Our Comment On DMCA Takedowns: Let's Return To First Principles (And The First Amendment)

from the what's-working-and-what's-not dept

As mentioned earlier, today's the day to file comments with the Copyright Office over the DMCA's notice and takedown provisions. We've already discussed the recent set of studies showing that there are way too many bogus takedown notices that are clogging the system, creating real problems for small service providers and censoring free speech. We also wrote about the patently ridiculous filing by the legacy players in the music industry, who whined about how the public is enjoying more content than ever before (which, you know, is the stated purpose of copyright law), but they're upset that their business models are now obsolete. Finally, we wrote about the fantastic filing from Automattic, which gives many more real world examples of how the takedown process is abused (which the legacy industry pretends isn't true, because people don't file counternotices).

And now, here's our own comment, prepared by our excellent attorney (and sometimes guest poster), Cathy Gellis. In this filing, we decided to focus on taking a step back and going to first principles about the intent of copyright law itself, as well as the official and stated intent of the DMCA -- and to look at where things seem to be working and where they are not. As the filing notes, Congress made it clear with both the DMCA 512 safe harbors and the CDA Section 230 immunity provisions that it intends to support a vibrant internet where the public is free to share its views. And we see no reason why Congress should back away from that.

But, of course, there are problems, and the big one is widespread censorship enabled by the notice-and-takedown provision:
Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA's potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content, the DMCA conditions its protection. And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.

In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.


Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user's speech predicated on mere allegation. Mandatory injunctions are disfavored generally, and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful. To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.
We also highlight examples of innovative platforms and services driven out of business due to bogus DMCA claims, and how that appears to go against the purpose of copyright as well:
Veoh was a video hosting service akin to YouTube that was found to be eligible for the DMCA safe harbor. Unfortunately this finding was reached after years of litigation had already driven the company into bankruptcy and forced it to layoff its staff. Meanwhile SeeqPod was a search engine that helped people (including potential consumers) find multimedia content out on the Internet, but it, too, was also driven into bankruptcy by litigation, taking with it an important tool to help people discover creative works.

History is littered with examples like the ones above of innovative new businesses being driven out of existence, their innovation and investment chilled, by litigation completely untethered from the principles underpinning copyright law. Copyright law exists solely to "promote the progress of science and the useful arts." Yet all too frequently it has had the exact opposite effect.

The DMCA has the potential to be a crucial equalizer, but it can only do so when the economic value of what these service providers deliver is considered by policymakers with at least as much weight as that given to the incumbent interests who complain that their previous business models may have become unworkable in light of digital technology. Service providers are economic engines employing innumerable people, directly and indirectly, and driving innovation forward while they deliver a world of information to each and every Internet user. We know economic harm is done to them and to anyone, creators and consumers, who would have benefited from their services when they are not protected.
And along those lines, our comment also points out that the legacy players have a fairly long history of crying wolf over problems that aren't really problems:
But what needs careful scrutiny and testing are economic arguments predicated on the assumption that every digital copy of every copyrighted work transmitted online without the explicit permission of a copyright holder represents a financial loss. This is a presumption that needs careful scrutiny, with reviewable data and auditable methodology. It is quite a leap to assume that every instance (or even most instances) of people consuming "pirated" copyrighted works is an instance they would otherwise have paid the creator. For example, it tends to presume that people have unlimited amounts of money to spend on unlimited numbers of copyrighted works, and it also ignores the fact that some works may only be consumable at a price point of $0, which is something that institutions like libraries and over-the-air radio have long enabled, to the betterment of creators and the public beneficiaries of creative works alike. Furthermore, even in instances when people would be willing to pay for access to a work, copyright owners may not be offering it at any price, nor are they necessarily equitably sharing the revenues derived from creative works with the actual creators whose efforts require the remuneration.

