Apr 082016

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

Questions #16 and #17 more specifically contemplate the effectiveness of the put-back process articulated at subsection 512(g).  As explained in Section III.B this mechanism is not effective for restoring wrongfully removed content and is little used.  But it is worth taking a moment here to further explore the First Amendment harms wrought to both Internet users and service providers by the DMCA.[1]

It is part and parcel of First Amendment doctrine that people are permitted to speak, and to speak anonymously.[2]  Although that anonymity can be stripped in certain circumstances, there is nothing about the allegation of copyright infringement that should cause it to be stripped automatically.  Particularly in light of copyright law incorporating free speech principles[3] this anonymity cannot be more fragile than it would in any other circumstance where speech was subject to legal challenge.  The temptation to characterize all alleged infringers as malevolent pirates who get what they deserve must be resisted; the DMCA targets all speakers and all speech, no matter how fair or necessary to public discourse this speech is.

And yet, with the DMCA, not only is speech itself more vulnerable to censorship via copyright infringement claim than it would be for other types of allegations[4] but so are the necessary protections speakers depend on to be able to speak.[5]  Between the self-identification requirements of subsection 512(g) put-back notices and the ease of demanding user information with subsection 512(h) subpoenas that also do not need to be predicated on actual lawsuits,[6] Internet speakers on the whole must fear the loss of their privacy if anyone dares to construe an infringement claim, no matter how illegitimate or untested that claim may be.  Given the ease of concocting an invalid infringement claim,[7] and the lack of any incentive not to,[8] the DMCA gives all-too-ready access to the identities of Internet users to the people least deserving of it and at the expense of those who most need it.[9]

Furthermore, the DMCA also compromises service providers’ own First Amendment interests in developing the forums and communities they would so choose.  The very design of the DMCA puts service providers at odds with their users, forcing them to be antagonistic their own customers and their own business interests as a condition for protecting those interests.  Attempts to protect their forums or their users can expose them to tremendous costs and potentially incalculable risk, and all of this harm flows from mere allegation that never need be tested in a court of law.  The DMCA forces service providers to enforce censorship compelled by a mere takedown notice, compromise user privacy in response to subsection 512(h) subpoenas (or devote significant resources to trying to quash them), and, vis a vis Questions #22 and 23, disconnect users according to termination policies whose sufficiency cannot be known until a court decides they are not.[10]

The repeat infringer policy requirement of subsection 512(i)(A) exemplifies the statutory problem with many of the DMCA’s safe harbor requirements.  A repeat infringer policy might only barely begin to be legitimate if it applied to the disconnection of a user after a certain number of judicial findings of liability for acts of infringement that users had used the service provider to commit.  But as at least one service provider lost its safe harbor for not permanently disconnecting users after only a certain number of allegations, even though they were allegations that had never been tested in a court consistent with the principles of due process or prohibition on prior restraint.[11]

In no other context would we find these sorts of government incursions against the rights of speakers constitutional, robbing them of their speech, anonymity, and the opportunity to further speak, without adequate due process.  These incursions do not suddenly become constitutionally sound just because the DMCA coerces service providers to be the agent committing these acts instead.

[1] See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet].”).

[2] See McIntyre v. Ohio Elections Com’n, 514 U.S. 334, 341-42 (1995) (“[A]n author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”).

[3] See Golan v. Holder, 132 S. Ct. 873, 890 (2012).

[4] See discussion supra Section II.B.

[5] See McIntyre, 514 U.S. at 341-42 (1995) (“The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”).

[6] Compare Fed. R. Civ. P. 45(a)(1)(A)(ii) (“Every subpoena must … state the title of the action and its civil-action number.”), with 17 U.S.C. § 512(h) (lacking any similar requirement or other mention that the subpoena be predicated on a commenced civil action).  Note that many jurisdictions explicitly forbid pre-litigation discovery.  See, e.g., Cal. Code of Civ. Proc. 2035.010(b) (“One shall not employ the procedures of this chapter for the purpose … of identifying those who might be made parties to an action not yet filed.”).  Many jurisdictions further require careful testing of a plaintiff’s claims before stripping Internet speakers of their anonymity.  See, e.g., Krinsky v. Doe, 72 Cal.Rptr.3d 231, 241-246 (discussing standards for determining whether a plaintiff can be allowed to unmask an anonymous speaker).

[7] See discussion supra Section II.B.

[8] See discussion supra Section III.B.

[9] The abusive practices of many extortionate copyright plaintiffs illustrate why judicial oversight is required before Internet users are forced to be stripped of their privacy protection.  See, e.g., AF Holdings, LLC v. Does 1-1058, 752 F. 3d 990, 992 (D.C. Cir. 2014) (describing the affairs of copyright plaintiffs who built a business on demanding money from people they discovered via subpoenas to pay settlements to avoid litigation, despite the putative plaintiffs not having a valid copyright to sue upon).

[10] See, e.g., BMG Rights Management (US) LLC v. Cox Communications, Civil No. 1:14-cv-1611, slip op (E.D. Va. Dec. 1, 2015).

[11] Id.  The court in this case also required the service provider to terminate users regardless of the impact on the user if they were forced to exist in the modern world without broadband internet connectivity.  To the extent that this holding was drawn from a fair reading of the statute, while perhaps in the 20th Century the consequences of losing Internet access were negligible, in the 21st Century we know they are not.  There may not be many other options for broadband access available to terminated users, and the cumbersome nature of the DMCA combined with expansive theories of secondary liability do little to encourage investment by new market entrants.

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