Apr 042016

The following is Section II.B of the comment I submitted in the Copyright Office’s study on the operation of Section 512 of the copyright statute.

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,[1] the DMCA conditions its protection.[2]  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.

Although some courts are now requiring takedown notice senders to consider whether the use of the content in question was fair,[3] there is no real penalty for the sender if they get it wrong or don’t bother.[4]  Instead, service providers are forced to become judge and jury, even though (a) they lack the information needed to properly evaluate copyright infringement claims,[5] (b) the sheer volume of takedowns notices often makes case-by-case evaluation of them impossible, and (c) it can be a bet-the-company decision if the service provider gets it wrong because their “error” may deny them the Safe Harbor and put them on the hook for infringement liability.[6]  Although there is both judicial and statutory recognition that service providers are not in the position to police user-supplied content for infringement,[7] there must also be recognition that they are similarly not in the position to police for invalid takedowns.  Yet they must, lest there be no effective check on these censorship demands.

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,[8] and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful.[9]  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.

[1] 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).

[2] Section 230 immunizes service providers for most instances of potential liability that may arise in user-supplied content.  However it does not generally provide immunity for liability related to infringement of intellectual property.  47 U.S.C. § 230(e)(2).  For situations where the alleged liability is for an infringement of copyright, the DMCA becomes the only statute operating to shield service providers for liability in their users’ content.

[3] Lenz v. Universal, No. 13-16106, 13-16107, slip op. 5-6 (9th Cir. Mar. 17, 2016) (amending 801 F.3d 1126 (9th Cir. 2015)).

[4] See discussion infra Section III.B.

[5] Copyright infringement is, after all, often contextual, and a finding may hinge on the existence of license agreements or analysis of how a work was used, which the service provider will be ill-equipped to properly evaluate.

[6] It can also be financially debilitating to even have to litigate the question of infringement liability.  Note, for instance, the amount of litigation Google had to face as a result of denying Ms. Garcia’s takedown notice to YouTube on the basis of it lacking a valid copyright claim, even just at the preliminary injunction stage.  Google v. Garcia, 786 F.3d 733, 738-9 (9th Cir. 2015).  Also note that Google was ultimately vindicated.  Id. at 747.

[7] 17 U.S.C. 512(m); see UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1024 (9th Cir. 2013) (rejecting plaintiffs’ argument that service provider should have ‘‘taken the initiative to use search and indexing tools to locate and remove from its Web site any other content by the artists identified in .  .  . notices’’); Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 500, 525 (S.D.N.Y. 2013) (‘‘512(m) and attendant case law make clear that service providers are under no affirmative duty to seek out infringement .  .  . [and t]his remains the case even when a service provider has developed technology permitting it to do so.’’).

[8] Mandatory preliminary injunctions are “subject to heightened scrutiny and should not be issued unless the facts and law clearly favor” the request.  Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir. 1993) (citing Anderson v. United States, 612 F. 2d 1112, 1114-15 (9th Cir. 1979) (collecting cites).  See also Marlyn Neutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (“[Mandatory preliminary injunctions] are not granted unless extreme or very serious damage will result and are not issued in doubtful cases.”) (internal quotation marks omitted).

[9] See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (“Any system of prior restraints … [bears] a heavy presumption against its constitutional validity.”).  Where liability lies on the line “between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished,” an “[e]rror in marking that line exacts an extraordinary cost.”  United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000).  “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)See also Google v. Garcia, 786 F.3d 727 (9th  Cir. 2015) (Reinhart, J. dissenting from the en banc decision not to grant rehearing on an emergency basis once the preliminary injunction had been issued, thus causing protected speech to remain censored for 15 months until the en banc decision on the merits finally set it aside.).

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