Yet Another Case Highlights Yet Another Constitutional Infirmity With The DMCA

from the saying-yes-to-censorship-and-no-to-states'-rights dept

Once again, the Constitutional exceptionalism of the DMCA has reared its ugly head. Thanks to the way it has been interpreted we have already enabled it to become an unchecked system of prior restraint, which is anathema to the First Amendment. And now yet another court has allowed this federal law to supersede states' ability to right the wrongs that misuse of the DMCA's censorship tools inevitably causes, even though doing so arguably gives this federal law more power than the Constitution allows.

The two problems are of course related. Prior restraint is what happens when speech is censored without ever having being adjudicated to be wrongful. That's what a takedown demand system does: force the removal of speech first, and sort out whether that was the right result later. But because the Ninth Circuit has taken the teeth out of the part of the DMCA that is supposed to punish bogus takedowns, that second part very rarely happens. Section 512(f) was supposed to provide a remedy for those who have been harmed by their content being removed. But in the wake of key rulings, most recently Lenz v. Universal, that remedy is rarely available, leaving online speakers everywhere vulnerable to the censoring whims of anyone inclined to send a takedown demand targeting their speech, no matter how unjustifiably, since there is little ability to ever hold this wrongdoer liable for the harm their censorship causes.

And censorship does cause harm. Sometimes the harm that it causes can even be to one's business or livelihood, which can suffer from the interruption of the removed content's availability. Of course, normally when people have had their business or livelihoods messed with, they can sue whomever messed with them. We have lots of laws that address wrongful meddling, including torts like intentional interference with contract or prospective economic advantage, because normally we don't like people having free reign to mess with other people's business.

But most of those tort claims are creatures of state law, and the DMCA is federal law. And the question that was raised by a recent case, Stevens v. Vodka & Milk, LLC, is how state law and federal law interrelate. Per the court: they don't. According to the Southern District of New York court, federal law completely pre-empts state law, leaving the only recourse available for someone who has been hurt by wrongful DMCA takedown notices Section 512(f), the remedy that the DMCA ostensibly enables. Even though that remedy is utterly useless.

Sadly, this court was not the first to reach this conclusion. But that fact does not make the conclusion any less terrible, or any less questionable. It's predicated on the notion of "field pre-emption," "where Congress occupies an entire field." In this case, Congress is the exclusive authority establishing copyright, and so federal law pre-empts state laws on copyright. This pre-emption makes sense, because state law addressing copyright would likely interfere with the federal policy. Yet that's not what these state laws are doing. They aren't trying to establish copyrights or address their scope; they are attempting to speak to what happens in situations where a harm has resulted and no copyright was involved at all.

The court essentially ignores this distinction, asserting that because the DMCA addresses what happens when takedown notices are sent without there being a valid copyright claim, it is the final word on remediating the harm the wrongful takedown notices caused. But this reasoning doesn't make sense.

First, the Constitution narrowly prescribes what federal law can do. It can, for instance, create copyrights (pursuant to the Progress Clause), but it doesn't follow that federal law can necessarily operate, much less exclusively operate, where there is no copyright present. Without that copyright there may be no constitutional basis for that federal law to operate at all. But if the court were right, that once the DMCA is merely cited as a basis for a censorship demand, even if invalidly, it is the only law that can address the resulting harm, then that's what the federal law would be doing: operating in a domain where it may no longer have any constitutional entitlement to act. Particularly given that people aren't even supposed to be able to engage the DMCA without that federally-created copyright in the first place, it really doesn't make sense that the DMCA can remain engaged, trumping state law, when it wasn't supposed to be engaged in the first place.

Granted, it might make sense for the DMCA to pre-empt state law when the takedown notice sender has a valid copyright but nonetheless has sent wrongful takedown notices where the targeted use was fair. If state law could punish those takedown notices, it might interfere with the parameters of that federally-created copyright and encroach the "field" of copyright law left exclusively to federal law. But in the absence of a valid copyright, federal law should not be able to extinguish a state-based claim that has nothing to do with the contours of a right that isn't even present.

And the reason federal law should be so limited is because of the abuse we see, where anyone can get away with tortious behavior simply by fraudulently claiming a fictional federal right. A takedown notice sent by someone without a valid copyright is not any more about the "field" of copyright than it is about Santa Claus. Rather, it's about tortiously wrongful behavior. And vindicating injuries caused by such behavior is not something that federal law generally gets to do. That is a power generally left to the states, and the Constitution should not permit a bad actor to escape state law designed to punish this sort of behavior simply because he's fraudulently packaged up his bad acts with a meaningless copyright label federal law does not allow him to use.


