May 262017
 

The following was cross-posted on Techdirt.

We often talk about how protecting online speech requires protecting platforms, like with Section 230 immunity and the safe harbors of the DMCA. But these statutory shields are not the only way law needs to protect platforms in order to make sure the speech they carry is also protected.

Earlier this month, I helped Techdirt’s think tank arm, the Copia Institute, file an amicus brief in support of Yelp in a case called Montagna v. Nunis. Like many platforms, Yelp lets people post content anonymously. Often people are only willing to speak when they can do so without revealing who they are (note how many people participate in the comments here without revealing their real names), which is why the right to speak anonymously has been found to be part and parcel of the First Amendment right of free speech . It’s also why sites like Yelp let users post anonymously, because often that’s the only way they will feel comfortable posting reviews candid enough to be useful to those who depend on sites like Yelp to help them make informed decisions.

But as we also see, people who don’t like the things said about them often try to attack their critics, and one way they do this is by trying to strip these speakers of their anonymity. True, sometimes online speech can cross the line and actually be defamatory, in which case being able to discover the identity of the speaker is important. This case in no way prevents legitimately aggrieved plaintiffs from using subpoenas to discover the identity of those whose unlawful speech has injured them to sue them for relief. Unfortunately, however, it is not just people with legitimate claims who are sending subpoenas; in many instances they are being sent by people objecting to speech that is perfectly legal, and that’s a problem. Unmasking the speakers behind protected speech not only violates their First Amendment rights to speak anonymously but it also chills the speech the First Amendment is designed to foster generally by making the critical anonymity protection that plenty of legal speech depends on suddenly illusory.

There is a lot that can and should be done to close off this vector of attack on free speech. One important measure is to make sure platforms are able to resist the subpoenas they get demanding they turn over whatever identifying information they have. There are practical reasons why they can’t always fight them — for instance, like DMCA takedown notices, they may simply get too many — but it is generally in their interest to try to resist illegitimate subpoenas targeting the protected speech posted anonymously on their platforms so that their users will not be scared away from speaking on their sites.

But when Yelp tried to resist the subpoena connected with this case, the court refused to let them stand in to defend the user’s speech interest. Worse, it sanctioned(!) Yelp for even trying, thus making platforms’ efforts to stand up for their users even more risky and expensive than they already are.

So Yelp appealed, and we filed an amicus brief supporting their effort. Fortunately, earlier this year Glassdoor won an important California State appellate ruling that validated attempts by platforms to quash subpoenas on behalf of their users. That decision discussed why the First Amendment and California State Constitution required platforms to have this ability to quash subpoenas targeting protected speech, and hopefully this particular appeals court will agree with its sister court and make clear that platforms are allowed to fight off subpoenas like this. As we pointed out in our brief, both state and federal law and policy require online speech to be protected, and preventing platforms from resisting subpoenas is out of step with those stated policy goals and constitutional requirements.

Dec 172016
 

The following was recently published on Techdirt, although with a different title.

Regardless of what one thinks about the apparent result of the 2016 election, it will inevitably present a number of challenges for America and the world. As Mike wrote about last week, they will inevitably touch on many of the tech policy issues often discussed here. The following is a closer look at some of the implications (and opportunities) with respect to several of them, given the unique hallmarks of Trump and his proposed administration. Continue reading »

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.
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Apr 072016
 

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

Question #12 asks if the notice-and-takedown process sufficiently protects against fraudulent, abusive, or unfounded notices and what should be done to address this concern.  Invalid takedown notices are most certainly a problem,[1] and the reason is that the system causes them to be a problem.  As discussed in Section II.B the notice-and-takedown regime is inherently a censorship regime, and it can be a very successful censorship regime because takedown notice senders can simply point to content they want removed and use the threat of liability as the gun to the service provider’s head to force it to remove it, lest the service provider risk its safe harbor protection.

