      Wife not putting out so you have to post naughty things on her laptop again? While you're at it, tell your fuckbuddy out_of_the_blue I said hi, and that the both of you hate due process.

       

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    Anonymous Coward, Sep 17th, 2013 @ 4:45pm

    No. For there to be a prior restraint, there needs only to be a state action. Whether that state action is actually carried out by private parties or not makes no difference.

    Let's just focus on this one point, if you will, since it's the biggie that you're misunderstanding. I'm happy to discuss all of your other points later. Can you find a single case where the restraint was imposed by private actors who weren't considered to be state actors? You can't. The whole point of the state action doctrine in the prior restraint context is to figure out whether the party imposing the restraint is a state actor. If they're not, then it can't be prior restraint. Whether the restraint is actually carried out by private actors makes all the difference.

    Again, both Playboy and CDT show you're wrong. It is only necessary that the party imposing the restraint be endorsed, coerced, or influenced by the state. There is no question that this is true of both the sender and the recipient of a DMCA notice, private actors though they be.

    I'm not familiar with the Playboy case, but I'll look it up. But in Pappert, the restraint was carried out by the government. There were no private actors imposing the restraint. Again, you don't understand that the restraint needs to be carried out by a government actor. That was the case in Pappert. See if you can find even one single case where the restraint was carried out by private actors. You can't. The reason is because the restraint must be carried out by government actors or else it can't be a prior restraint. I'll see if I can find some case law for you saying just this, but I suggest you research it yourself. This is First Amendment 101 stuff.

     

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      Karl (profile), Sep 18th, 2013 @ 12:09am

      Re:

      Can you find a single case where the restraint was imposed by private actors who weren't considered to be state actors?

      No, but I can't find that in this case, either.

      There are, of course, many prior restraint cases - perhaps even the majority - where the restraint was carried out by private actors who weren't considered to be state actors. Just like taking down content due to a DMCA notice is carried out by ISPs.

      But in all those cases, like ISPs responding to takedown notices, they did so because it was specified by law. Thus, their actions were attributable to the state; it was the state who imposed the restraint.

      This is the general rule when private actors are following state statutes:
      A private entity's actions may be attributable to the State if [...] the State exercised such coercive power that the private actor was compelled to act as it did[.] [...]

      This test requires that the act be the product either of State coercion or significant encouragement. This is generally the case where a State enacts regulatory requirements with which private entities must comply.
      - Carson v. Springfield College

      [I]n Pappert, the restraint was carried out by the government.

      That's not what the government argued:
      The Act in this case has resulted in the blocking of in excess of 1,190,000 web sites that were not targeted by the Informal Notices. Defendant argues that this overblocking does not violate the First Amendment because it resulted from decisions made by ISPs, not state actors. [...]

      The Court rejects this argument.

      On a separate note, I'd like to reply to this:

      I recall that the court did find in the governmentís favor, citing Arcara no less.

      You recall absolutely, 100% wrong. Not one of the copyright seizures resulted in a ruling for the government.

      The closest there was to a judicial ruling in the government's favor was the denial of Puerto 80's 983(f) motion. But when the case moved forward, the judge dismissed ICE's original complaint. (He gave them a deadline to re-file - which the government missed by months, eventually dropping all charges after the MyVidster ruling.) And the judge certainly did not cite Arcara.

      Significantly, however, the Government's memorandum did. That you would remember the prosecution's justification as a ruling in their favor says a lot about you.

       

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    Anonymous Coward, Sep 17th, 2013 @ 7:37pm

    OK, letís start with your claim that ď[w]hether that state action is actually carried out by private parties or not makes no difference.Ē This is patently untrue. Itís basic constitutional law that the party who deprives someone of a constitutional right has to be a state actor or else there can be no constitutional violation.

    A person who is deprived of a civil right has an action under 42 U.S.C. 1983, which provides:
    Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
    Note that the person who causes the deprivation has to be acting under color of law. This color of law requirement for Section 1983 is the same as the requirement of state action for a direct constitutional challenge:
    If the challenged conduct of respondents constitutes state action as delimited by our prior decisions, then that conduct was also action under color of state law and will support a suit under ß 1983.
    Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 (1982).
    ĎUnder colorí of law means the same thing in s 242 that it does in the civil counterpart of s 242, 42 U.S.C. s 1983. . . . In cases under s 1983, Ďunder colorí of law has consistently been treated as the same thing as the Ďstate actioní required under the Fourteenth Amendment.
    U. S. v. Price, 383 U.S. 787, 794 n.7 (1966).

    The thing youíre missing is that the constitutional violation must have committed by someone acting under color of law, i.e., a state actor:
    To state a claim under 42 U.S.C. ß 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.
    Schorr v. Borough of Lemoyne, 265 F. Supp. 2d 488, 491 (M.D. Pa. 2003).
    To make out a claim under Section 1983, a plaintiff must demonstrate that the conduct of which he is complaining has been committed under color of state or territorial law and that it operated to deny him a right or rights secured by the Constitution and laws of the United States. . . . . The plaintiff must also establish that it was the acts of the defendant which caused the constitutional deprivation.
    Mosley v. Yaletsko, 275 F. Supp. 2d 608, 613 (E.D. Pa. 2003).
    To state a cause of action under 42 U.S.C. ß 1983 for an alleged violation of the Fourteenth Amendment and provisions of the Bill of Rights incorporated into the Fourteenth Amendment, ďit is beyond cavilĒ that challenged conduct must constitute state action. . . . A proper claim must incorporate at least two elements, each a distinct inquiry: 1) the plaintiff must show that he has been deprived of a right protected by the Constitution and laws of the United States; and 2) the plaintiff must show that the putative state actor deprived him of the right while acting ďunder color of any statuteĒ of the [municipality]. . . . Given that Tool Box has alleged a deprivation of its First Amendment rights, we jump directly to the second inquiry-that is, whether Tool Box has demonstrated that the Review Board acted under color of state law or, rather, engaged in state action.
    Tool Box v. Ogden City Corp., 316 F.3d 1167, 1175 (10th Cir. 2003).

    The question is whether the party that directly caused the deprivation is acting under color of law. Mere private action is not enough:
    To state a claim for relief in an action brought under ß 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of ß 1983 excludes from its reach ď Ďmerely private conduct, no matter how discriminatory or wrongful,í Ē
    Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

    If the deprivation is carried out by a private actor, there can be no constitutional violation. This is basic Con Law I stuff. The ďparty charged with the deprivation must be a person who may fairly be said to be a state actorĒ Id. at 50. The party that causes the deprivation must be a state actor. Period. The ďprinciple that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated.Ē Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974). The fact that you deny this is truly remarkable. ďOur cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.Ē Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).

    The conduct that causes the deprivation must be state action. The person causing the deprivation must be a state actor. Itís really that simple. Your claim that ď[w]hether that state action is actually carried out by private parties or not makes no differenceĒ is completely false and completely clueless.

    The requirement that the deprivation be caused by the conduct of a state actor holds true in the prior restraint context as it does in constitutional contexts generally:
    The expression ďprior restraintĒ in first amendment law is a term of art. In prior restraint cases, the government typically brings an action to enjoin speech or imposes a requirement of advance approval, censorship or licensing of speech. . . . None of this typical action is present here. Carriers are private companies, not state actors, . . . and accordingly are not obliged to continue, restrict or terminate the services of particular subscribers. Thus, a carrier is free under the Constitution to terminate service to dial-a-porn operators altogether.
    Info. Providers' Coal. for Def. of the First Amendment v. F.C.C., 928 F.2d 866, 877 (9th Cir. 1991).
    Only where the government imposes a requirement of advance approval or seeks to enjoin speech can there be prior restraint. . . . That is not the case here. The Helms Amendment requires no one except dial-a-porn providers to classify their messages, and therefore it cannot be said to operate as a prior restraint on speech. The carriers themselves are not state actors but private companies.
    Dial Info. Servs. Corp. of New York v. Thornburgh, 938 F.2d 1535, 1543 (2d Cir. 1991).

    Can you admit that your claim that ď[w]hether that state action is actually carried out by private parties or not makes no differenceĒ is wrong, or should I pull up more case law? Answer me that, and then we can talk about whether the DMCA transforms private actors into state actors. But first I want to be clear that you're wrong about it not mattering whether the party causing the restraint is a private actor or not.

     

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      Anonymous Coward, Sep 18th, 2013 @ 12:20am

      Re:

      The thing youíre missing is that the constitutional violation must have committed by someone acting under color of law, i.e., a state actor:

      You keep repeating that, but refuse to respond to Karl's point that a private actor acting in a manner compelled by the state is doing a state action -- and many courts have agreed with this.

      You just keep ignoring it and saying "but it must be a state actor" even though Karl's already explained to you how there is.

      The actions taken by service providers is compelled by the DMCA, thus the takedowns are compelled by state action, making them a Constitutional issue.

       

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      Anonymous Coward, Sep 18th, 2013 @ 4:42am

      Re:

      average_joe just hates it when due process is enforced.

       

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    Anonymous Coward, Sep 18th, 2013 @ 11:10am

    You keep repeating that, but refuse to respond to Karl's point that a private actor acting in a manner compelled by the state is doing a state action -- and many courts have agreed with this.

    You just keep ignoring it and saying "but it must be a state actor" even though Karl's already explained to you how there is.

    The actions taken by service providers is compelled by the DMCA, thus the takedowns are compelled by state action, making them a Constitutional issue.


    I don't follow you. What language in the DMCA says that a service provider must act? Many service providers choose not to take down content when they receive a DMCA notice. If Google is compelled to obey the takedown notices it receives, then why would it publicly admit that it doesn't always take down content? That'd be like admitting to a crime.

     

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    Anonymous Coward, Sep 18th, 2013 @ 11:13am

    You keep repeating that, but refuse to respond to Karl's point that a private actor acting in a manner compelled by the state is doing a state action -- and many courts have agreed with this.

    You just keep ignoring it and saying "but it must be a state actor" even though Karl's already explained to you how there is.

    The actions taken by service providers is compelled by the DMCA, thus the takedowns are compelled by state action, making them a Constitutional issue.


    I don't follow you. What language in the DMCA says that a service provider must act? Many service providers choose not to take down content when they receive a DMCA notice. If Google is compelled to obey the takedown notices it receives, then why would it publicly admit that it doesn't always take down content? That'd be like admitting to a crime.

     

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    Anonymous Coward, Sep 18th, 2013 @ 11:42am

    There are, of course, many prior restraint cases - perhaps even the majority - where the restraint was carried out by private actors who weren't considered to be state actors. Just like taking down content due to a DMCA notice is carried out by ISPs.

    But in all those cases, like ISPs responding to takedown notices, they did so because it was specified by law. Thus, their actions were attributable to the state; it was the state who imposed the restraint.


    But is it not true that in those cases, the private actor was actually compelled to take that action? For example, a court could issue an injunction whereby an ISP is ordered to take down some content. That injunction would compel the ISP to act, and that would be state action. But itís different with the DMCA since ISPs arenít compelled to take down content when they receive a notice. Goggle publicly admits that it doesnít take down content pursuant to every notice it receives. Its decision to take down content is voluntary, not compelled.

    This is the general rule when private actors are following state statutes:

    A private entity's actions may be attributable to the State if [...] the State exercised such coercive power that the private actor was compelled to act as it did[.] [...]

