Why The DMCA Is An Unconstitutional Restriction On Free Speech
from the notice-and-takedown-this dept
Many legal scholars have discussed the fact that copyright law and the First Amendment are, by their very natures, in conflict. Historically, the Supreme Court has gotten around this conflict by saying that things like fair use and the idea/expression dichotomy help keep things balanced -- though many have questioned whether the massive expansion of copyright law over the last century should have changed that analysis. In the Eldred case, the Supreme Court mostly rejected the argument that copyright extension was a violation of free speech, though many legal scholars find that decision a bit of a head scratcher (if you want a great analysis of why that decision makes no sense under the law, the book No Law is a worthwhile read).But there are still other areas where changes to copyright law may be vulnerable under a First Amendment analysis. So far, the only court case (and it's still at a low level) that has been successful in attacking the copyright on these grounds is the Golan case, which focuses on a very narrow part of copyright law.
However, it looks like some people are finally looking at some hugely questionable parts of copyright law that seem in direct conflict with case law concerning the First Amendment. Copycense points us to a fantastic recent paper from law professor Wendy Seltzer discussing how the DMCA's notice-and-takedown policy appear to violate the First Amendment:
Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.I'm sure that our usual copyright system defenders will pop up quickly in the comments to dismiss this as ridiculous, but it's a really strong point. The basic nature of the notice-and-takedown -- even if done by private firms -- appears to be in direct violation of the First Amendment. The fact that the DMCA effectively requires companies to take this step in order to protect themselves from liability via the DMCA's safe harbors, means that even though it's a private company doing this, they are compelled to do so by the government. It does make you wonder if a compelling First Amendment case could be made around this particular issue.
If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?
This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.
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Filed Under: dmca, first amendment, free speech, supreme court, unconstitutional
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Not at all
Not in the slightest - copyright, in an of itself, is a violation of the First Amendment. By extension, and as illustrated above, the DMCA is clearly in violation of the same.
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Re: Not at all
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Well... yes and no. There's actually a fair bit of case law and literature on this fact. Because the 1st Amendment was passed *after* the copyright clause, most scholars admit that it supersedes that clause. Second, the definition of copyright law has changed drastically over time, and even the Supreme Court has noted that if Congress changes the traditional contours of copyright law, it should be subject to a First Amendment analysis.
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Re: Re: Re: Not at all
I would be curious to learn who are contained within the phrase "most scholars". I daresay it is a very short list.
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Re: Re: Re: Re: Not at all
> that the First Amendment supersedes Article 1,
> Section 8, Clause 8.
> I would be curious to learn who are contained within
> the phrase "most scholars". I daresay it is a very
> short list.
It's a standard rule of statutory construction, taught in law schools from one end of the country to the other, and practiced daily by appellate courts all over the nation, that when two laws conflict, the last in time supersedes the first.
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Re: Re: Re: Not at all
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How does this happen?
Does this issue (and many others like healthcare) not highlight one of the largest flaws in our Constitution? Nothing truly prevents Congress from passing laws which directly violate the rules set forth in the Constitution. I know it would never happen, but should their not be an amendment which forces all would-be-legislation to be reviewed for Constitutional legitimacy? Is that even feasible?
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Re: How does this happen?
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Re: Re: How does this happen?
Actually, I think the issue is that people don't want to subsidize healthcare for those they consider "freeloaders". Usually, this is because they don't understand how that subsidy will benefit society as a whole.
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Re: Re: Re: How does this happen?
Also not to mention that they always seem to think that all of the Americans who go without insurance do so out of choice, and seem to think that the huge numbers of medical bankruptcies somehow don't cost them tax dollars.
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Re: Re: Re: How does this happen?
All I have heard is that now everyone is required to have insurance. all that will do it make insurance companies richer.
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Re: Re: Re: How does this happen?
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Re: Re: How does this happen?
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Re: Re: Re: How does this happen?
What amendment, law, right, etc says that the government cannot mandate them to make you do something.
I am not trying to attack you. I agree that they should not mandate these things and oppose the healthcare bill on that subject and others but I fail to see how they are infringing on my rights.
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Re: Re: Re: Re: How does this happen?
But if you want a specific amendment - the 10th.
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Re: Re: Re: Re: Re: How does this happen?