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  • identicon
    Anonymous Coward, 4 Apr 2018 @ 11:41am

    are there actually any judges who know the law and how it should be applied in various circumstances? it seems to me that every judge, although able to interpret in their own way, should be limited in the scope of 'their own way' and only allowed to go to a certain marker. if this sort of thing is always allowed to happen, what the hell is the point of having any law at all?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Apr 2018 @ 11:56am

      Re:

      If it could be sufficiently limited as you say, we wouldn't need judges. And resolving bad/stupid decisions is why there are appeals courts.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Apr 2018 @ 12:02pm

      Re:

      … every judge, although able to interpret in their own way, should be limited in the scope of 'their own way'…

      Perhaps you overlooked where Cathy wrote:

      Sadly, this court was not the first to reach this conclusion.

      In Eric Goldman's writeup on this particular case a week ago, he linked back to his post from 2011, which discusses another court's treatment of a similar claim.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Apr 2018 @ 1:29pm

    Statutory Text

    While Judge Rakoff discusses 17 USC §301(a) on p.7, I don't see any discussion of §301(b)

    Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to—

          (1) …

          (2)…

          (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106; or

          (4) …

    The liability imposed by §512(f) is simply “not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106”.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Apr 2018 @ 11:25am

      Re: Statutory Text

      While Judge Rakoff discusses 17 USC §301(a) on p.7…

      Capitol Records v Vimeo (2nd Cir. 2016), in note 7—

      … The most reasonable reading of § 301(c) is that "this title" refers to Title 17 as it was constituted in 1998, at the time § 301(c) was most recently amended. To read it as placing a limitation on future amendments and additions to Title 17 would mean that Congress was purporting to bind itself for decades, no matter what circumstances would later materialize — such as the arrival of the Internet. "[S]tatutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified." [Citation]. The more natural reading of § 301(c), then, is that it governed the implementation of Title 17 as it stood in 1998.

      Judge Rakoff cites this case on p.3 of his opinion (although not specifically note 7).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Apr 2018 @ 1:40pm

    Fuck the Constitution...

    When it gets in the way of me fucking others over!

    ~Everyone

    reply to this | link to this | view in chronology ]

  • icon
    Mitch Stoltz (profile), 4 Apr 2018 @ 2:25pm

    Wait a minute...

    Selling a printed book through a website probably isn't covered under any of the DMCA safe harbors, and the safe harbors don't replace the application of traditional secondary liability. So the DMCA doesn't even seem relevant here. I hope this gets appealed.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Apr 2018 @ 4:24pm

      Re: Wait a minute...

      So the DMCA doesn't even seem relevant here.

      On p.3 of the decision, Judge Rakoff writes—

       . . .  See 17 U.S.C. § 512 (c) (1) (C). It is undisputed that the notices Stevens sent to online retailers were takedown notices pursuant to this Section of the DMCA.

      While Judge Rakoff doesn't provide a citation for these parties' “undisputed” assertions, the argument in this case doesn't seem to be similar to Rock River v Universal (C.D.Cal. 2007) where—

      Defendants contend that Universal's "communications" with Apple were not "under" § 512 because the safe harbor scheme of § 512 does not apply to iTunes on the undisputed facts of the case.

      If the parties in this case have both agreed that the DMCA governs the notices, then I suspect your argument may be offered too late.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Apr 2018 @ 3:11pm

    Lenz v Universal

    While Cathy links to a previous Techdirt article covering one aspect of Lenz v Universal, on p.5 of the decision discussed here, Judge Rakoff cites the N.D. Cal. Apr. 8, 2008 order granting defendants' motion to dismiss.

     


    ( Subsequently in Lenz, as Judge Fogel relates on p.3 of this N.D.Cal. Aug. 20, 2008 order

     . . . Lenz was given leave to amend her complaint to replead her first and second claims for relief. On April 18, 2008, Lenz filed the operative SAC, alleging only a claim for misrepresentation pursuant to 17 U.S.C. § 512(f).

    Perhaps some here might possibly recall this exact history purely from memory. My memory isn't quite that good these days. )

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 4 Apr 2018 @ 11:03pm

    But because the Ninth Circuit has taken the teeth out of the part of the DMCA that is supposed to punish bogus takedowns, that second part very rarely happens.

    Let a normal person file some bogus takedown complaints for content owned by the Holy Church of Copyright and see how toothless it is when a powerful organization is on the receiving end of the complaint.

    reply to this | link to this | view in chronology ]


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