    This test requires that the act be the product either of State coercion or significant encouragement. This is generally the case where a State enacts regulatory requirements with which private entities must comply.

    - Carson v. Springfield College


    But, ď[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.Ē Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974). The fact is that even heavily regulated businesses are not necessarily state actors. Itís not as simple as regulation = state action or coercion = state action as you seem to think.

    That's not what the government argued:

    The Act in this case has resulted in the blocking of in excess of 1,190,000 web sites that were not targeted by the Informal Notices. Defendant argues that this overblocking does not violate the First Amendment because it resulted from decisions made by ISPs, not state actors. [...]

    The Court rejects this argument.


    Right, the informal notices were sufficiently coercive that it was state action. Iím not seeing your point. How does that apply here?

    You recall absolutely, 100% wrong. Not one of the copyright seizures resulted in a ruling for the government.

    The closest there was to a judicial ruling in the government's favor was the denial of Puerto 80's 983(f) motion. But when the case moved forward, the judge dismissed ICE's original complaint. (He gave them a deadline to re-file - which the government missed by months, eventually dropping all charges after the MyVidster ruling.) And the judge certainly did not cite Arcara.

    Significantly, however, the Government's memorandum did. That you would remember the prosecution's justification as a ruling in their favor says a lot about you.


    I was indeed thinking about Puerto 80 arguing that the alleged First Amendment violations caused a substantial hardship. I know Judge Crotty shot that argument down. I think he mentioned Arcara in a footnote, but I might be confusing that with something else. Not sure. You might be right.

     

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      Karl (profile), Sep 19th, 2013 @ 6:10am

      Re:

      This is probably going to be my last post on this thread. I have no more time for this nonsense.

      Goggle publicly admits that it doesnít take down content pursuant to every notice it receives.

      So far as I know, Google - like all ISPs that I'm aware of - only ignore invalid DMCA notices. As they are told to do by the DMCA statutes.

      Its decision to take down content is voluntary, not compelled.

      Once again, that argument was shot down in Bantam. Also, you're ignoring that bit in Carson where they mentioned "significant encouragement." By granting immunity from legal liability (a state action), it does in fact provide "significant encouragement."

      Your argument could only hold water if the DMCA had no legal force whatsoever. It must be, like a standard of weights and measures, "educational and advisory merely [...] and not a rule or regulation of a legislative character" (Standard Computing Scale Co., Ltd. v. Farrell).

      Honestly, the idea that ISPs follow the DMCA for purely voluntary reasons is so completely loony, I have no idea how you can make it with a straight face.

      Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974). The fact is that even heavily regulated businesses are not necessarily state actors.

      The Jackson action (ha!) was not in any way regulated by the state, so it was not a state action. That was never in dispute. The test was whether the power company was nonetheless a state actor, solely due to the fact that it was state-regulated in unrelated ways.

      In other words, the test was whether the power company was so involved with a state to be in a joint venture with the state (as in Burton v. Wilmington Parking Authority); or whether it was performing a function traditionally and exclusively performed by the state (as in Marsh v. Alabama).

      None of that applies if the actions themselves are specified by statute. If that's the case, the actor does not need to be in a joint venture with the state, and does not need to be performing a state function.

      On a separate note - it could be argued that the sender of a takedown notice be a "state actor" in the fullest sense of the word, through the Marsh test. They are allowed to demand, with the power of the state at their disposal, that ISPs remove speech from circulation, because it "is not authorized by ... the law." That is a function traditionally and exclusively performed by the judiciary.

      Of course, that argument is unnecessary. Their actions are specified by statute, so they act "under color of any statute" (duh). That test applies to "every person," not just to people acting on behalf of the state.

      I think he mentioned Arcara in a footnote, but I might be confusing that with something else.

      It was mentioned in a footnote in one of the file-sharing cases - Grokster, Napster, I don't remember - because it was brought up by one of the litigants. The Supreme Court called it an "interesting question" - and instead used the O'Brien standard.

      To date, Arcara has been determinitive in absolutely no copyright case whatsoever. Because it can't be - it only applies if the regulated activities "manifest absolutely no element of protected expression." As both London-Sire v. Does and Sony v. Does make absolutely clear, even simple piracy "has some First Amendment value" and "qualifies as speech entitled to First Amendment protection."

      It certainly does not apply to the ICE seizures, which were "imposed on the basis of an advance determination that the distribution of particular materials is prohibited" - putting it explicitly out of the reach of Arcara.

      You were wrong; you were clearly wrong; and you have not once admitted it. Not only did you not admit it, you fabricated a court ruling in your mind that said you were right.

      That really says it all.

       

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    Anonymous Coward, Sep 18th, 2013 @ 11:45am

    average_joe just hates it when due process is enforced.

    I love due process. I've spent probably 18 hours in just the past three days researching a due process issue. It's one of my favorite constitutional doctrines. I love procedural due process. I love substantive due process. I love it all. Sorry, friend, but your incessant posts to this effect don't make a lot of sense.

     

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    Anonymous Coward, Sep 18th, 2013 @ 11:47am

    Wife not putting out so you have to post naughty things on her laptop again? While you're at it, tell your fuckbuddy out_of_the_blue I said hi, and that the both of you hate due process.

    Dumb, loud, and angry. You're Mike's bread and butter. Congrats!

     

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      Anonymous Coward, Sep 19th, 2013 @ 10:17pm

      Re:

      Dumb, loud and angry were your posts consisting of nothing but barnyard noises. Congratulations, you know what a mirror is. Did you figure all that out by yourself?

       

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    Anonymous Coward, Sep 19th, 2013 @ 8:10am

    This is probably going to be my last post on this thread. I have no more time for this nonsense.

    Iím not surprised youíre running away. Youíve been shown to be completely wrong about even the most basic things, and you canít even admit a single error on your part. I donít get why you insist on talking like an expert about doctrines you know very little about. I really donít get it.

    So far as I know, Google - like all ISPs that I'm aware of - only ignore invalid DMCA notices. As they are told to do by the DMCA statutes.

    Google admits that it ignores takedown notices that meet the statutory specifications:
    Why do you remove some URLs but not others?

    It is our policy to respond to clear and specific notices of alleged copyright infringement. Upon review, we may discover that one or more URLs specified in a copyright removal request clearly did not infringe copyrights. In those cases we will decline to remove those URLs from Search. Reasons we may decline to remove URLs include not having in enough information about why the URL is allegedly infringing; not finding the allegedly infringing content referenced in the request; deducing that the copyright removal process is being used improperly (see next FAQ for examples) or fair use.
    Link: www dot google dot com /transparencyreport/removals/copyright/faq/#compliance_reasons

    Sorry, my proxy doesnít let me post regular links. Nothing in the DMCA says that service providers can evaluate for themselves whether they think itís fair use, yet Google right there admits that they do. Nothing in the DMCA says that a service provider MUST take down content. Sorry, Karl, but there is no compulsion.

    Once again, that argument was shot down in Bantam. Also, you're ignoring that bit in Carson where they mentioned "significant encouragement." By granting immunity from legal liability (a state action), it does in fact provide "significant encouragement."

    Yes, it can be so coercive that itís not voluntary. So what? Lots of statutes grant people immunity from legal liability. Look up the cases on shop keepers holding suspected shoplifters. In my state, such shopkeepers have immunity and are allowed to do things that if done by a police officer would violate the Constitution. Yet, even then the shopkeepers arenít state actors and there is no constitutional violation. You donít have a clue what youíre talking about. Youíve proved that many, many times already above. You havenít studied the state action doctrine. Why pretend to be an expert on it?

    Your argument could only hold water if the DMCA had no legal force whatsoever. It must be, like a standard of weights and measures, "educational and advisory merely [...] and not a rule or regulation of a legislative character" (Standard Computing Scale Co., Ltd. v. Farrell).

    Absolute nonsense. Even highly regulated industries are not state actors. Look at all the EPA regulations for an oil refinery. Just following those regulations doesnít make the refinery a state actor. You have no clue about the nuances of the state action doctrine. None. I haven't studied it very closely either, but I understand the basics. You don't. You've been all over the place with your arguments, contradicting yourself and looking like a fool.

    Honestly, the idea that ISPs follow the DMCA for purely voluntary reasons is so completely loony, I have no idea how you can make it with a straight face.

    Because itís true. Even Google publicly admits that they choose to ignore certain notices, even notices that otherwise meet all the specifications in the DMCA. Itís completely voluntary. If you send a takedown notice to YouTube, YouTube can throw it in the trash.

    The Jackson action (ha!) was not in any way regulated by the state, so it was not a state action. That was never in dispute. The test was whether the power company was nonetheless a state actor, solely due to the fact that it was state-regulated in unrelated ways.

    The utility held a monopoly, was extensively regulated, and terminated service in a manner that was permissible under state law.

    None of that applies if the actions themselves are specified by statute. If that's the case, the actor does not need to be in a joint venture with the state, and does not need to be performing a state function.

    The DMCA doesnít say the service provider must take down the content.

    On a separate note - it could be argued that the sender of a takedown notice be a "state actor" in the fullest sense of the word, through the Marsh test. They are allowed to demand, with the power of the state at their disposal, that ISPs remove speech from circulation, because it "is not authorized by ... the law." That is a function traditionally and exclusively performed by the judiciary.

    Of course, that argument is unnecessary. Their actions are specified by statute, so they act "under color of any statute" (duh). That test applies to "every person," not just to people acting on behalf of the state.


    No, they are private actions taken voluntary. They are actions that people were taking before the statute, and they would be taken if the statute were removed. The argument is so dumb that no party has ever brought it up in 15 years of DMCA litigation. Not even Lessig, Mr. First Amendment, is arguing it in his current case. You are completely clueless.

    To date, Arcara has been determinitive in absolutely no copyright case whatsoever. Because it can't be - it only applies if the regulated activities "manifest absolutely no element of protected expression." As both London-Sire v. Does and Sony v. Does make absolutely clear, even simple piracy "has some First Amendment value" and "qualifies as speech entitled to First Amendment protection."

    The Court even says that the prostitution in Arcara was slightly expressive. The question is whether itís expressive enough to get intermediate scrutiny. Itís not. Has any court ever said that the conduct of a copyright infringer is so expressive that he gets intermediate scrutiny? You're looking at two cases that dealt with whether it was expressive enough to quash a subpoena--and it wasn't. What's that got to do with whether it's expressive enough to get intermediate scrutiny? You're mixing doctrines and not even knowing that you're doing it.

    It certainly does not apply to the ICE seizures, which were "imposed on the basis of an advance determination that the distribution of particular materials is prohibited" - putting it explicitly out of the reach of Arcara.

    Weíve been down this tangent before. That quote from Arcara is talking about prior restraint analysis, and the part above is talking about substantive First Amendment analysis. The Court in Arcara discussed both substantive and procedural First Amendment analysis. The ďadvance determinationĒ is referring to licensing schemes, one of the quintessential prior restraints. Youíre just mixing up all the doctrines as per usual because youíre completely clueless.

    You were wrong; you were clearly wrong; and you have not once admitted it. Not only did you not admit it, you fabricated a court ruling in your mind that said you were right.

    That really says it all.