The commerce clause.
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Re: Re: Re: Re: Re: Re: How does this happen?
The Commerce Clause only allows the federal government to regulate interstate commerce. It in no way empowers the government to force commerce on the citizens. And if the plain text of the Constitution isn't enough to make that clear, then the writings of the Founders will more than fill that gap for you.
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Re: Re: Re: Re: Re: Re: Re: How does this happen?
Yep, and almost everything has some effect in some way on interstate commerce. Thus, the commerce clause can apply to almost anything. At one time there were a group of southern states that thought otherwise, but that little disagreement was settled with a civil war.
It in no way empowers the government to force commerce on the citizens.
Except if it has some effect on interstate commerce, which most things do.
And if the plain text of the Constitution isn't enough to make that clear, then the writings of the Founders will more than fill that gap for you.
And in case you didn't know, the courts decide what the text of the Constitution means, and what I described above is basically what they have decided. Now if that still isn't clear enough for you, then perhaps you should go back to law school to see if that they can fill that gap in your education for you.
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Re: Re: Re: Re: Re: Re: Re: Re: How does this happen?
> interstate commerce.
That still doesn't empower the federal government to *create* commerce by forcing everyone to buy something whether they want it or not. The Constitution clearly says "regulate" commerce. Not create it.
> Thus, the commerce clause can apply to almost anything.
Yes, that's the tortured reasoning that the Supreme Court used to rule the New Deal programs constitutional under a court-packing threat from the Executive Branch. Hardly a persuasive argument. A document whose entire purpose is to limit the power of the federal government is suddenly "interpreted" to mean the federal government has unlimited jurisdiction.
Yeah, right.
It in no way conforms to the principles of limited government that the Founders intended and envisioned. The entire Constitution is an exercise in creating a limited federal government, with the majority of the actual governing left up to the state and local governments. What we've ended up with-- as a direct result of self-serving and illogical "interpretations" of the Commerce Clause-- is the exact opposite of what the Constitution calls for.
Checks and balances is a wonderful concept but it only works if each branch actually does its duty and checks the power of the other two. Unfortunately what we've experienced is a judicial branch which has wholly abrogated its duty in this regard and allowed the legislative branch to run amuck.
> > It in no way empowers the government to force commerce
> > on the citizens.
> Except if it has some effect on interstate commerce, which most
> things do.
No, the Constitution clearly only allows the government to regulate existing commerce between the states. It does not allow the government to create commerce of its own volition. That's if the words in the document mean anything any more, of course.
> And in case you didn't know, the courts decide what the text of the
> Constitution means
No, the courts decide what they want to have happen and then work backwards from that result, claiming that words mean things that they clearly do not and the Constitution says things that it clearly does not in order to justify the results they want.
> perhaps you should go back to law school to see if that they can
> fill that gap in your education for you.
It was law school that taught me how bankrupt our entire government has become. A government that pays lip service to a supreme law but refuses to actually follow it at almost every turn.
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Re: Re: Re: Re: How does this happen?
Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Period. End of story.
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Re: Re: Re: Re: Re: How does this happen?
Sorry, you cant teabag out of that one.
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Re: Re: Re: Re: Re: Re: How does this happen?
The second point your going to try is the Commerance Clause, expect as Health Insurance is unable to be bought across state lines, that makes the argument defunct as well.
If you want reform you have play by the rules, not make special ones to buy votes.
So actually try and learn how the whole thing works, and thanks for proving a point, if you cant understand or defend something logically, move on to name calling, standard practice now a days by the left.
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This comes back to the classic argument of the Federalists vs. the Anti-Federalists, an issue that goes back to the founding fathers.
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Re: Re: Re: Re: Re: How does this happen?
Social Security
Medicare
The Hyde Amendment banning federal funds for abortion
3 things you can't say you're against and get away with it politically.
Some things are worth while even though they don't pass the constitutional test as they better the nation as a whole. That probably means they *should* be in the Constitution, but given today's 'just say no' climate of GOP objection to everything, you'd never get anything of that magnitude through. (and for the record, the Hyde Amendment is something I oppose strongly - if a procedure is *legal* it should be covered, period.)
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Re: How does this happen?
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Re: Re: Re: Re: Re: Re: How does this happen?
