SC Says Entertainment Industry Can Shut Down Sites Without Checking Content
from the due-process? dept
The Supreme Court has decided not to hear a case concerning how far the entertainment industry needs to go to prove they believed a site was infringing on their copyrights before sending out a takedown notice to an ISP. There are plenty of reasons why the Supreme Court would probably decide not to take this case -- many of which are being confused by the somewhat aggressive nature of the publicity campaign by the person appealing the case. The case involves a site, InternetMovies.com, that tried to get users to sign up, promising downloads of movies. In reality, the site never actually offered movie downloads, but just movie trailers -- but the language on the site certainly suggested otherwise. The MPAA sent a takedown notice to the ISP hosting the site, who complied. Earlier court decisions agreed that the MPAA had made the takedown notice in "good faith," despite the fact that no actual movies were being shared. However, given the claims on the site clearly suggesting that the movies were available, it makes sense that the industry would think that, indeed, they were there. The real issue is the due process afforded to the site once a takedown notice is made. The ISPs in question should allow the user to respond prior to actually taking down the site -- but the DMCA doesn't support that. While the folks who lost this appeal are complaining about it, it's not uncommon for the first case covering an issue to be turned down by the Supreme Court. Should another ruling come up about this issue (especially with a different result), the Supreme Court may take on this issue at a later date. In the meantime, it wouldn't hurt for some elected officials to review the takedown procedure associated with the DMCA and look at ways to improve the due process it affords.
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There is no requirement for due process
Here's another definition I pulled from Google's cache (the original page is not available).
"Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.
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