    I said I may have misremembered whether Judge Crotty cited Arcara. Iím happy to admit it. I did admit it. I may have been wrong about whether he cited Arcara. I really don't know. If I get a chance later, Iíll find the ruling to verify. What really says it all is that you canít admit a single mistake in anything you said above, even though you are so thoroughly confused about it all. You go off on all these tangents without even knowing it because you have no idea what youíre talking about. Iím glad to go through everything you got wrong, point by point, if you want. I suspect you don't.

     

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      Anonymous Coward, Sep 19th, 2013 @ 11:18am

      Re:

      OK, I found Judge Crotty's opinion, and he does not cite Arcara. I was wrong. I misremembered. The footnote came in a related document, but it wasn't from Judge Crotty. Happy to admit I made a mistake. Happy to admit that I misremembered one fact.

       

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      Karl (profile), Sep 19th, 2013 @ 8:22pm

      Re:

      I shouldn't even be here, really, but I just want to reply to this:

      Iím not surprised youíre running away.

      I'm not "running away." When I said I didn't have time for this nonsense, I was not being glib.

      I am in college full-time, taking 400-level computer science and mathematics courses. Before school, every day, I work for a startup, composing music and programming a sound engine for their Android app. I am so pressed for time, that just today I had to cancel a gig, because I don't have any time to practice. I'm not studying law, so for me to spend any more time on this would be, literally, nonsensical.

      In any case, insulting me will never convince me or anyone else that you're right. All you have to do to show I'm wrong is come up with a single court case, where:
      - an action was taken that infringed upon someone else's Constitutional rights;
      - that action was explicitly defined by a government statute;
      - following that statute had legal consequences;
      - yet that action was found to be outside the reach of Constitutional analysis, because it failed to reach the level of a "state action."

      Good luck with that.

      I still won't reply here, because I can't spare the time. But at least the two or three people who still give a shit about this thread will think you've won. And that's clearly the only thing you care about.

       

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        Karl (profile), Sep 19th, 2013 @ 8:33pm

        Re: Re:

        - following that statute had legal consequences;

        Sorry, "disobeying" that statute had legal consequences. (By "legal consequences," I just mean that the determination of whether they followed the statute or not would make any kind of difference in a court of law.)

        And now, I have to get to work.

         

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    Anonymous Coward, Sep 19th, 2013 @ 5:13pm

    You go off on all these tangents without even knowing it because you have no idea what youíre talking about. Iím glad to go through everything you got wrong, point by point, if you want.


    For those of us watching from the peanut gallery, this would actually be much appreciated. Karl's condescending and flawed legal analysis, coupled with his failure to express even a modicum of self reflection or humility, demands that such flaws be put on full display. There is nothing more frustrating than someone who is so adamantly certain and yet so absolutely wrong.

     

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      Anonymous Coward, Sep 19th, 2013 @ 5:25pm

      Re:

      For those of us watching from the peanut gallery, this would actually be much appreciated. Karl's condescending and flawed legal analysis, coupled with his failure to express even a modicum of self reflection or humility, demands that such flaws be put on full display. There is nothing more frustrating than someone who is so adamantly certain and yet so absolutely wrong.

      You mean the Anonymous Cowards condescending and flawed legal analysis, right? Watching this debate, it's quite clear that Karl knows what he's talking about. He's cited all of his arguments, showed where the AC's condescending statements involved clear misstatements of the law, and fully supported his arguments. It's the AC who you mean is adamantly certain and yet so absolutely wrong.

      Every argument that the AC has made has been clearly rebutted in detail by Karl.

       

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        Anonymous Coward, Sep 19th, 2013 @ 5:31pm

        Re: Re:

        I disagree, but all the more reason for detail on "everything [Karl] got wrong." I think we both appreciate arguments that are made with ample support and citation.

         

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          Anonymous Coward, Sep 19th, 2013 @ 10:19pm

          Re: Re: Re:

          Ah, so average_joe's friend with benefits crawls out of the woodwork. Now if hurricane head would post again we'd have a clusterfuck orgy on our hands.

           

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    Anonymous Coward, Sep 20th, 2013 @ 1:16am

    For those of us watching from the peanut gallery, this would actually be much appreciated. Karl's condescending and flawed legal analysis, coupled with his failure to express even a modicum of self reflection or humility, demands that such flaws be put on full display. There is nothing more frustrating than someone who is so adamantly certain and yet so absolutely wrong.

    Amen. Talking to Karl takes great patience. Often wrong, yet seldom in doubt.

     

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    Anonymous Coward, Sep 20th, 2013 @ 1:18am

    You mean the Anonymous Cowards condescending and flawed legal analysis, right? Watching this debate, it's quite clear that Karl knows what he's talking about. He's cited all of his arguments, showed where the AC's condescending statements involved clear misstatements of the law, and fully supported his arguments. It's the AC who you mean is adamantly certain and yet so absolutely wrong.

    Every argument that the AC has made has been clearly rebutted in detail by Karl.


    Karl has no idea what he's talking about. It's a jumbled mess. It's a doctrinal jambalaya. Can you identify even one single legal argument where Karl had it right and I had it wrong? I doubt it.

     

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    Anonymous Coward, Sep 20th, 2013 @ 1:29am

    I'm not "running away." When I said I didn't have time for this nonsense, I was not being glib.

    I am in college full-time, taking 400-level computer science and mathematics courses. Before school, every day, I work for a startup, composing music and programming a sound engine for their Android app. I am so pressed for time, that just today I had to cancel a gig, because I don't have any time to practice. I'm not studying law, so for me to spend any more time on this would be, literally, nonsensical.


    Yes, Karl, the hours of the day you don't spend studying the law is abundantly clear.

    In any case, insulting me will never convince me or anyone else that you're right. All you have to do to show I'm wrong is come up with a single court case, where:
    - an action was taken that infringed upon someone else's Constitutional rights;
    - that action was explicitly defined by a government statute;
    - following that statute had legal consequences;
    - yet that action was found to be outside the reach of Constitutional analysis, because it failed to reach the level of a "state action."

    Good luck with that.


    But it doesn't infringe upon someone's constitutional rights if it's done by a private party. That's the whole point of the state action doctrine. You need to show that the sender or recipient of a DMCA takedown notice is a state actor. As I said above, and as you vehemently denied at first while you were proving that you have no grasp of the state action doctrine or the difference between substance and procedure, that's why Seltzer and Mike were saying the DMCA compelled people to act. Without that compulsion, it's not state action. And the problem is that the DMCA doesn't compel anyone to act. That's why Google takes it upon itself to ignore takedown notices if it thinks certain uses are fair. If Google were compelled to take down content, then why would they admit that sometimes they don't? The coercion to take down content comes from the threat of infringement liability, not the DMCA. That coercion existed before the DMCA. It wasn't created by the DMCA. And the coercive power of the threat of liability doesn't change private actors into state actors. The consequences for breaking the law are meant to coerce. That's the whole point of having penalties for breaking the law. But just because there is coercion to follow the law, that doesn't make every member of the public who does so a state actor.

     

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      Anonymous Coward, Sep 20th, 2013 @ 1:38am

      Re:

      But it doesn't infringe upon someone's constitutional rights if it's done by a private party. That's the whole point of the state action doctrine.

      You keep saying that, and Karl explained to you (repeatedly, in detail, with citations) why that's wrong. You are confusing a "state action" with a "state actor." Karl pointed out that a private party can be involved in "a state *action*" if it is compelled to act by statute. And that is the case here.

      You need to show that the sender or recipient of a DMCA takedown notice is a state actor

      No, that it is a state *action*. And it is, because it is compelled by the law.

      And the problem is that the DMCA doesn't compel anyone to act.

      Tell that to the companies who receive a DMCA notice. This is entirely false. While it may not *require* action, it absolutely compels action by massively increasing liability on those who don't act. As Karl explained, such an increased liability can be seen as compulsion.

      That some companies, such as Google, in very minimal cases, choose to ignore that liability risk does not make it any less a state-compelled action. And, at the very least, it would only apply in those cases where it chooses not to act. In all those others are you honestly arguing that the DMCA is not the compelling factor in removals?

       

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    Anonymous Coward, Sep 20th, 2013 @ 2:19am

    You keep saying that, and Karl explained to you (repeatedly, in detail, with citations) why that's wrong. You are confusing a "state action" with a "state actor." Karl pointed out that a private party can be involved in "a state *action*" if it is compelled to act by statute. And that is the case here.

    The point of the state action doctrine is to determine whether a given party is a state actor such that the Constitution limits what they can do. I'm not confusing state action with state actor. Karl is confused in thinking that those terms aren't talking about the same thing.

    No, that it is a state *action*. And it is, because it is compelled by the law.

    It's state action if it's done by a state actor. Again, they look at the same thing.

    Tell that to the companies who receive a DMCA notice. This is entirely false. While it may not *require* action, it absolutely compels action by massively increasing liability on those who don't act. As Karl explained, such an increased liability can be seen as compulsion.

    The DMCA doesn't massively increase liability. What are you even talking about? The liability doesn't come from the DMCA. Even without the DMCA, there is the threat of liability for a service provider who doesn't act once it has notice of infringement on its system. The DMCA didn't change this. The threat comes from the penalties for committing the tort of infringement, not for failing to respond to a DMCA takedown notice. The threat of liability for committing a tort is not the type of compulsion that makes one a state actor. I suggest you read up on the lines of cases that look at compulsion and state action.

    That some companies, such as Google, in very minimal cases, choose to ignore that liability risk does not make it any less a state-compelled action. And, at the very least, it would only apply in those cases where it chooses not to act. In all those others are you honestly arguing that the DMCA is not the compelling factor in removals?

    Yes, because the compulsion comes more from the stick of liability for committing a tort rather than from the carrot of a safe harbor. Even without the DMCA, service providers have the incentive to take down content that is complained of. You're pretending like the DMCA drastically changed the dynamic when it didn't. Absent the DMCA, a service provider would lean towards removing complained-of content since it wouldn't want to be liable for infringement. The DMCA didn't change this.

     

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    Anonymous Coward, Sep 20th, 2013 @ 2:23am

    Hey, Mike, while I have your ear, is there any chance you're ready to talk about why you're still actively censoring me by sending my posts to the spam filter? What's the point of it when you know how easy it is to bypass?

     

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      Anonymous Coward, Sep 20th, 2013 @ 6:31am

      Re:

      Guess what? Spend months screaming "Bawk, cluck, moo", you get treated as spam. Too damn bad; you got your binky taken away.

       

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    Anonymous Coward, Sep 20th, 2013 @ 5:47am

    Just came across this. Should help you see that state action and state actor refers to the same thing:
    The main purpose of the ďConstitution is to provide a framework for national republican self-governance.Ē The Equal Protection Clause of the Fourteenth Amendment does not protect everyone equally - it only protects an individual against abridgement of his/her Constitutional rights at the hands of a state actor. This requirement of state action, in effect, guarantees that individual freedoms are protected from federal law and federal judicial power. According to the United States Supreme Court, ď[o]ne great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law.Ē By focusing the judiciary's attention on state action, this doctrine limits the courts' power to regulate private interests and ensures that states and state actors respect individual liberties. Regardless of ď[w]hether this is good or bad policy, it is a fundamental fact of our political order.Ē
    Julie K. Brown, Less Is More: Decluttering the State Action Doctrine, 73 Mo. L. Rev. 561, 562-63 (2008).

