At Congress’s request the Copyright Office recently initiated several studies looking into how parts of copyright law have been working. In addition to commenting in the studies about Section 1201 of the copyright act and “software-enabled consumer electronics,” I also commented in the study looking into Section 512 — the portion of the copyright statute that creates safe harbors for service providers intermediating others’ content — on behalf of Floor64/The Copia Institute, the parent company of Techdirt.com, which both advises and educates on intermediary issues and, with Techdirt, is an intermediary itself. There is a post on Techdirt about the comment generally, and the entire comment (all 3600+ words…) is downloadable there, but I decided to cross-post each main section of it here as a series of discrete essays, one per day, every day over this coming week.
To get started, here is an edited compilation of the sections that provide an overview of the argument. Sections discussing each aspect of that argument will follow.
We file this comment to drive home the point that for the Internet to be the marketplace of ideas Congress anticipated it being in 1998, and, indeed, sought for it to be, it is integral for these businesses to retain durable and reliable protection from liability arising from user-generated content. Furthermore, as long as Congress is taking the opportunity to study how the existing safe harbor has been functioning, we would flag several areas where it could be made to function better in light of these policy goals as well as areas where it should be changed to make it as protective of speech as the Constitution requires.
With respect to this study [which invited comment via responses to 30 questions], just as history is written by the victors, records are written by those asking the questions. The hazard is that questions tend to presume answers, even when the answers that they elicit may not necessarily be the answers that are most illuminating.
While there is specific input that can be proffered with respect to various parts of the statute, it would not do the inquiry justice to remain focused on statutory minutiae. The DMCA is ostensibly designed to confront a specific policy problem. It is fair, reasonable, and indeed necessary to ensure that this problem is well-defined and well-understood before determining whether, and to what extent, the DMCA is an appropriate or appropriately calibrated solution to it.
Ultimately, however, 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.
Issues pertinent to all responses to the asked questions
Section II.A – Congress protected intermediaries for a reason
Section II.B – The DMCA functions as a system of extra-judicial censorship
Section II.C – The assumptions of economic harm underpinning the DMCA must be carefully examined
Comments arising from specific questions
Section III.A – On the general effectiveness of the Safe Harbors
Section III.B – Issues with the notice-and-takedown process
Section III.C – First Amendment issues with counter-notifications and repeat infringer policies (and more)