Both are broke, mis-managed, and bloated red-tape that is a jobs program for the lazy and stupid.
If its worth while, then push your state to adopt a program, and if it works in your state the rest of us might give it a try.
Oh and nice on the GOP bashing, course I will always remember the party that rallied against the civil rights movement in the 60's (oh that was the Democrats wasn't it..... hmmmm yup sure was) Sorry but both party's are not looking to the good of the nation, only the good of themselves and their "special" interests.
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Re: Re: Re: Re: Re: Re: Re: How does this happen?
Nope, it was the Republicans. Presidents Kennedy and Johnson were both Democrats. Their opponents, Nixon and Goldwater (not exactly the biggest supporters of civil rights), were Republican.
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Re: Re: Re: Re: Re: Re: How does this happen?
> violate the constitution:
> Social Security
> Medicare
> The Hyde Amendment banning federal funds for
> abortion
Yes. Those are also unconstitutional. As is the Department of Education, Health and Human Services, Housing and Urban Devlopment... the list goes on.
You're apparenlty just discovering that the federal government has gone off the reservation and been operating almost as a rogue power for the better half of the last century.
The Constitution means nothing any more. There's nothing in it that will stop the government from doing what it wants. Everything from the Patriot Act under the last administration to this health care debacle is patently unconstitutional but if the politicians want it, they get it, and the courts are complicit in it by rarely (if ever) standing up to them.
Hell, we just had a congressman in Florida this last week admit on camera at a town hall that he flat out doesn't care what the Constitution says. At least his honesty is refreshing. He's only saying out loud what anyone with a brain has known for years.
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Re: Re: Re: Re: Re: Re: Re: How does this happen?
I think it is the courts that make that decision, not you, and they disagree. Delusions of grandeur, much?
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Re: Re: Re: Re: Re: Re: Re: Re: How does this happen?
> I think it is the courts that make that decision, not you, and
> they disagree. Delusions of grandeur, much?
Becoming a justice isn't some magical process that suddenly imbues them with power and wisdom beyond the abilities of the rest of us. They're just men and women like everyone else and when they declare the Constitution says something that it clearly does not (or says the exact opposite), then they're clearly wrong. Their decisions may have the force of law but they're not infallible. If they were, the Court would never contradict itself, would it?
After all, the Supreme Court once ruled that black people weren't fully human and that slavery was constitutional. They kinda blew that one, didn't they? They've been wrong before and they'll be wrong again and as a citizen, I have every right to point it out when it happens and (your ad hominems aside) doing so is not "delusions of grandeur".
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Re: Re: Re: Re: Re: Re: Re: Re: Re: How does this happen?
Unlike yourself, eh?
They've been wrong before and they'll be wrong again and as a citizen, I have every right to point it out when it happens and (your ad hominems aside) doing so is not "delusions of grandeur".
And as a citizen you also have the freedom to be wrong and suffer from delusions of grandeur. Congratulations.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: How does this happen?
> to be wrong and suffer from delusions of
> grandeur.
Well, seeing as how your argument has degenerated into nothing but ad hominems, I'll let that speak for itself.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: How does this happen?
Just observations, and I'll let *them* speak for *themselves*. The reader can decide to whom they may apply.
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> argument has degenerated
> into nothing but ad hominems,
> I'll let that speak for itself.
> Just observations
And ad hominems. The two are not mutually exclusive, genius.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: How does this happen?
That's funny, coming from someone who ends his post with name-calling.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: How does this happen?
Really? I was aware of them not being considered legal "persons" at one time, but I was unaware that the Supreme Court had ruled them to not even be human (a biological designation). Citation please, or I'm calling "bullshit".
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> I oppose strongly - if a procedure is *legal* it
> should be covered, period
Huh?
Just because something is legal doesn't mean you have the right to force your fellow citizens to pay for it.
The 2nd Amendment guarantees the right to bear arms but that doesn't mean you're entitled to a free shotgun at taxpayer expense.
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Re: Re: Re: Re: Re: Re: How does this happen?
> don't pass the constitutional test as they better
> the nation as a whole.
So you're basically an "ends justify the means" kinda guy, huh?
As long as we're making the nation "better as a whole", it's okay to flat-out ignore the supreme law of the land. That about sum it up?