    The point of the state action doctrine is to look at the actor that is causing the deprivation to determine if they are a state actor or not. A private party is not limited by the First Amendment. That's why YouTube can remove any videos it wants to, and it's why you can censor me on Techdirt. If that private party is actually compelled to so act by the state, then they might be a state actor such that the First Amendment applies to them. But if you look at the cases where the courts have found compulsion, I think you'll see that the DMCA doesn't reach that level of compulsion--especially since the same incentives to remove content exist without the DMCA. But then again, you probably won't see it since you somehow think the DMCA drastically increased liabilities for service providers--when it in fact did no such thing.

     

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      Karl (profile), Sep 20th, 2013 @ 8:16pm

      Re:

      I don't have much time, but I still do glance at this thread, and I thought I'd briefly chime in.

      The point of the state action doctrine is to look at the actor that is causing the deprivation to determine if they are a state actor or not.

      You have it exactly backwards. The point of the state actor doctrine is to look at the actor that is causing the deprivation to determine if their acts are a state action or not.

      But that is not the only way that an action can be a state action. The "state actor" doctrine (at least in the tradition of Marsh et. al.) is a subset of the "state action" doctrine.

      All that is necessary is that the regulation "be said to in any way foster or encourage" the acts that caused the loss of Constitutional rights (from Moose Lodge v. Irvis).

      Whether the DMCA does that is up for debate. But that is the debate that is relevant. Neither the DMCA nor any other statute needs to have private citizens "magically transformed into a state actor" to be a state action.

      And that gets us back to the entire reason this sub-thread was started. By now, even you must admit you were wrong when you said "Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint."

      The only one making that argument is you - and only so that you can "debunk" it. He is - and always was - saying that the state was imposing a prior restraint by enacting the DMCA procedures. You can (and, I'm sure, will) argue that his argument is deficient for that reason. That, at least, would be honest. You would probably be wrong, but at least you wouldn't be arguing against a straw man.

      To everyone else in the peanut gallery: I'm sure you're getting tired of this pissing contest. So, I'm going to just post a bunch of judicial quotes that, I believe, show that Average Joe A.C. is wrong.

      Read and digest them, follow the links to the full cases, do the "wiki walk" to other cases that are cited. If you do that, you will be more and more convinced that Cowardly Joe here is being deceptive - regardless of whether you think I'm right or not.

      The terms of 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law." [...]

      [T]here is much support in lower court opinions for the conclusion that discriminatory acts by private parties done under the compulsion of state law offend the Fourteenth Amendment. In Baldwin v. Morgan, supra, the Fifth Circuit held that
      "[t]he very act of posting and maintaining separate [waiting room] facilities when done by the [railroad] Terminal as commanded by these state orders is action by the state."

      The Court then went on to say:
      "As we have pointed out above, the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so."

      Id. at 755-756 (emphasis added [by the court]). We think the same principle governs here.

      For state action purposes, it makes no difference, of course, whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law -- in either case, it is the State that has commanded the result by its law.
      - Adickes v. S. H. Kress & Co.

      A private entity's actions may be attributable to the State if [...] the State exercised such coercive power that the private actor was compelled to act as it did[.] [...]

      This test requires that the act be the product either of State coercion or significant encouragement. This is generally the case where a State enacts regulatory requirements with which private entities must comply.
      - Carson v. Springfield College

      It cannot be denied that here, the City of Greenville, an agency of the State, has provided by its ordinance that the decision as to whether a restaurant facility is to be operated on a desegregated basis is to be reserved to it. When the State has commanded a particular result, it has saved to itself the power to determine that result, and thereby, "to a significant extent," has "become involved" in it, and, in fact, has removed that decision from the sphere of private choice.
      - Peterson v. City of Greenville

      We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute.
      - New York Times Co. v. Sullivan

      Although this is a civil lawsuit between private parties, the application of state rules of law by the Mississippi state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the Fourteenth Amendment.
      - NAACP v. Claiborne Hardware Co.

      State laws whether statutory or common law, including tort rules, constitute state action.
      - Paul v. Watchtower Bible & Tract Soc. Of New York

      [N]o State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith.
      - Burton v. Wilmington Parking Authority

      Under the decisions of the Supreme Court and this court, municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose "moving force" is the policy or custom.
      - Piotrowski v. City Of Houston

       

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    Anonymous Coward, Sep 20th, 2013 @ 8:21am

    It's as if the loyalists on this blog start with a conclusion informed by bias, work backwards attempting to jumble together cherry-picked policy and "legal" arguments to help justify that conclusion, and then attack anyone who dares to challenge their flawed reasoning. It's such a sad and backward way of growing as a person.

    Guys, the AC is correct. If the DMCA was some clear violation of due process, do you think no one else would have challenged it in court by now? You're swinging at windmills, and angry that someone has dared to tell you so. Open your mind and learn instead of dogmatically defending your conclusions.

     

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      Karl (profile), Sep 20th, 2013 @ 8:37pm

      Re:

      I would also be remiss if I didn't address this?

      If the DMCA was some clear violation of due process, do you think no one else would have challenged it in court by now?

      Who, exactly, do you think would challenge it?

      The copyright holders benefit from it, because they do not need to go through the courts in order to take down speech. Even so, many don't like it - for the opposite reason: they think that they shouldn't have to act at all for infringing speech to magically disappear. They've continuously list that battle in court, however, so now they're trying to change it by bribing Congress instead.

      The ISPs might stand up for the rights of their users - except that the DMCA offers them blanket immunity from them, too. The only thing that's left is a clear and meticulously-defined process that grants them immunity from the lawsuit-happy rights holders that are out to get them, and the legal muck that is secondary liability law. What ISP would want to rock that boat?

      So the only people with a strong motive to challenge it are members of the general public. People who do not have the time, energy, or resources to bring a suit over anything. People who have been shown, again and again, that courts enforce copyright laws, not to protect them, but to destroy them.

      It's a miracle that even this situation made it to court.

       

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    Anonymous Coward, Sep 20th, 2013 @ 9:08am

    It's as if the loyalists on this blog start with a conclusion informed by bias, work backwards attempting to jumble together cherry-picked policy and "legal" arguments to help justify that conclusion, and then attack anyone who dares to challenge their flawed reasoning. It's such a sad and backward way of growing as a person.

    That's exactly what happens on Techdirt all the time. It's an echo chamber if there ever was one. It's too bad Mike isn't willing to back up his claims. Well, at least not willing to sign in and then do so anyway. He knows he can't actually make the legal arguments, but that doesn't stop him from working backwards and "reaching" his legal conclusions. Call him out for it and you'll find yourself censored. He really can't stand any criticism. It is really sad. I don't get why he's so insecure about himself. It's a shame.

     

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    Anonymous Coward, Sep 20th, 2013 @ 7:11pm

    Exactly. It's not a written license, but then, licenses don't have to be in writing. They just need to constitute permission to do something issued by the rights holder, and being told to take it to a blog qualifies.

    The licensee then having published the photo as part of a news article, the rights owner cannot retroactively revoke that license.

    Knowing that she had given that license, a DMCA takedown cannot be in good faith because there IS a use license.

    Congress may or may not have intended that a notice giver verify affirmative defenses, but they absolutely DID require a truthful, or at least good faith, belief that a use is infringing. Issuing a takedown because someone you gave a license to used the license exactly as worded is NOT good faith or truthful.

    Under penalty of perjury, anyone?


    Even if you take the caption Crosley-Corcoran put under the picture as giving Tuteur a license, that license was clearly revoked by Crosley-Corcoran when she sent the cease and desist to Tuteur. You say that it would be irrevocable, but I don't see why that would be so. Nonexclusive licenses unsupported by consideration are revocable at will by the licensor. Since the takedown notice was sent after the revocation, I don't see the bad faith. What specifically was the misrepresentation?

     

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    Anonymous Coward, Sep 21st, 2013 @ 7:49am

    You have it exactly backwards. The point of the state actor doctrine is to look at the actor that is causing the deprivation to determine if their acts are a state action or not.

    Youíre splitting a hair that doesnít need to be split. The state action doctrine is also called the state actor doctrine. Theyíre the same thing. The terms are used interchangeably. The issue is whether itís state action. The court looks at the defendant to determine if he or she is a state actor. If so, then itís state action. And if not, then itís not. It's really simple.

    But that is not the only way that an action can be a state action. The "state actor" doctrine (at least in the tradition of Marsh et. al.) is a subset of the "state action" doctrine.

    Iím really not following you. There are several distinct tests used to do the analysis. The test in Marsh was the public function test.

    All that is necessary is that the regulation "be said to in any way foster or encourage" the acts that caused the loss of Constitutional rights (from Moose Lodge v. Irvis).

    The Court there is saying that the state regulation at issue did not foster racial discrimination. Whatís that got to do with your theory that the state actor doctrine is distinct from the state action doctrine?

    Whether the DMCA does that is up for debate. But that is the debate that is relevant. Neither the DMCA nor any other statute needs to have private citizens "magically transformed into a state actor" to be a state action.

    If you want to actually do the analysis, you have to first determine which distinct state action test youíre going to use. You canít just jumble them altogether. Pick a test, list out the factors or elements, and then apply it to the DMCA.

    And that gets us back to the entire reason this sub-thread was started. By now, even you must admit you were wrong when you said "Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint."

    Mike was citing Seltzer, and they both were making the argument that the speech at issue couldnít be restrained until there had been an adversarial hearing. Thatís the classic prior restraint argument. Iím sorry you still donít understand it. The reason Seltzer and Mike claim that the recipient is ďcompelledĒ to act is because that compulsion is thought to turn an otherwise private actor into a state actor such that the First Amendment applies to them.

    The only one making that argument is you - and only so that you can "debunk" it. He is - and always was - saying that the state was imposing a prior restraint by enacting the DMCA procedures. You can (and, I'm sure, will) argue that his argument is deficient for that reason. That, at least, would be honest. You would probably be wrong, but at least you wouldn't be arguing against a straw man.

    I quoted the section from Seltzer above. She even uses the words ďprior restraint.Ē Itís really quite simple. Sorry you donít understand it. The parties that actually carry out the restraint are the rightholder who sends the notice and the service provider who receives it. Or you could even say that itís the service provider. Unless you can characterize one or both of them as a state actor, it canít be a prior restraint. Youíre not looking at the parties that are causing the deprivation. If Liberation Music sends a takedown notice to YouTube and YouTube takes down Lessigís video, it canít be a prior restraint unless either Liberation Music or YouTube is a state actor. You canít have state action carried out by private parties who are not state actors and have it be a prior restraint.

    To everyone else in the peanut gallery: I'm sure you're getting tired of this pissing contest. So, I'm going to just post a bunch of judicial quotes that, I believe, show that Average Joe A.C. is wrong.

    Iím on the edge of my seat.

    Read and digest them, follow the links to the full cases, do the "wiki walk" to other cases that are cited. If you do that, you will be more and more convinced that Cowardly Joe here is being deceptive - regardless of whether you think I'm right or not.

    This from a guy who canít admit a single error above. This from the guy who admits he doesnít have time to study the law. Gotcha.

    The terms of 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law." [...]

