Apr 032016
 

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

Congress in the 1990s may not have been able to predict the growth of the Internet, but it could see the direction it was taking and the value it had the potential to deliver.  We see this recognition first baked into the statutory language of 47 U.S.C. Section 230 (“Section 230”), a 1996 statute that provides unequivocal immunity for service providers that intermediate content from other users:

Congress finds the following: [that t]he rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens[;[1] that t]hese services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops[;[2] that t]he Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity[;[3] that t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation[;[4] and that i]ncreasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.[5]

It was therefore the policy of the United States to, among other things, “promote the continued development of the Internet and other interactive computer services and other interactive media”[6] and “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”[7]

As the Notice of Inquiry soliciting comment for this study noted,[8] Congress was still of the same view about the importance of the Internet two years later when it passed the DMCA explicitly to help “foster the continued development of electronic commerce and the growth of the Internet.”[9]  As per an accompanying Senate Report, “The ‘Digital Millennium Copyright Act of 1998’ is designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.”[10]  As the Report continued, Congress was going to achieve this end by protecting intermediaries, observing that, “[B]y limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand.”[11]

At no time since then has Congress fundamentally changed its view on the value of the Internet.  Nor should it.  In these nearly twenty years we have seen countless businesses and jobs be added to the economy, innumerable examples of pioneering technology be innovated, myriad new markets previously unimaginable be created (including many for those in the arts and sciences to economically exploit), and enormous value returned to the economy.  By protecting online service providers we have changed the world and brought the democratic promise of information and knowledge sharing to bear.  It is therefore absolutely critical that we not create law that interferes with this promise.  If anything, we should take this opportunity to reduce the costly friction that the more inapt portions of the existing law have been imposing instead.
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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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Feb 212015
 

Back in December I traveled to Pasadena to observe the oral argument in the en banc appeal of Google v. Garcia, a case I filed an amicus brief in on behalf of Techdirt and the Organization for Transformative Works. (Actually, I ultimately wrote two briefs, one in support of the en banc appeal being granted and one as part of the appeal once it was.) After the hearing I wrote a synopsis of the arguments raised during the appeal on Techdirt (originally titled, “Celine Dion And Human Cannonballs“), which I’m now cross-posting here: Continue reading »

Feb 202014
 

The following was posted on Project-Disco.org earlier this week:

What would the Internet be without its intermediaries? Nothing, that’s what. Intermediaries are what carry, store, and serve every speck of information that makes up the Internet. Every cat picture, every YouTube comment, every Wikipedia article. Every streamed video, every customer review, every online archive. Every blog post, every tweet, every Facebook status. Every e-business, every search engine, every cloud service. No part of what we have come to take the Internet for exists without some site, server, or system intermediating that content so that we all can access it.

And yet, if we’re not careful, we can easily lose all the benefits these intermediaries bring us. Thankfully, in the United States we have some laws that help ensure they can exist, chief among them 47 U.S.C. Section 230. As my recent paper on the state of the law regarding intermediary liability explains, this law stands for the proposition that intermediaries are only responsible for what they themselves communicate through their systems – not what others use them to say. For example, newspapers that post articles online are only responsible for the content of the articles they publish, not the comments readers then post to them. Similarly consumer review sites are only responsible for the information they supply to their sites, not the user reviews themselves. This same principle also means that people who link to content (as search engines do) are not legally responsible for that content, even if that content should happen to be illegal in some way (like by being potentially defamatory).

The reason Section 230 has been so helpful in allowing the Internet to thrive and become this increasingly rich resource is that by relieving intermediaries of liability for the content passing through their systems it has allowed for much more, and much more diverse, content to take root on them than there would have been had intermediaries felt it necessary to police every byte that passed through their systems out of the fear that if they didn’t, and the wrong bit got through, an expensive lawsuit could be just around the corner. Because of that fear, even if those bits and bytes did not actually comprise anything illegal intermediaries would still be tempted to over-censor or even outright prohibit scads of content, no matter how valuable that content might actually be.

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