The Copyright Office’s study concerning Section 512 of the DMCA (the notice-and-takedown/safe harbors part of the law) had its second comment period end this week — which is why you’re seeing stories about how the RIAA is suddenly talking about piracy filters and notice-and-staydown. Via our think tank arm, the Copia Institute we filed our own comments, pointing out the already problematic First Amendment issues with the way the current notice-and-takedown system works. Remember, there’s a very high standard set by the Supreme Court before you can take down expressive content. But the notice-and-takedown system ignores all of that:
Because this takedown system functions as a system of extra-judicial injunctions it is critical that the speech they target have at least as much protection as speech targeted by any request for injunctive relief. Ordinarily someone seeking to enjoin speech would need to properly plead and then prove that the targeted speech was indeed actionable. Under present practice, however, senders of takedown notices have not needed to overcome these sorts of hurdles prior to effecting the removal of targeted content via their takedown demands.
A significant reason takedown notice senders have been able to evade these constitutional requirements is because there is no effective consequence for sending non-meritorious takedown demands.
Unfortunately, the likes of the RIAA and others are pushing to make the system even worse, and we point out to the Copyright Office how that would exacerbate the First Amendment issues from the DMCA:
Under no circumstance should the Copyright Office advocate for exacerbating any of the consequences to speech that the DMCA already inflicts. For instance, any proposal to increase the power of a takedown notice, such as by turning it into a permanent injunction through “takedown-and-staydown” proposed by Question #12, would only increase the severity of the Constitutional injury the DMCA inflicts, as would requiring any additional delay in restoring content after receiving a counter-notice, as proposed by Question #5. If the Copyright Office is to do anything it should only be to encourage alleviation of the incursions on free speech that these unchecked takedown notices allow.
In our comment, we also note our concerns about some of the recent court decisions that seem to expand the DMCA in very dangerous ways that could also have serious free speech implications:
… those recent cases have also suggested that these takedown notices effectively start a clock on the intermediary, where once it learns too much about a user’s predilection for potentially infringing activities it must act to remove that user’s access to its systems entirely.
These cases are troublesome for several reasons, not the least of which being that, like jurisprudence relating to Section 512(f), they also infer a statutory requirement not actually in the statute. Section 512(i) only says that an intermediary must have a policy for terminating repeat infringers; it is otherwise silent as to what that policy should be, and post-hoc decisions by a court threaten to make safe harbor protection illusory, given that a platform can never be sure if it has complied with the statute or not.
They are also troublesome because they give the takedown demand a sort of power that such demands would never have outside of the DMCA. As discussed above, and in prior comments and proceedings, infringement allegations can often be false (or even merely mistaken), which is why injunctions are not granted without due process. Due process allows the allegations to be tested, so that only the meritorious accusations can result in any penalty. Allowing a penalty for unproven allegations, particularly with respect to speech, amounts to prior restraint, which is itself anathema to the First Amendment. A penalty that censors speech is bad enough, but a penalty that censors speakers altogether raises the constitutional injury to a whole other level. We have already seen malevolent actors abuse takedown notices to try to suppress criticism. We should not also be handing them the power to use takedown notices to suppress critics’ ability to speak out at all.
It’s unfortunate that there has been little to no review at all of the First Amendment implications of the DMCA. And, no, we’re not saying that infringement is free speech (heading off the comment that we’re sure someone is already itching to make below). But we are saying that any system that removes expression has to take into account the First Amendment. But the DMCA doesn’t discriminate and is regularly used to take down content that is clearly not infringing, as well as lots of content where it’s not truly determined if it is actually infringing.
And without that analysis exploring the First Amendment implications, we now have the RIAA, MPAA and their friends trying to make the powers to censor even stronger, which is quite ridiculous coming from two organizations that often highlight their commitment to the First Amendment.