The DMCA does not adjust to reflect situations like these, nor does it incentivize copyright holders to correct their own self-induced market failures. On the contrary; it allows them to deprive the public of access to their works and to threaten the service providers enabling their access with extinction if they do not assist in disabling this access. None of these outcomes are consistent with the goals and purpose of copyright in general, and care must be taken not to allow the DMCA be a law that ensures them.
There's a lot more in the filing, including us questioning how merely linking to materials could or should be considered infringing, worries about how the DMCA can be abused to identify previously anonymous speakers and concerns about "repeat infringer" policy requirements that based on accusations rather than actual proof of infringement. You can read the whole thing at the link above or embedded below. And I'll just post the conclusion here as well:
Ultimately it is not possible to have a valid copyright law that in any part is inconsistent with the Progress Clause or First Amendment. To the extent that the DMCA protects intermediaries and with them the speech they foster it is consistent with both of these constitutional precepts and limitations. To the extent, however, that that DMCA suborns due process or otherwise compromises the First Amendment rights of either Internet users or service providers themselves to use and develop forums for information exchange on the Internet it is not. The statutory infirmities that have been leading to the latter outcome should therefore be corrected to make the DMCA’s protections on intermediaries and the speech they foster as durable as this important policy interest requires.

Filed Under: abuse, censorship, copyright, dmca, dmca 512, first amendment, free speech, notice and takedown

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  1. icon
    Whatever (profile), 3 Apr 2016 @ 10:20pm

    Re: Re: Re: Re: Thread 609

    "The DMCA safe harbors protect service providers. Nothing in the DMCA gives any more protection to users who upload infringing content. If you upload infringing content, it doesn't matter if it's removed or not, you can still be sued if the copyright holder chooses to do so."

    Technically correct, realistically not correct, for a bunch of reasons.

    First and foremost, if you follow the DMCA and remove the content, the infringement is stopped. At that moment, the very basis of a copyright infringement lawsuits has shrunk considerably, the "harm" has stopped and thus any lawsuit is based solely on the harm done before the DMCA notice. It makes the case much harder to make.

    Second, you would also have to show that the site owner was in fact the one that posted the content. Many sites use "user contributed" content, which means that the site owner also plays the ISP card as a sort of get out of jail free card. They can then point to an anonymous contributor with an IP address that points to a TOR exit, and entirely escape liability.

    Third, even if they did post the content in question, a rights holder would have to prove that use in a court of law, and show actual harm. The costs related to doing so past the costs of a DMCA notice are such that few rights holders are willing to take anyone to court. The length of time to prove the case and the endless appeals that would follow are longer than most are interested in, and obtaining what amounts to an unenforceable judgement (defendant too poor, shell company, etc) makes it all but useless to do.

    "In order to send a counter-notice, you have to agree to be sued in the U.S. It's in 512(g)(3)(D):"

    Sort of normal. It's US law, and generally the notices are sent by US companies or sent to US addresses.

    Of course, there is no obligation to send a counter notice. You can remove the content and call it even. The chances of anyone bothering to sue you are all but nil (see above). The numbers of "website content" copyright lawsuits are so small, that you have way more chance of being hit by lightning and the Queen's motorcade at the same time.

    "So, why aren't users getting sued left and right?"

    Your answers are technically correct, but the reality is that with if you follow the DMCA and remove the content when notified, there is little incentive for a rights holder to take you to court because the harm has stopped.

    Now, all of your comments are meaningless in internet reality, because almost all infringement is done ANONYMOUSLY. Youtube, instagram, and so on accounts that all point anonymous email accounts. The net effect is that end users can post infringing content with impunity, and the service providers don't bear any responsibility beyond just deleting the content (after they have made traffic and income from it). As a result, we have sites like YouTube packed full of copyright material, with hundreds of hours more uploaded every day, and no real way for rights holders to keep up.

    "So, if the DMCA didn't exist, I doubt we'd see any more lawsuits against users than we do now. We'd only see a lot more lawsuits against service providers."

    Incorrect. Without DMCA, service providers would not accept anonymous postings, and if sued, they would quickly give up the user information and involve them in any lawsuit. "Anonymous User sourced content" would not be a valid business model, and with end users properly identified, it's very likely that infringement would drop dramatically because few would want to take the risks.

    I could also see where true service providers (naked hosting companies, not site owners such as youtube) could be classed similar to phone companies, and be able to avoid lawsuits by being transparent and helpful when it comes to identifying their customers.

    Really, DMCA just encourages "anonymous" infringing and business models predicated on it. It's hard to deny reality!

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