Author Topic: Why The DMCA Is An Unconstitutional Restriction On Free Speech  (Read 7039 times)

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Offline Optimus

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Why The DMCA Is An Unconstitutional Restriction On Free Speech
http://www.techdirt.com/articles/20100402/1856128861.shtml
from the notice-and-takedown-this dept

Many legal scholars have discussed the fact that copyright law and the First Amendment are, by their very natures, in conflict. Historically, the Supreme Court has gotten around this conflict by saying that things like fair use and the idea/expression dichotomy help keep things balanced -- though many have questioned whether the massive expansion of copyright law over the last century should have changed that analysis. In the Eldred case, the Supreme Court mostly rejected the argument that copyright extension was a violation of free speech, though many legal scholars find that decision a bit of a head scratcher (if you want a great analysis of why that decision makes no sense under the law, the book No Law is a worthwhile read).

But there are still other areas where changes to copyright law may be vulnerable under a First Amendment analysis. So far, the only court case (and it's still at a low level) that has been successful in attacking the copyright on these grounds is the Golan case, which focuses on a very narrow part of copyright law.

However, it looks like some people are finally looking at some hugely questionable parts of copyright law that seem in direct conflict with case law concerning the First Amendment. Copycense points us to a fantastic recent paper from law professor Wendy Seltzer discussing how the DMCA's notice-and-takedown policy appear to violate the First Amendment:

    Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

    If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

    This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.


I'm sure that our usual copyright system defenders will pop up quickly in the comments to dismiss this as ridiculous, but it's a really strong point. 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. It does make you wonder if a compelling First Amendment case could be made around this particular issue.
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it's an instrument for the people to restrain the government.” – Patrick Henry

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Offline donnay

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Re: Why The DMCA Is An Unconstitutional Restriction On Free Speech
« Reply #1 on: August 24, 2010, 02:24:43 pm »
Great article!!!
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Offline Satyagraha

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Re: Why The DMCA Is An Unconstitutional Restriction On Free Speech
« Reply #2 on: August 24, 2010, 02:51:49 pm »
... law professor Wendy Seltzer discussing how the DMCA's notice-and-takedown policy appear to violate the First Amendment:

    Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

    If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

    This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.



So the 'take down first, check legality later' is a great tactic, given the expense of litigation in support of the constitution. What a sad state of affairs; this is an issue that should be taken up by everyone who wants to retain our first amendment rights.
And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

EvadingGrid

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Re: Why The DMCA Is An Unconstitutional Restriction On Free Speech
« Reply #3 on: August 24, 2010, 02:53:11 pm »
So the 'take down first, check legality later' is a great tactic, given the expense of litigation in support of the constitution. What a sad state of affairs; this is an issue that should be taken up by everyone who wants to retain our first amendment rights.


* cat  nods in agreement

Strange how it is selectively enforced.

Offline Optimus

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Re: Why The DMCA Is An Unconstitutional Restriction On Free Speech
« Reply #4 on: August 24, 2010, 03:01:37 pm »
* cat  nods in agreement

Strange how it is selectively enforced.


Guilty until proven innocent type of mentality.
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Offline Kilika

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Re: Why The DMCA Is An Unconstitutional Restriction On Free Speech
« Reply #5 on: August 24, 2010, 03:07:19 pm »
Not so strange really, my furry friend. Kind of expected actually, as the love of money is what motivates them. The "costs less" angle is a great point. That's politicians doing business a favor by getting this kind of law passed. They literally want to corner their own little markets by saying it's theirs only and no one else can use it, but for a fee... ::)
"For the love of money is the root of all evil: which while some coveted after, they have erred from the faith, and pierced themselves through with many sorrows."
1 Timothy 6:10 (KJB)

Offline donnay

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Re: Why The DMCA Is An Unconstitutional Restriction On Free Speech
« Reply #6 on: August 24, 2010, 05:32:21 pm »
We post these articles, we give credit to the authors, and yet we are scrutinized for posting them in it's entirety.  ::)

We are seeking to find the truth and by posting these articles, in it's entirety, when they get tossed down the memory hole, we can still view them here, and have proof that inconsistencies and irregularities were being reported.

Joe Biden, Barak Obama and John McCain can plagiarize and that's okay.

Of course rules like this are selectively enforced!
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