    [T]here is much support in lower court opinions for the conclusion that discriminatory acts by private parties done under the compulsion of state law offend the Fourteenth Amendment. In Baldwin v. Morgan, supra, the Fifth Circuit held that

    "[t]he very act of posting and maintaining separate [waiting room] facilities when done by the [railroad] Terminal as commanded by these state orders is action by the state."

    The Court then went on to say:

    "As we have pointed out above, the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so."

    Id. at 755-756 (emphasis added [by the court]). We think the same principle governs here.

    For state action purposes, it makes no difference, of course, whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law -- in either case, it is the State that has commanded the result by its law.

    - Adickes v. S. H. Kress & Co.


    Yes, Adickes is the classic case for whether governmental compulsion turns a private actor into a state actor. The issue there was the state-enforced custom of segregation. That segregation is illegal. Service providers deciding to take down content because of the fear of secondary liability is not illegal. And nothing in the DMCA says that a service provider must do it. Iím just not getting your argument, whatever it may be.

    A private entity's actions may be attributable to the State if [...] the State exercised such coercive power that the private actor was compelled to act as it did[.] [...]

    This test requires that the act be the product either of State coercion or significant encouragement. This is generally the case where a State enacts regulatory requirements with which private entities must comply.

    - Carson v. Springfield College


    Thatís another test under the state action doctrine. Youíre just cherry picking quotes, and your overly-expansive understanding of compulsion would mean that everyone who follows the law is a state actor. Thatís simply not true.

    It cannot be denied that here, the City of Greenville, an agency of the State, has provided by its ordinance that the decision as to whether a restaurant facility is to be operated on a desegregated basis is to be reserved to it. When the State has commanded a particular result, it has saved to itself the power to determine that result, and thereby, "to a significant extent," has "become involved" in it, and, in fact, has removed that decision from the sphere of private choice.

    - Peterson v. City of Greenville


    Yes, the state commanded that there be segregation. Thatís illegal. Thereís nothing illegal about YouTube taking down a video because it fears secondary liability for copyright infringement. Iím just seeing your argument.

    We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute.

    - New York Times Co. v. Sullivan


    The state action there was the court: ďthe Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press.Ē Thereís your state action. You arenít making any sense with this stuff. Whatís that got to do with whether there is state action in the DMCA takedown notice context? By the way, if you read the opinion Mike embedded above with the article, the judge even refers to DMCA notices as being "extrajudicial." The court: "The mechanism works as follows. A party with a good faith belief that posted material infringes a copyright in which he or she (or it) has an ownership interest, may file an extrajudicial 'takedown' notice with the ISP." LOL! You couldn't even admit that you got that one wrong. It's amazing. You'll argue about the dumbest things, even when you have no clue what you're talking about.

    Although this is a civil lawsuit between private parties, the application of state rules of law by the Mississippi state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the Fourteenth Amendment.

    - NAACP v. Claiborne Hardware Co.


    The court supplied the necessary state action. How does that apply to the DMCA?

    State laws whether statutory or common law, including tort rules, constitute state action.

    - Paul v. Watchtower Bible & Tract Soc. Of New York


    One sentence pulled out of context. Of course legislators making statutes are state actors and judges making decisional law are state actors. But how does that apply to the DMCA? Whereís the state action when a private party sends a takedown notice to another private party?

    [N]o State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith.

    - Burton v. Wilmington Parking Authority


    Great language. How does that apply to the DMCA? Youíre just pulling random quotes out of thin air rather than making any legal arguments.

    Under the decisions of the Supreme Court and this court, municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose "moving force" is the policy or custom.

    - Piotrowski v. City Of Houston


    What constitutional rights are violated when YouTube decides to take down some video? Youíre not making any coherent legal arguments, Karl. Youíre totally clueless.

     

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      Karl (profile), Sep 21st, 2013 @ 1:23pm

      Re:

      Sigh. I am going to fail this semester if I keep this up.
      The court looks at the defendant to determine if he or she is a state actor. If so, then itís state action. And if not, then itís not.

      No. The court looks at the action to see if it can be "fairly attributed to the state."

      Let's assume that there is actually a Constitutional right being violated by some action. To resolve the "state action" issue, courts make these determinations, generally in this order:

      1. If the actor was someone who holds a position of official authority within any branch of the government, it is a state action. (Ft. Wayne Books, the ICE seizures.)

      2. If an otherwise private action is actually enforced by the state (e.g. through seizure, preliminary injunction, or judicial enforcement of a private contract), then it is a state action. The state officials (judges, law enforcement officials, etc.) are the state actors. (NYT, NAACP, Shelley, etc.)

      3. If the act was done "by private parties done under the compulsion of state law," it is a state action. State law includes "any statute, ordinance, regulation, custom, or usage" having the force of law. The "state actor" is the state itself, since "it is the State that has commanded the result by its law." (CDT, Bantam Books, Playboy, Peterson.)

      This determination does not require that the private party be "magically transformed into a state actor," and in these situations, no court that I am aware of has claimed that it did.

      This sub-test has a few lemmas:
      3a. "Compulsion" need not require formal state sanctions; the sanctions may be informal or merely threatened. (Bantam Books, CDT)
      3b. "Compulsion" is not limited to punishment; a private actor can also be compelled through "significant encouragement." (Carson)
      3c. The mere possiblity that private actors can obey the law in ways that are not unconstitutional, does not mean their actions are not commanded by the state. If the "operation and effect" of their obedience results in unconstitutional action, the state is responsible, and the law is unconstitutional. (CDT, Playboy)
      3c. The law is unconstitutional even if the private party would have acted as he did independently of the existence of that law. (Peterson)

      4. If the action was done by someone who is not a state official, and was not done "under the compulsion of state law," only then is it necessary to determine whether the actor is "transformed into a state actor." There are several different tests for this:

      4a. If the private actor was "jointly engaged with state officials in the prohibited action," the private actor is transformed into a state actor. (Burton, Adickes)

      4b. If the private actor is "engaged in actions that are traditionally and exclusively within the province of the state," they are a state actor, and their actions are state actions. (Marsh, Schneider)

      An action fails to be a "state action" in these cases only:

      A. When the action is "merely private conduct" - conduct between purely private actors, voluntarily and privately enforced, without any state involvement whatsoever. (No case that we have discussed meets this criteria.)

      B. When the action is otherwise "merely private" (as in A. above), but done by an actor who is state-compensated or state-regulated in ways that are unrelated to the conduct. (Moose Lodge, Jackson, Carson)

      C. When the ordinance which specified the action has no force of law, but is "educational and advisory merely." (Standard Computing Scale Co. v. Farrell)

      Congress, who created the DMCA statutes, meets 1. The judiciary, who must consider DMCA compliance, also meet 1. The recipient of a DMCA notice meet 3. It could also be argued that the sender of a DMCA notice meets 4b.

      The one thing that it is not is A, "merely private conduct." Arguing otherwise is ridiculous.



      Conduct allegedly causing the deprivation of a constitutional right protected against infringement by a State must be fairly attributable to the State. In determining the question of "fair attribution," (a) the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by it or by a person for whom it is responsible, and (b) the party charged with the deprivation must be a person who may fairly be said to be a state actor, either because he is a state official, because he has acted together with or has obtained significant aid from state officials or because his conduct is otherwise chargeable to the State. [...]

      Insofar as petitioner alleged only misuse or abuse by respondents of Virginia law, he did not state a cause of action under 1983, but challenged only private action. Such challenged conduct could not be ascribed to any governmental decision, nor did respondents have the authority of state officials to put the weight of the State behind their private decision. However, insofar as petitioner's complaint challenged the state statute as being procedurally defective under the Due Process Clause, he did present a valid cause of action under 1983.
      - Lugar v. Edmondson Oil

      That is clearly the type of challenge that Mike and Prof. Seltzer are talking about.

      Service providers deciding to take down content because of the fear of secondary liability is not illegal.

      If that content is protected by the First Amendment, then yes, it is. When ISPs are threatened with legal liability (unquestionably a state action), as determined by legal statute (also unquestionably a state action), if ISPs don't take down protected content, then the state has censored protected speech. There is absolutely no question about this.

      There is also no question that this is what the state does. If ISPs don't follow the DMCA process, they lose their protection from state action, regardless of whether that content is Constitutionally protected or not. A very small minority may choose to lose that protection, but only if they're certain they don't need it, and that will never happen when the line is "dim and uncertain."

      The only chance the DMCA has to be Constitutionally valid is if the statutes make sure that such "dim and uncertain" content never makes it into a DMCA notice in the first place. If the statutes provide effective deterrents to the senders of DMCA notices, such that they do not send notices in "dim and uncertain" cases, then I believe the statutes pass Constitutional muster. But if they don't, then the statutes have the "operation and effect" of silencing a significant amount of protected speech. And that is unquestionably unconstitutional.

       

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        Karl (profile), Sep 21st, 2013 @ 1:28pm

        Re: Re:

        Huh. The quote from Luger, above, was a reply to this:

        Mike was citing Seltzer, and they both were making the argument that the speech at issue couldnít be restrained until there had been an adversarial hearing. Thatís the classic prior restraint argument.

        For whatever reason, the site ate that part of my comment.

         

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    Anonymous Coward, Sep 21st, 2013 @ 7:51am

    Who, exactly, do you think would challenge it?

    Um, Lessig could be challenging it in his current 512(f) action. He's not. That should tell you something. It should, but clearly it doesn't.

     

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    Anonymous Coward, Sep 21st, 2013 @ 8:24am

    Youíre splitting a hair that doesnít need to be split. The state action doctrine is also called the state actor doctrine. Theyíre the same thing. The terms are used interchangeably. The issue is whether itís state action. The court looks at the defendant to determine if he or she is a state actor. If so, then itís state action. And if not, then itís not. It's really simple.

    Let me clarify this because I think maybe I see your confusion. Sometimes the state action is the court applying the law, whether it be statutory, regulatory, decisional, etc. So in NYT v. Sullivan, the state action was the court applying the stateís libel law. Sullivan could have contacted the NYT and threatened them or asked them not to publish or whatever, and that wouldnít be state action. There was no state action until the court applied the state libel law, and that was the state action that made the First Amendment applicable. The party imposing the restraint under color of law, the court, was a state actor.

    But that sort of state action isnít applicable with the DMCA. A rightholder doesnít go to court to enforce its right under the DMCA to have content taken down since the DMCA doesnít create any right to have content taken down. The court doesnít apply the DMCA and order the defendant to take content down and hold the defendant liable for not taking content down because of the DMCA. Thereís no cause of action, other than misrepresentation, under the DMCA that a court would apply that makes it a state actor. Since the DMCA creates no such cause of action and the court isnít ordering the take down of material under the DMCA, the question is whether the rightholder or the service provider that actually is restraining the speech is a state actor. If not, then thereís simply no state action and there can be no prior restraint.

    The trick is to look at who is imposing the restraint. That party has to be a state actor, or else the First Amendment doesn't apply to them. If it's a court applying the law, then the court is the state actor imposing the restraint. If it's a given party imposing the restraint, then the question is whether that party is a state actor such that the First Amendment applies to them. Since courts don't restrain speech under the DMCA, you have to show that the parties that actually do the restraining are state actors. I hope this helps.

     

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    Anonymous Coward, Sep 22nd, 2013 @ 9:59am

    No. The court looks at the action to see if it can be "fairly attributed to the state."