Thanks to courts under-enforcing subsection 512(f) they can do this without fear of judicial oversight.[2]  But it isn’t just the lax subsection 512(f) standard that allows abusive notices to be sent without fear of accountability.  Even though the DMCA includes put-back provisions at subsection 512(g) we see relatively few instances of it being used.[3]  The DMCA is a complicated statute and the average non-lawyer may not know these provisions exist or be able to know how to use them.  Furthermore, trying to use them puts users in the crosshairs of the party gunning for their content (and, potentially, them as people) by forcing them to give up their right to anonymous speech in order to keep that speech from being censored.  All of these complications are significant deterrents to users being able to effectively defend their own content, content that would have already been censored (these measures would only allow the content to be restored, after the censorship damage has already been done).[4]  Ultimately there are no real checks on abusive takedown notices apart from what the service provider is willing and able to risk reviewing and rejecting.[5]  Given the enormity of this risk, however, it cannot remain the sole stopgap measure to keep this illegitimate censorship from happening.

Continuing on, Question #13 asks whether subsection 512(d), addressing “information location tools,” has been a useful mechanism to address infringement “that occurs as a result of a service provider’s referring or linking to infringing content.”  Purely as a matter of logic the answer cannot possibly be yes: simply linking to content has absolutely no bearing on whether content is or is not infringing.  The entire notion that there could be liability on a service provider for simply knowing where information resides stretches U.S. copyright law beyond recognition.  That sort of knowledge, and the sharing of that knowledge, should never be illegal, particularly in light of the Progress Clause, upon which the copyright law is predicated and authorized, and particularly when the mere act of sharing that knowledge in no way itself directly implicates any exclusive right held by a copyright holder in that content.[6]  Subsection 512(d) exists entirely as a means and mode of censorship, once again blackmailing service providers into the forced forgetting of information they once knew, and irrespective of whether the content they are being forced to forget is ultimately infringing or not.  As discussed above in Section II.B above, there is no way for the service provider to definitively know.
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Comments on DMCA Section 512: The DMCA functions as a system of extra-judicial censorship

 Analysis/commentary, Intermediary liability, Regulating speech  Comments Off on Comments on DMCA Section 512: The DMCA functions as a system of extra-judicial censorship
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.
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Comments on DMCA Section 512: Overview and conclusion

 Analysis/commentary, Intermediary liability, Regulating speech  Comments Off on Comments on DMCA Section 512: Overview and conclusion
Apr 022016
 

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.
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New Decision In Dancing Baby DMCA Takedown Case — And Everything Is Still A Mess (cross-post)

 Analysis/commentary, Intermediary liability, Regulating speech  Comments Off on New Decision In Dancing Baby DMCA Takedown Case — And Everything Is Still A Mess (cross-post)
Mar 202016
 

The following originally appeared on Techdirt.

I got very excited yesterday when I saw a court system alert that there was a new decision out in the appeal of Lenz v. Universal. This was the Dancing Baby case where a toddler rocking out to a Prince song was seen as such an affront to Prince’s exclusive rights in his songs that his agent Universal Music felt it necessary to send a DMCA takedown notice to YouTube to have the video removed. Heaven forbid people share videos of their babies dancing to unlicensed music.

Of course, they shouldn’t need licenses, because videos like this one clearly make fair use of the music at issue. So Stephanie Lenz, whose video this was, through her lawyers at the EFF, sued Universal under Section 512(f) of the DMCA for having wrongfully caused her video to be taken down.

Last year, the Ninth Circuit heard the case on appeal and then in September issued a decision that generally pleased no one. Both Universal and Lenz petitioned for the Ninth Circuit to reconsider the decision en banc. En banc review was particularly important because the decision suggested that the panel felt hamstrung by the Ninth Circuit’s earlier decision in Rossi v. MPAA, a decision which had the effect of making it functionally impossible for people whose content had been wrongfully taken down to ever successfully sue the parties who had caused that to happen.

Although the updated language exorcises some unhelpful, under-litigated ideas that suggested automated takedown systems could be a “valid and good faith” way of processing takedowns while considering fair use, the new, amended decision does little to remediate any of the more serious underlying problems from the last version. The one bright spot from before fortunately remains: the Ninth Circuit has now made clear that fair use is something that takedown notice senders must consider before sending them. But as for what happens when they don’t, or what happens when they get it wrong, that part is still a confusing mess. The reissued decision doubles-down on the contention from Rossi that a takedown notice sender must have just a subjectively reasonable belief – not an objectively reasonable one – that the content in question is infringing. And, according to the majority of the three-judge panel (there was a dissent), it is for a jury to decide whether that belief was reasonable.