Just one question: whose definition of "better as a whole" are we going with when ignoring the Constitution?
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Re: Re: Re: Re: Re: Re: Re: How does this happen?
Only when it comes to the powers granted in the Constitution. If the Constitution gives the federal government the power to regulate or enforce something (counterfeit currency, copyright, etc.), then yes, federal law trumps state/local law. But if its a power *not* granted to the federal government (education, health and safety, etc.) then state/local law is supreme.
That's the federalist system that was set-up by the founders when they wrote the Constitution. It's sad that most of our citizens don't understand that anymore and just believe that "federal law is always supreme".
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title of doom
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Re: Re: Re: How does this happen?
The Militia Act of 1792 required all able-bodied men from ages 18 to 45 to "provide himself" with a musket, ammo, and other equipment. Or, in other words, to purchase a specific thing at your own expense. Since this was enacted by a government made up of many of the Founding Fathers, you'd think they'd know whether it was constitutional or not.
George Washington didn't seem to think it was unconstitutional. You going to argue with the father of our country?
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Re: Re: Re: Re: How does this happen?
What you left out or did not know:
this act was in direct relation to the Constititutionally granted power (to the Federal Government) for War and Defence and allowed for the Federal Government (Executive Branch) to bring some order to the Militias maintained by each state, and allowed to grow the army quickly in case of invasion (those pesky red-coats).
So it was passed to give the Federal Government the ability to fullfil its role as assigned by the Constititution.
what Role is healthcare in relations too?
Thanks for bringing that Act though, i had not thought about how it related.
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Re: Re: Re: Re: Re: How does this happen?
Health insurance can really only be acquired via purchase.
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Re: Re: Re: Re: Re: Re: How does this happen?
I trade my labor for mine and my children get theirs from their parents.
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Re: Re: Re: Re: Re: Re: How does this happen?
How you get it is your business.
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Re: Re: Re: Re: Re: How does this happen?
This was meant to address the notion that the government can't "force" you to purchase a product or service.
It's akin to people objecting to answering questions about race on the census form because "it's not in the constitution." Questions about race have been asked since the first census in 1790.
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Re: Re: Re: Re: Re: Re: How does this happen?
> support for health insurance reform. Most legal
> scholars I've read on this subject are pretty well
> agreed that it will easily pass a challenge on
> constitutional grounds.
That's only because the courts have already bastardized the Commerce Clause so far beyond what it was originally intended to do that yes, based on current Supreme Court precedent, which basically says that a person's mere existence affects interstate commerce and that therefore the federal government has unlimited jurisdiction, the health care bill will probably pass muster in the lower courts.
What will be interesting to see is whether the current Supreme Court, with its 5-4 conservative majority-- will take the opportunity to overturn some of those precedents and reign in the federal government, which is currently operating so far beyond the original intentions of the founders and the document they created, that they would not even recognize it, if they could somehow be brought forward in time and have it shown to them.
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Re: Re: Re: How does this happen?
good reference: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/statecommerce.htm
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Um, my health insurance company is out of state.
and the Commerce Clause was designed for the Federal Government to make sure states did not tax each others goods (like tariffs). So it would be a huge stretch to get it under that clause.
You apparently don't know much about how the courts have ruled on that, do you?
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The end result is the same,,, The uninsured eventually become a burden on the middle class tax payer.
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> mandate that makes people get health insurance
> and have no qualms whatsoever about 'forcing'
> people to have CAR insurance.
No one forces you to have car insurance. You're perfectly free to choose not to own a car or to drive one on the public roads. If you walk, bike, or take the bus everywhere you don't have to buy car insurance at all.
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Re: Re: Re: Re: How does this happen?
Or "forcing" people to pay for fire and police protection or public education.
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Re: Re: How does this happen?
It infringes in the sense that regulating health care to the extent of forcing every citizen to purchase a good or service, whether they want it or not, is beyond the powers of the federal government, which are listed in Article I, Section 8.
If the federal government exceeds its constitutional authority, and in doing so affects my life negatively, then my rights under the 10th Amendment have been infringed.
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Re: How does this happen?