    Let's assume that there is actually a Constitutional right being violated by some action. To resolve the "state action" issue, courts make these determinations, generally in this order:

    1. If the actor was someone who holds a position of official authority within any branch of the government, it is a state action. (Ft. Wayne Books, the ICE seizures.)

    2. If an otherwise private action is actually enforced by the state (e.g. through seizure, preliminary injunction, or judicial enforcement of a private contract), then it is a state action. The state officials (judges, law enforcement officials, etc.) are the state actors. (NYT, NAACP, Shelley, etc.)

    3. If the act was done "by private parties done under the compulsion of state law," it is a state action. State law includes "any statute, ordinance, regulation, custom, or usage" having the force of law. The "state actor" is the state itself, since "it is the State that has commanded the result by its law." (CDT, Bantam Books, Playboy, Peterson.)

    This determination does not require that the private party be "magically transformed into a state actor," and in these situations, no court that I am aware of has claimed that it did.


    Blah, blah, blah. I love how you now have to be an expert on a doctrine that you didnít even understand in the slightest just days ago. Iím starting to see that itís an ego thing with you. You don't have to pretend to be an expert on every legal doctrine you discuss, Karl. You'd look a whole lot smarter, ironically enough, if you just admitted that you don't understand the nuances. The party that imposes the restraint or deprivation must be a state actor. You havenít disproved that, nor can you because itís true. Actions are done by actors. Itís really simple. You havenít disproved that the state action doctrine is the same thing as the state actor doctrine, nor can you because itís true.

    Conduct allegedly causing the deprivation of a constitutional right protected against infringement by a State must be fairly attributable to the State. In determining the question of "fair attribution," (a) the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by it or by a person for whom it is responsible, and (b) the party charged with the deprivation must be a person who may fairly be said to be a state actor, either because he is a state official, because he has acted together with or has obtained significant aid from state officials or because his conduct is otherwise chargeable to the State. [...]

    Insofar as petitioner alleged only misuse or abuse by respondents of Virginia law, he did not state a cause of action under 1983, but challenged only private action. Such challenged conduct could not be ascribed to any governmental decision, nor did respondents have the authority of state officials to put the weight of the State behind their private decision. However, insofar as petitioner's complaint challenged the state statute as being procedurally defective under the Due Process Clause, he did present a valid cause of action under 1983.

    - Lugar v. Edmondson Oil

    That is clearly the type of challenge that Mike and Prof. Seltzer are talking about.


    That doesnít change the fact that Seltzer and Mike are arguing prior restraint when they say that more procedural safeguards are needed before the speech is restrained. You still donít get the state action doctrine. Lugar was an action under Section 1983 against a creditor who was acting under color of state law. That makes the creditor a state actor. The DMCA is a federal law, so you canít have a Section 1983 action since the state actor has to be acting under color of STATE law. Regardless, the big issue in Lugar was whether the creditor was a state actor. The district court held that the creditor wasnít, the Fourth Circuit affirmed, and the Supreme Court reversed. The key is that the party imposing the restraint has to be a state actor. They couldnít sue the creditor for violating their constitutional rights unless the creditor was a state actor. Whether the creditor was acting as a private actor or a state actor was critical.

    The same thing is critical with the DMCA. The party imposing the restraint, i.e., the service provider or the rightholder, must be a state actor. Thatís why Seltzer and Mike argue that the DMCA ďcompelsĒ them to act. Without that compulsion, there can be no state action as to the party that causes the restraint. If Lessig sues Liberation Music or YouTube for violating his constitutional rights, he needs to show that Liberation Music or YouTube was a state actor. He can't sue Liberation Music or YouTube and argue that his constitutional rights were violated by someone other than Liberation Music or YouTube as you seem to think. He can't sue Liberation Music or YouTube and then argue that his constitutional rights were violated by Congress and the DMCA but not by Liberation Music or YouTube as you seem to think.

    If that content is protected by the First Amendment, then yes, it is. When ISPs are threatened with legal liability (unquestionably a state action), as determined by legal statute (also unquestionably a state action), if ISPs don't take down protected content, then the state has censored protected speech. There is absolutely no question about this.

    Nonsense. Mike can delete all of our constitutionally protected comments from his website as he pleases. You still donít get that the party imposing the restraint has to be a state actor. If Mike is threatened with legal liability for not taking down infringing content and he chooses to take down infringing content, heís not a state actor. Simply acting to avoid being liable for a tort doesn't make someone a state actor. The law is meant to shape our actions. It's meant to deter. If I post something that infringes on Techdirt and Mike takes it down out of fear of liability, heís not a state actor. He canít violate my constitutional rights. I can't sue him for taking it down and then claim that some party other than him (like Congress) violated my First Amendment rights as you seem to think.

     

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      Karl (profile), Sep 22nd, 2013 @ 1:29pm

      Re:

      You don't have to pretend to be an expert on every legal doctrine you discuss, Karl.

      I am not pretending to be an expert on every legal doctrine. I am saying that even a non-expert like me can see that you're wrong.

      The party that imposes the restraint or deprivation must be a state actor. You havenít disproved that,

      Nor do I have to disprove that, because I never claimed otherwise. My argument is, and always has been, that the party that is imposing the restraint is Congress (through enacting the DMCA statutes) and/or the judiciary (through enforcing them).

      Actions are done by actors. Itís really simple.

      And if those actions are "fairly attributable to the State," they are state actions. It's really simple.

      That doesnít change the fact that Seltzer and Mike are arguing prior restraint when they say that more procedural safeguards are needed before the speech is restrained.

      Yes, they are. What they are not arguing is that the people who are imposing the prior restraint are ISPs, acting on their lonesome. The only one making that argument is you.

      Thatís why Seltzer and Mike argue that the DMCA ďcompelsĒ them to act. Without that compulsion, there can be no state action as to the party that causes the restraint.

      True, but immaterial, since the DMCA does in fact "compel" ISPs to act. It also "compels" the alleged infringers to act by a process strictly described by the DMCA statutes (at least, if they don't want their First Amendment rights to be violated). And it "compels" rights holders to act as strictly proscribed by statute, if they want their (state-created) rights to be enforced.

      The only way a Constitutional analysis could be avoided, is if the conduct of ISPs, rights holders, and takedown victims was all "merely private conduct" - as in A, above. This is obviously false.

      You have not shown a single case where it was determined that conduct specified by legal statute is "merely private conduct." And you can't. Because it's not.

      Mike can delete all of our constitutionally protected comments from his website as he pleases.

      But if he was doing so because it's the law, then it would be unconstitutional. It would be unconstitutional even if Mike was not "magically transformed into a state actor." It would be unconstitutional even if Mike did not face personal liability under a 1983 action.

      The question in general is whether Congress (state actor), in enacting the DMCA requirements (state action), was committing prior restraint, because the statutes require ISPs to take down content without the necessary safeguards. The question in the instant case is whether Judge Stearns (state actor) interpreted 512(f) liability (state action) in a way that encourages or endorses the censorship of protected speech.

      You're arguing that these questions cannot even be asked, because sending a DMCA notice (as specified by statute), which causes ISP censorship (as specified by statute), is somehow "merely private conduct." And furthermore, that this immunizes Congress and the judiciary from Constitutional scrutiny.

      It is a ridiculous argument.

       

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    Anonymous Coward, Sep 22nd, 2013 @ 12:07pm

    Hey Karl, let's take a step back because I really want you to understand this. Let's look specifically at the example of Liberation Music sending a takedown notice to YouTube over Lessig's video. Under Seltzer and Mike's theory, this violates the First Amendment rights of Lessig. Please explain to me, as you understand it, the following: (1) who would sue whom, (2) what would be the cause of action, and (3) who exactly is the state actor.

    With a DMCA takedown notice, you don't have the court imposing the restraint, so it's not like NYT v. Sullivan. You don't have the executive branch imposing the restraint, so it's not like CDT v. Pappert. It would be like Lugar v. Edmondson (except, as I mentioned above, it wouldn't be a Section 1983 action), but only if you can show that the party imposing the restraint, who would otherwise be a private actor, is a state actor.

    The fact is, you're citing cases like NYT v. Sullivan and CDT v. Pappert because you don't understand the basics of the state action doctrine. You're all over the place. It's totally ridiculous. Answer those three questions, if you will, and then we can move on from there. I'm happy to walk you through this. Clearly you need some major hand-holding because you are totally clueless. It would help if you considered the possibility that maybe there's something you don't understand.

     

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      Karl (profile), Sep 22nd, 2013 @ 2:19pm

      Re:

      Please explain to me, as you understand it, the following: (1) who would sue whom, (2) what would be the cause of action, and (3) who exactly is the state actor.

      (1) 512(f) creates a cause of action against the sender of a takedown notice, so in the initial stages at least, Lessig would sue (and is suing) Library Music. If that suit fails for the reasons specified in (3), then he could institute an action against the government itself.

      (2) The initial cause of action would be the one specified in 512(f). If this cause of action fails, then there could be a cause of action against the government, since the government enacted (Congress) and enforced (judiciary) the conditions under which the 512(f) action failed.

      (3) A 512(f) suit does not require that the sender be a state actor. However, in interpreting and enforcing the 512(f) action, the judge (as a member of the judiciary branch) is a state actor.

      In that lawsuit, as in all judicial actions, the judge is Constitutionally required to interpret and enforce 512(f) (as part of the DMCA generally) such that it is consistent with the First Amendment. If that is not possible under the language of 512(f), then 512(f), and possibly the entire DMCA, is itself unconstitutional.

      So, if that's the case, then Lessig could bring a civil suit against the government for enacting 512(f) (or possibly the entire DMCA) such that its enforcement infringed upon his First Amendment rights.

      But we're not at that point yet. We're at the point where the judge must interpret 512(f) in such a way that the DMCA comports with the First Amendment. If he does, no problem. If he can't, he must render the DMCA unenforceable.

       

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    Anonymous Coward, Sep 22nd, 2013 @ 2:06pm

    I am not pretending to be an expert on every legal doctrine. I am saying that even a non-expert like me can see that you're wrong.

    In these debates, youíve always done what youíre doing here. You pretend like youíre an expert about complicated and subtle legal doctrines while simultaneously proving that you donít even grasp the basics. And then you never admit any mistakes no matter how thoroughly youíre proved to be wrong. You go off on all sorts of tangents, unintentionally, because you donít even know enough about what youíre talking about to know when youíve changed the subject. You mix up all the doctrines into a silly jumbled mess. You do it every time.

    Nor do I have to disprove that, because I never claimed otherwise. My argument is, and always has been, that the party that is imposing the restraint is Congress (through enacting the DMCA statutes) and/or the judiciary (through enforcing them).

    Congress does not remove videos from YouTube. You need for the party that actually imposes the restraint or deprivation to be a state actor. You havenít cited, nor can you cite, a single case where the party that actually imposed the restraint was Congress. The whole point of the state action doctrine is to determine if the party that actually causes the deprivation is a state actor. If not, there can be no unconstitutional deprivation.

    And if those actions are "fairly attributable to the State," they are state actions. It's really simple.

    The point Iím responding to there, which you of course would rather not discuss, is where you claimed that the state action doctrine and the state actor doctrine are two separate doctrines. Theyíre not. You were wrong, and, of course, you wonít admit it.