The fear from September remains that there is no real deterrent to people sending wrongful takedown notices that cause legitimate, non-infringing speech to be removed from the Internet. It is expensive and impractical to sue to be compensated for the harm this censorship causes, and having to do it before a jury, with an extremely high subjective standard, makes doing so even more unrealistic.
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Jul 072015
 

The following is cross-posted from Popehat.

There is no question that the right of free speech necessarily includes the right to speak anonymously. This is partly because sometimes the only way for certain speech to be possible at all is with the protection of anonymity.

And that’s why so much outrage is warranted when bullies try to strip speakers of their anonymity simply because they don’t like what these people have to say, and why it’s even more outrageous when these bullies are able to. If anonymity is so fragile that speakers can be so easily unmasked, fewer people will be willing to say the important things that need to be said, and we all will suffer for the silence.

We’ve seen on these blog pages examples of both government and private bullies make specious attacks on the free speech rights of their critics, often by using subpoenas, both civil and criminal, to try to unmask them. But we’ve also seen another kind of attempt to identify Internet speakers, and it’s one we’ll see a lot more of if the proposal ICANN is currently considering is put into place.

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Mar 242015
 

A few months ago an advisory committee for the California State Bar promulgated an interim ethics opinion addressing when lawyers’ blogs should be subject to applicable bar rules governing lawyer advertising.

The impetus behind having bar rules addressing lawyer advertising is generally a reasonable one. The nature of the lawyer-client relationship, the relative imbalance in their respective expertise, and the stress inherent with the sort of situation that would require a lawyer’s assistance makes it important to ensure that lawyers are not misleading or overly aggressive in their solicitation of business. The applicable bar rule regarding lawyer advertising in California is also not especially onerous (although the same may not necessarily be said about similar rules in other jurisdictions).

But a blog is speech, and applying regulation to speech is something that constitutionally can only be done in very limited ways and in very limited circumstances. Yet there is nothing limited about this recommendation. It promulgates a standard that would ultimately catch many, if not most, legal blogs in the California bar’s regulatory net, despite it being unnecessary and chilling to speech that should be beyond government’s reach.

It’s also simply not a good idea that serves the public interest.
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Mar 152015
 

I was asked by someone to comment on an opinion article lambasting the recent FCC action to regulate Internet broadband under Title II. Some of the rhetoric surrounding Net Neutrality is so polarized, he observed, that he couldn’t tell fact from hyperbole and was hoping I could demystify what is going on. As I started writing down my thoughts, they began to take the shape of a blog post, which follows here.

The infrastructure allowing people to connect to the Internet is, by and large, in the hands of a few private commercial entities who have figured out that it might be profitable for them to prioritize certain network traffic over other traffic if those originating this content pay them for this prioritization. The worry here is that content prioritization inherently also amounts to content discrimination. If this practice is allowed to continue, such that the only content Internet users can effectively access is that which is produced by moneyed players able to pay for its prioritization, all the grassroots voices or start-up businesses that also depend on the Internet to have their content disseminated, but cannot afford to pay for the broadband carriers for it, will effectively be drowned out.

Of course, not everyone believes that this sort of scenario is something to get worked up over, and this view shows up in the net neutrality debates. But increasingly the attitude of “Net Neutrality? Who cares?” seems to be largely marginalized. Public opinion (especially ever since the John Oliver soliloquy) seems to be of the view that for the Internet to remain the valuable resource it is, entities providing access to it should allow for the transmission all content equally. President Obama has also come out publicly in support of this view, and at least the three FCC commissioners who ended up voting for the Title II classification appear to share it as well.

Essentially the debate has now moved from “should we have Net Neutrality?” to “how do we achieve Net Neutrality?” The problem now is, though, that while we may want a free and open Internet, it’s not entirely clear how we get it.
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