If you think a law violates the constitution and you have standing, then you can take the issue to the courts. Ultimately, the Supreme Court will rule whether or not the law (or action by the Executive branch) is constitutional. Also, the Supreme Court's decision to not hear a case and rely on a lower court's ruling is an indication that it doesn't see any constitutional issues with it.
Again, congratulations on recently becoming a U.S. citizen.
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Key phrase
Free speech gives you the right to say what you want, not the right to use 3rd-party services to say what you want. Although not everyone can do it themselves, it's relatively simple to set up an http-server for hosting your content. And finding someone to set up the hardware and software for you is just a phone call away. Considering these points, I don't see the courts striking down the DMCA in the scenario you described.
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Re: Key phrase
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If you pay for an internet access plan that permits you to host a http-server, meaning no residential accounts, then you should be fine because you're just paying for the "pipe". Now, if you ISP shuts off your access due to a DMCA take down notice then you might be able to make a case.
Then it depends on if the ISP acted incorrectly by shutting off your access, or if the DMCA applies to hosting and access. If the DMCA applies to access, then you might be able to make a case for the law being unconstitutional.
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Re: Re: Re: Key phrase
ISPs can take down whatever they want on their own, but it's not constitutional for the government to mandate it in the DMCA.
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Re: Re: Re: Re: Key phrase
My argument is that it's not a constitutional restraint because it's not the ISP's free speech. It's the individual's free speech. And, from a rights perspective, the individual's rights aren't being restricted because the individual can host the content themselves. The ISP isn't required to host the content in regards to the first amendment. The ISP chooses to host content for its customers, but when the ISP is made aware that content it hosts violates the law then the ISP chooses to remove the content.
Let's draw a comparison. Should the WikiLeaks site be allowed to host its content on ISP servers in the U.S.? For example, some of the content includes classified information which is illegal to provide without proper credentials. Is it a violation of the first amendment to require the ISP to remove the classified documents?
The DMCA requires ISPs to remove content when it receives a notice from the copyright owner that the content infringes (i.e. breaks the law). Essentially, if an ISP knowingly hosts content that infringes on copyright then it can be liable. If the law (again, as it is written) allowed the content to stay up until a court decided that it infringed, then it would severely limit the effectiveness of the law.
The law is about liability for hosting the content. An ISP generally has no reason to care whether the content infringes or not. It just employs the processes set forth in the DMCA - take it down when you receive a notice of infringement, and then put it back up when you receive a counter notice of non-infringement.
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Re: Key phrase
So, yes, the first amendment allows me the right to say whatever I want on a third party site. The government can not tell me otherwise.
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Re: Re: Key phrase
The issue here is that what you've put up doesn't infringe on someone's copyright, or at least you believe that it doesn't. Under the DMCA, the copyright owner issues a take down notice to the ISP. The ISP is going to take it down until you respond with a counter notification of non-infringement.
If you host your own content and receive a take down notice then it's up to you to take it down. If it doesn't infringe, or you're making a stand on free speech grounds, then you leave it up and let the copyright owner take you to court.
If the content you put up doesn't infringe on copyright in the first place, then you're not in any jam at all -- even if you host it yourself. And that's the point I was trying to make. I don't see these circumstances being effective in using the first amendment to strike down the DMCA because you have the ability to host your own content and decide for yourself whether you'll comply with a valid or invalid DMCA take down notice.
But, now that we've talked about it more, I wonder if the legal costs required to defend against an invalid DMCA take down notice would be enough grounds to declare the current process -- take it down or else -- unconstitutional?
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Re: Re: Re: Key phrase
But you have to take down the content before that is established by a court or face liability - prior restraint.
If you host your own content and receive a take down notice then it's up to you to take it down. If it doesn't infringe, or you're making a stand on free speech grounds, then you leave it up and let the copyright owner take you to court.
That's like saying that you can say anything you want without the 1st amendment, you just might end up getting imprisoned or killed by the government. The DMCA explicitly makes third parties liable for not censoring content prior to it being declared infringing. How the hell are they supposed to determine that themselves with a quick glance?
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Regarding your second statement, my argument is that the DMCA says that an ISP will be found liable if it ignores a take down notice and the content is later declared to be infringing. The ISP makes a choice - follow the DMCA process at minimal cost or incur a huge cost to employ a team of experts in copyright law and review the content when you receive a notice.