    Yes, they are. What they are not arguing is that the people who are imposing the prior restraint are ISPs, acting on their lonesome. The only one making that argument is you.

    Are they, or are they not, arguing that the ISPs that remove complained-of content are state actors? They have to argue that the ISPs are state actors since the ISPs are the parties that actually remove the content. You canít argue that Congress is removing the content because Congress doesnít physically remove content from a service providerís system. The actual party that actually removes the content has to be a state actor.

    True, but immaterial, since the DMCA does in fact "compel" ISPs to act. It also "compels" the alleged infringers to act by a process strictly described by the DMCA statutes (at least, if they don't want their First Amendment rights to be violated). And it "compels" rights holders to act as strictly proscribed by statute, if they want their (state-created) rights to be enforced.

    Compel doesnít mean what you think it means. I understand that you disagree about whether the DMCA actually compels an ISP. I think youíre totally delusional if you think the DMCA compels rightholders to send DMCA notices if they want their rights to be enforced. They can, and do, send notices that arenít DMCA notices. And they can, and do, sue service providers without sending a notice. But I want to get to the bottom of the other issue. Do you or do you not agree that it canít be a prior restraint unless the service provider is a state actor?

    The only way a Constitutional analysis could be avoided, is if the conduct of ISPs, rights holders, and takedown victims was all "merely private conduct" - as in A, above. This is obviously false.

    Why is it false? Do you agree that the service providers have to be state actors or else it canít be a constitutional violation?

    You have not shown a single case where it was determined that conduct specified by legal statute is "merely private conduct." And you can't. Because it's not.

    I mentioned the shopkeeper cases. But you donít grasp that your silly theory would mean that everyone who follows the law is a state actor. It doesnít work that way. I pointed out quotes above of the Supreme Court saying that even regulated business, whose conduct absolutely is specified by legal statute, are not state actors. So when you say I havenít shown a single case, youíre just wrong.

    But if he was doing so because it's the law, then it would be unconstitutional. It would be unconstitutional even if Mike was not "magically transformed into a state actor." It would be unconstitutional even if Mike did not face personal liability under a 1983 action.

    So many things wrong with this. If Mike werenít a state actor, and he was doing it, then it wouldnít be a constitutional violation. You really are missing this simple, fundamental point. Itís just like in Lugar. It couldnít be a constitutional violation unless the creditor was a state actor. You need the actual party that actually causes the deprivation to be a state actor. Iím sorry you donít understand this. You havenít, and canít, find one single case where the party that imposed the restraint wasnít a state actor. Thatís the whole point of the state action doctrine.

    The question in general is whether Congress (state actor), in enacting the DMCA requirements (state action), was committing prior restraint, because the statutes require ISPs to take down content without the necessary safeguards.

    No. No. No. The actual party that actually causes the restrain has to be a state actor. The only way it can be a prior restraint is if the ISPs are state actors. You simply cannot have the ISPs, the parties that actually restrain the speech, be private actors yet itís still prior restraint. The point is so simple. Every single case discussed above follows this rule.

    The question in the instant case is whether Judge Stearns (state actor) interpreted 512(f) liability (state action) in a way that encourages or endorses the censorship of protected speech.

    Bullshit. The judge is not restraining the speech in the 512(f) action. The actual party that actually restrained the speech is the ISP. That restraint happens whether thereís a 512(f) action or not. Mikeís theory that Lessigís First Amendment rights were violated doesnít turn on there being a 512(f) action. His theory is that thereís a constitutional deprivation whether or not thereís a 512(f) action. Youíre so grasping at straws with this stuff.

    You're arguing that these questions cannot even be asked, because sending a DMCA notice (as specified by statute), which causes ISP censorship (as specified by statute), is somehow "merely private conduct." And furthermore, that this immunizes Congress and the judiciary from Constitutional scrutiny.

    It is a ridiculous argument.


    Itís only ridiculous if you start with your conclusion, as you and Mike do, and then work backwards. It canít be a prior restraint unless the actual party that actually causes the restraint is a state actor. You donít get to challenge it as a prior restraint if thereís no state actor causing the restraint. Itís simple extrajudicial, private action that happened before the DMCA and would happen without the DMCA. Rightholders were sending takedown notices to ISPs before the DMCA. The threat of liability for infringement existed before the DMCA. Youíre acting like the DMCA changed everything. It didnít.

    You can't just say that Congress enacted the DMCA so there's your state action. You need the party that actually causes the restraint to be a state actor. If it's the court imposing the restraint, following Congress's law, then it's the court that is the state actor. If it's a law enforcement agent imposing the restraint, following Congress's law, then it's the law enforcement agent that is the state actor. And if it's an otherwise private actor imposing the restraint, following Congress's law, then it's not a constitutional violation unless that private actor is a state actor. It's really simple, Karl. I don't know why you're so hard-headed with this stuff. You admit that you've not studied the law and that you don't have time to study the law. Why be so closed-minded to someone pointing out the law? I don't get it.

     

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      Karl (profile), Sep 22nd, 2013 @ 5:06pm

      Re:

      At this point, I'm just going to ignore the ad homs.

      Congress does not remove videos from YouTube.

      Congress requires, by statute, that the videos be removed. The removal of those videos is "fairly attributed to" the statutes. That puts them within the reach of Constitutional analysis.

      where you claimed that the state action doctrine and the state actor doctrine are two separate doctrines.

      When people discuss whether a private actor becomes a "state actor," they're usually talking about #4 in my previous comment. And in this entire conversation, it's the way you used it, too. (See e.g. your "mowing the lawn" example.)

      But the doctrine does not require that private parties, when compelled to act by law, be "magically transformed into state actors" in order for their acts to be attributable to the State. That is abundantly clear from the sources that both you and I have quoted.

      Thus, whether an action is a "state action" is a separate, and broader, question than the narrow question of whether private parties are transformed into state actors. If we can both agree on this, then we should move on.

      Are they, or are they not, arguing that the ISPs that remove complained-of content are state actors?

      No, they are not. In Mike's own words, they are arguing that ISPs "are compelled to do so by the government." By their argument, recipients of a takedown notice are no more "state actors" than the ISPs in CDT, the cable operators in Playboy, or the booksellers in Bantam. They are arguing that the government, not the ISPs, are the state actors. And I agree.

      They have to argue that the ISPs are state actors since the ISPs are the parties that actually remove the content.

      No, they don't have to argue this. They can also argue that the the parties that actually remove the content were compelled to do so by a state actor. Which is what they are, in fact, arguing.

      You canít argue that Congress is removing the content because Congress doesn't physically remove content from a service providerís system.

      Congress didn't physically block the content in the Playboy case. The state of Pennsylvannia didn't physically take down content in the CDT case. The state of Rhode Island didn't physically remove content from any bookstore in the Bantam case. I'm sure both of us could find other cases as well.

      To be considered a state action, it is not a requirement that the physical removal be done by a state official. It is enough that it be done under the compulsion of a state actor (or actors). Congress is such a state actor, and a legally-enforcable statute is such a compulsion.

      I think youíre totally delusional if you think the DMCA compels rightholders to send DMCA notices if they want their rights to be enforced. They can, and do, send notices that arenít DMCA notices.

      But if the notices are not compliant with the DMCA, they have no legal force whatsoever. That's not the case if they're DMCA-compliant notices. That distinction makes the notice-and-takedown process subject to Constitutional analysis.

      And they can, and do, sue service providers without sending a notice.

      And if the ISP complies with the DMCA statutes, the judiciary is required to dismiss those lawsuits.

      Do you or do you not agree that it can't be a prior restraint unless the service provider is a state actor? [...] Do you agree that the service providers have to be state actors or else it canít be a constitutional violation?

      I do not agree. It can also be a prior restraint if the service provider is compelled to act by statute. See above.

      Do you or do you not believe that private parties, when compelled to act by statute, are "magically transformed into state actors" through their compliance?

      But you donít grasp that your silly theory would mean that everyone who follows the law is a state actor.

      By my "silly theory," the actions compelled by the law would be attributable to the state that enacted that law.

      But by your "silly theory," a state can enact laws that people are compelled to follow, but it is not a state action unless those people meet the "state actor" requirement.

      I've already posted several quotes that support my "silly theory." You have posted none that support yours.

      I pointed out quotes above of the Supreme Court saying that even regulated business, whose conduct absolutely is specified by legal statute, are not state actors.

      And as I pointed out, repeatedly, that it's only the case because the legal statutes don't regulate the conduct in question. The statutes regulate unrelated conduct. The question was whether that regulation turned them into state actors to such a degree that all of their conduct (regulated or not) could be considered "state action."

      Private actors don't need to be transformed into "state actors" of this particular variety for their acts to be attributable to the state. If their actions are compelled by statute, it is still a state action.

      You havenít, and canít, find one single case where the party that imposed the restraint wasnít a state actor.

      You must have a different definition of "impose" than everyone else. From Merriam-Webster: "to cause (something, such as a tax, fine, rule, or punishment) to affect someone or something by using your authority." The free legal dictionary offers these synonyms: command, compel, decree, dictate, direct, drive, enact, impel, ordain, order; bring under rule, oblige, require, or subject to authority. (And more along those lines.)

      Thus, "the parties that impose the restraint" need not be the same as "the parties that actually remove the content." The question isn't who carried out the restraint; the question is who provided the authority for the restraint.

      So, if Congress (or any other state actor), by the authority of law, obliges an ISP to restrain content, they have "imposed" that restraint. It is not necessary that Congress choose the specific content, or physically remove the content, or whatever; they "impose" the restraint by enacting the law. That is in agreement with all the cases I have cited, and no case I am aware of has decided otherwise.

      Itís simple extrajudicial, private action

      And, here, you're again using "extrajudicial" as a synonym for "extralegal." An action does not become a "private action" merely because it's extrajudicial. Conduct that is specified by statute is not "merely private conduct," whether the conduct occurs extrajudicially or not.

      And if it's an otherwise private actor imposing the restraint, following Congress's law, then it's not a constitutional violation unless that private actor is a state actor.

      Restating your claim does not make it correct. And it is not correct. If it's an otherwise private actor carrying out the restraint, by following Congress's law, then it certainly is a Constitutional violation. That's exactly what happened in Playboy. If you substitute "the state" for "Congress," it's exactly what happened in CDT, Bantam, and probably hundreds of other First Amendment cases.

      You have cited no authority - none whatsoever - for this claim. Because it is simply not true.

       

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    Anonymous Coward, Sep 22nd, 2013 @ 2:24pm

    But if he was doing so because it's the law, then it would be unconstitutional. It would be unconstitutional even if Mike was not "magically transformed into a state actor." It would be unconstitutional even if Mike did not face personal liability under a 1983 action.

    Just to show you how misguided your argument is, let me point you right back to Lugar. If the action in that case could have violated the Constitution whether or not the creditor was a state actor, then why on earth did the district court, appellate court, and Supreme Court spend so much time discussing whether the creditor was a state actor? Under your theory, whether there was a constitutional violation was true whether or not the creditor was a state actor. But clearly, the entire case turned on whether the creditor, the actual party that actually imposed the deprivation, was a state actor. If he was not, then there could be no constitutional violation. That was the crux of the case. The Court didn't say, as you seem to think, that since the creditor was following the law there was the necessary state action even if the creditor himself was not a state actor. See my point? The creditor HAD to be a state actor or else there couldn't be a constitutional violation.

     

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    Anonymous Coward, Sep 24th, 2013 @ 6:48pm

    (1) 512(f) creates a cause of action against the sender of a takedown notice, so in the initial stages at least, Lessig would sue (and is suing) Library Music. If that suit fails for the reasons specified in (3), then he could institute an action against the government itself.

    (2) The initial cause of action would be the one specified in 512(f). If this cause of action fails, then there could be a cause of action against the government, since the government enacted (Congress) and enforced (judiciary) the conditions under which the 512(f) action failed.

    (3) A 512(f) suit does not require that the sender be a state actor. However, in interpreting and enforcing the 512(f) action, the judge (as a member of the judiciary branch) is a state actor.

    In that lawsuit, as in all judicial actions, the judge is Constitutionally required to interpret and enforce 512(f) (as part of the DMCA generally) such that it is consistent with the First Amendment. If that is not possible under the language of 512(f), then 512(f), and possibly the entire DMCA, is itself unconstitutional.

    So, if that's the case, then Lessig could bring a civil suit against the government for enacting 512(f) (or possibly the entire DMCA) such that its enforcement infringed upon his First Amendment rights.

    But we're not at that point yet. We're at the point where the judge must interpret 512(f) in such a way that the DMCA comports with the First Amendment. If he does, no problem. If he can't, he must render the DMCA unenforceable.


    Wow. This is epically clueless, Karl. The 512(f) action is for misrepresentation. Whether or not thereís a misrepresentation has absolutely nothing to do with whether thereís a constitutional violation. Yes, the judge would be a state actor in hearing a 512(f) claim, but that doesnít mean the 512(f) action turns into a First Amendment claim. If Liberation Music also killed Lessigís dog, he couldnít sue Liberation Music for conversion and then say that now that the court is supplying the state action hereís my unrelated First Amendment claim. It makes no sense. Even if ďthe judge must interpret 512(f) in such a way that the DMCA comports with the First Amendment,Ē that analysis would only be limited to the misrepresentation. You would not make the First Amendment claim a part of the 512(f) claim because whether thereís a First Amendment violation has nothing to do with whether thereís a misrepresentation. Mike and Seltzerís argument is that responding to the takedown notice is a prior restraint on the service providerís part. Whether the takedown notice is legitimate or illegitimate is irrelevant. Itís a prior restraint either way under their theory.

     

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      Karl (profile), Sep 25th, 2013 @ 11:57pm

      Re:

      I'm replying to both your comments here to keep things easier to read.

      Whether or not thereís a misrepresentation has absolutely nothing to do with whether thereís a constitutional violation.

      It has everything to do with whether there's a Constitutional violation, and a simple thought exercise will show why.

      Suppose that Congress, alarmed at all the obscenity on the Internet, chose to pass the Actions Opposing Online Obscenity General Act ("AOOOGA"). This statute allows any citizen to file a notice to an ISP that accuses a piece of content of being obscene. To comply with the statute, ISPs are obligated to immediately take down the content.

      Now, all is not lost for free speech advocates, because Congress also included the Takedown Liability Clause ("TLC"). This provides civil liability for those who "misrepresent" that material is obscene. But here's where it gets unsavory. The terms of the TLC dictate that a sender of a takedown notice can only be liable for "misrepresentation" if they did not make a purely subjective determination that the content was obscene. Furthermore, the burden of proof lies on the people whose work was taken down to prove that the sender did not make this purely subjective determination.

      These terms would pretty much render the TLC unenforceable. Without any consequences for taking down protected speech, such a system would foster widespread abuse. In fact, I think we can both agree that the "operation and effect" of AOOOGA would be to primarily take down speech that was Constitutionally protected. I'm pretty sure neither of us believe it would pass Constitutional muster.

      Now, you could argue that this situation is not analogous to the DMCA, but that is a separate argument. You could also argue that the AOOOGA was unconstitutional in other ways, but this is, again, a separate argument.

      What you absolutely could not argue is that the terms of the TLC had "absolutely nothing to do with whether thereís a constitutional violation."

      And while we're at it, you absolutely could not argue that the AOOOGA was completely outside of the realm of Constituional scrutiny, because the senders and recipients of the obscenity takedown notices were engaging in "merely private conduct."

      At least when I think you have something wrong, I don't accuse you of lying in bad faith as you do to me.

      Believe me, I am being kind. You have proved, over and over again, that you can only argue against straw men. You do so in the very comment I am replying to:

      Mike and Seltzerís argument is that responding to the takedown notice is a prior restraint on the service providerís part.

      That is absolutely not what anyone is arguing. There is not a hint of a suggestion in Prof. Seltzer's paper that this is her argument. Mike himself has come here and explicitly said that it's not his argument. And I've explained to you, at least half a dozen times, what their argument actually is.

      Yet, here you are, repeating this straw-man argument as if it were in any way valid. That means either that you are lying in bad faith, or that you are so unbelievably stupid that you can't comprehend basic English sentences. You seem like you have some elementary reading ability, so I assumed you were lying. But if you want to go with the "unbelievably stupid" defense, have at it. (Given your tendency to act like a Speak-N-Spell here, you might actually have a case.)

      I tell you what, Karl, let's go through this one point at a time. You're trying to argue too many different things all at once, and it's just not working.

      I've done nothing throughout this entire conversation but reply to topics that you have brought up. If you want to see who made this thread go all over the place, look in the mirror.

      Pick a point of law that you think I got wrong, and we'll discuss just that one point.

      Pretty much everything you've said on this site has been ruled incorrect in a court of law. It would be more of a chore to hunt down something you've been right about. Still, I agree, brevity is a good thing. So let's go with the one point we've been arguing over for the past couple of comments.

      Congress passes a law, that people are compelled to obey, yet you claim that the law is completely outside of the reach of Constitutional analysis unless the people who obey that law are "magically transformed into state actors." I think you are absolutely wrong - not just mistaken, but saying the complete opposite of every legal authority I've ever read.

      I should point out that this claim is nothing other than a claim that the legislature is summarily immune from Congressional scrutiny. After all, it would require some other state actor (the judiciary, some branch of law enforcement, or a private actor who has been "transformed" into a state actor) to place the law within reach of the Constitution.

      Can you cite even a single ruling that says this is correct? Because every case that either of us has cited disagrees with you.

       

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    Anonymous Coward, Sep 24th, 2013 @ 6:53pm

    At this point, I'm just going to ignore the ad homs.

    At least when I think you have something wrong, I don't accuse you of lying in bad faith as you do to me.

    I tell you what, Karl, let's go through this one point at a time. You're trying to argue too many different things all at once, and it's just not working.

    Pick a point of law that you think I got wrong, and we'll discuss just that one point. Work for you?

     

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    LAB (profile), Dec 11th, 2013 @ 9:57am

    A photograph is implicitly copyrighted and use of one needs to have a license. Though petty, I think this enforcement the DMCA seems correct.

     

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      Mike Masnick (profile), Dec 11th, 2013 @ 1:25pm

      Re:

      A photograph is implicitly copyrighted and use of one needs to have a license. Though petty, I think this enforcement the DMCA seems correct.

      You should learn what fair use means. And some of the basics of copyright.

       

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        LAB (profile), Dec 11th, 2013 @ 2:02pm

        Re: Re:

        Wow... To disagree with the statement a photograph is inherently copyrighted seems very odd.... Fair use is a defense to copyright infringement. Her claim, someone is using my copyrighted work on their website without permission or license, take it down (DMCA). Because photos are used without license on the web all the time makes it no less infringement. I won't quote the 4 factor Acuff test for fair use here but make no mistake photos are owned by the photographer. They are very difficult to prove fair use the because the transformative factor is always failed if using the photo exactly as shot.

         

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          Mike Masnick (profile), Dec 11th, 2013 @ 3:11pm

          Re: Re: Re:

          Wow... To disagree with the statement a photograph is inherently copyrighted seems very odd.

          I didn't disagree with that.

          Fair use is a defense to copyright infringement.

          As the Copyright Act actually says "a fair use... is not infringement." It's not a defense to infringement, it's not infringement.

          Her claim, someone is using my copyrighted work on their website without permission or license, take it down (DMCA). Because photos are used without license on the web all the time makes it no less infringement.

          You're arguing something unrelated to the issue at hand.

          The question is whether or not copyright holders need to take into account fair use before issuing a DMCA takedown.

          I won't quote the 4 factor Acuff test for fair use here but make no mistake photos are owned by the photographer.

          What you actually mean is that photographers hold a copyright over the creative elements of their photo. No one has argued otherwise. But holding a copyright over elements of a photo does not give one total control. Hence, fair use.

          Also, it's not the "Acuff" test. It's written into the Copyright Act.

          They are very difficult to prove fair use the because the transformative factor is always failed if using the photo exactly as shot.

          If you knew anything about the 4 factor test you'd know (1) that it's a balancing test, not an absolute test. Failing a single prong does not automatically mean fair use fails. (2) Transformative doesn't just mean not using a photo as shot -- it can and does mean using it for a different *purpose*. If you believe that there's no fair use in the use of photos, well, you need to learn the law a lot better.

          http://en.wikipedia.org/wiki/Bill_Graham_Archives_v._Dorling_Kindersley,_Ltd.

           

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            LAB (profile), Dec 11th, 2013 @ 6:37pm

            Re: Re: Re: Re:

            As the Copyright Act actually says "a fair use... is not infringement." It's not a defense to infringement, it's not infringement.

            Here, the action would be copyright infringement as an affirmative action the defense would be fair use.

            Fair use is defined in
            Campbell v. Acuff-Rose Music, Inc. As this is a Supreme ct case I will defer to it's definition of implementing said fair use of section 107 of the Copyright Act. Yes it is a balancing test.

            I feel no need going through each factor. Suffice to say, I believe the court could find the reproduction of a photograph exactly as it was taken would constitute use without license and not fair use in this context. A fundamental right of copyright is that of reproduction and use of a photograph without any trans-formative process I believe would fail the balancing test. Your "different purpose" is not a prong of the test but rather touches all of the prongs in different ways. If you are suggesting that the reproduction of a photo in a blog is somehow akin to using photos to make a book about the Greatful Dead, I believe those uses are quite dissimilar and the logic faulty. In addition, she is the image in the photo and has rights as to the use of her image and likeness.

            If she believes the use of her image, photo and likeness are being used without permission or license("the creative elements") she has every right to request a DMCA take down. Obviously she did not think it was fair use.


            The issue as to whether as a copyright holder, fair use must be taken into account before requesting a take down notice is the same as
            Lenz v. Universal Music Corp 2008
            and I am quite familiar.

            What I stated was her use of the notice may seem petty but was proper. You stated I needed to learn about copyright law.

            Seeing that I find hers was a valid claim of infringement I feel that fair use was taken into account before asking for the take down. Perhaps hers was not the best case to use in your piece.

            To suggest I stated their is no fair use in the use of photos is incorrect. To suggest transformation of the copyrighted work is not important is untrue. It is often a decisive factor in determining fair use. I have no doubt in my knowledge and application of copyright and trademark law I suggest familiarization with Acuff if you are not already as it is the Supreme Court case defining Fair Use.

             

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