I don't see how that restricts the individual's right to free speech. It's not stopping the individual from hosting the content, it's just stopping the individual from hosting the content on the ISP's servers.
Consider this example: You write a fan fiction comic and take it to a book store. They agree to rent you a table so you can give it away for free. Then Marvel calls the book store and says the comic infringes on its copyright. Will the book store be liable under copyright law if a court later decides that it does infringe on Marvel's copyright and the store continued to rent you the table and you continue to give away the comic after Marvel notified them?
If the answer is, yes - the store is liable, then I see the DMCA doing the same thing. If the answer is, no - the store is not liable, then the DMCA needs to change. But, not on the basis of the first amendment - on the basis of application of copyright law.
Again, I don't agree with it, but I also don't see a first amendment case in there.
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You will still have to prove that it's not infringing - at your own expense. Defending yourself in court is not cheap. It would also be nice if the companies issuing fake takedown notices actually faced the perjury penalties that are meant to be part of the law, but few do.
"I don't see how that restricts the individual's right to free speech."
Quite simple. Although there's nothing from stopping an individual from hosting their own content, most people do not know how to set up a web server. They will have none of the expertise to make the server secure and reliable, and will incur extra costs in doing so. They will become the personal targets of the DMCA notices, and will incur the court costs when they refuse to remove the content they know is not infringing.
This puts up a barrier that deters individuals from exercising their free speech rights,and thus restricts it.
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Sure, I could print it out at home but I don't have the money or expertise to buy and install a printer that will print and bind my publication. Doing so would require me to purchase additional equipment, hire an expert to set it up for me, and make me the personal target of copyright lawsuits. So, the the print shop has to do it for me even though it will make them liable for infringing copyright; and I'm still liable anyway.
Does that make sense? Not to me. So why should ISPs have to do the same thing?
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Your print shop example is rather irrelevant. The shop isn't merely providing space for the content, it's participating in the physical creation of a potentially infringing product. Therefore, it bears some responsibility, while an hosting provider should not as it's not actively participating in any infringement. A more relevant analogy would be whether or not DHL should be held responsible if you send a counterfeit product through their network - no, they should not.
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The DMCA says that the ISP isn't liable until it has been notified (there's the safe harbor). But after the ISP has been notified then it can be held liable if it doesn't remove the content.
There is no requirement for ISPs to remain involved. As a business decision, they've decided to just pull the content instead of incurring the cost of reviewing it and risking the liability if their decision to leave content up was wrong.
My contention is the requirement for ISP participation. I'm just not convinced that free speech involves more than 2 parties - the individual and the government.
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If the government creates a law that compels Party A to limit the speech of Party B, then, in effect, the government has limited the speech of Party B.
If a cop hires a civilian to break into my house and search it for evidence because he could not obtain a warrant, my 4th Amendment rights have still been violated.
This *could* be resolved if the burden of proof was raised to much higher than a mere accusation, in my opinion, but as it is it does appear to violate speech.
This does not even mention that all this speech is being repressed solely for a civil matter, which seems asinine when compared by weight. Speech > Business Model (imo, of course)
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In that example, the store is providing you with a table for the express purpose of selling the comic, so they're likely to have much more direct control over it than a major internet site. They would be aware of the purpose of this single transaction, and thus potentially be more liable than a site like YouTube or Wordpress, which handle thousands of automated transactions every minute.
Regardless, it's my belief that the person responsible for the actual infringement should be the only one in danger of prosecution, so they should ideally be in the clear IMHO.
"The DMCA says that the ISP isn't liable until it has been notified (there's the safe harbor). But after the ISP has been notified then it can be held liable if it doesn't remove the content."
It also states that a falsely issued takedown notice should be regarded as perjury. The lack of prosecutions on this issue is one of the major problems - major corporations taking a scattershot approach to takedowns with no fear of reprisal if the content is not infringing.
The problem is also one of balance. The hosting providers stand to lose a lot more from a successful prosecution than they would get from an average consumer, so they will remove any content claimed to be infringing without question to protect their business. This skews access to free speech away from individuals and toward corporations. Not a good thing.
"As a business decision, they've decided to just pull the content instead of incurring the cost of reviewing it and risking the liability if their decision to leave content up was wrong."
...and thus removing the access to free speech that they would have provided. Exactly my point.
"I'm just not convinced that free speech involves more than 2 parties - the individual and the government."
Again, if said speech requires a 3rd party for the majority of people to have free access to it, then it clearly does.
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Although, as internet access and use continues to become predominant then it might become more difficult for the government to ignore your last statement about permitting the majority of people to have free access.
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that is the legal question for the courts and scholars: is my website a publication, like a newspaper, with constitutional protection? is my website an extension of my own free speech? is my website bound by the agreements i make with a service provider in order to host it? if so, do those agreements violate my constitutional right to free speech?
the DMCA says it is #3, and that makes sense as long as you do not value free speech. others, myself included, value free speech and therefore disagree.
in the end, it doesn't matter. you can't censor the internet for very long. it will just evolve and make it pointless.
Although not everyone can do it themselves, it's relatively simple to set up an http-server for hosting your content. And finding someone to set up the hardware and software for you is just a phone call away.
in time this will be a moot point. services and technologies like freenet, i2p, and tor hidden services will improve to the point that they easy enough to use that anyone will be able to make use of them and at that point there will be no way to stop free speech, or piracy, or anything else.
that's the problem with laws made by lawmakers that don't understand technology: changing a law is *WAY* harder than changing a technology.
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The constitution says that you are allowed to do these things. But, it doesn't require third parties to enable you to do them.
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part 2 of your sentence is not true, as freedom of the press (i.e. the mechanical printing press, not an institution) was originally intended to protect publishing in the same manner as speech.
so yes, i have the right to use a 3rd party service to say what i want. in 1776 that party owned a printing press in town, in 2010 that party owns servers on the other side of the country.
so yes, the tension and conflict between the dmca and the first amendment are quite real.
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so yes, i have the right to use a 3rd party service to say what i want. in 1776 that party owned a printing press in town, in 2010 that party owns servers on the other side of the country.
well said :-)
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Using your example of the physical printing press, let's assume that you don't have your own printing press. If you wanted to reproduce a something on the local printer's press, someone notified him that what you want to do will violate a copyright, and that he will be held liable if he allows you do it, then there is nothing about freedom of speech or freedom of the press that requires him to let you use his press.
However, if you have your own printing press, then you can do as you please unless the court decides that you violated a copyright.
Like I said, you're free to host the content on your own server and leave it up as long as you like. But, the ISP isn't required to host your content if that content might open it up to liability. And if the ISP decides to take it down, it doesn't violate your first amendment rights.
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When you receive a take down notice, you have the choice to remove it or not. If you choose not to remove it, and it's later found to be infringing on copyright (i.e. not fair use), then you can be held liable. ISPs have decided to just take it down because it's not worth the risk to review items and make a judgement call to leave content up. It would cost too much to hire a team to do it, and even then they might be wrong and the ISP would still be liable.
Again, the liability only comes into play if the content actually infringes on copyright. If it's fair use, there is not liability.
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Of which there are several problems you haven't recognised the magnitude of, yet oddly mentioned:
This inherently stacks things in favour of the accuser, against most ideas of due process and fair trials. With no requirement to establish whether a work or use of a work comes under fair use before content has to be taken down, companies filing DMCA notices have little incentive to think twice about sending them, even in situations where it may be obvious that fair use would apply and such a requirement would therefore violate freedom of speech.
All incentives lean towards content hosters (not just ISP's but service providers like Youtube and individuals hosting their own) to remove content, as there are many cases where fair use may be more complex to figure out. To expect a host to be that proficient in figuring out when such content is fair use, or to even want to put themselves in such a difficult position which may entail large risk is a seemingly stupid burden to place on a private, disinterested entity. You're passing a large part of what should be the job of the courts onto service providers to even get the initial chance to defend yourself.
If fair use is considered an extension or protection of free speech in how it interacts with copyright, then a system such as this undermines free speech. All incentives are to service providers and individuals to remove content straight away as a means to come under safe harbor, due to the kind of risk and burden you're placing on what is fundamentally the wrong party to be putting any of that responsibility on. Fair use is a matter that should be decided by the courts, especially in how complex deciding such a thing can be.
This is without taking into consideration the the raising of costs this creates should someone want to argue their case, due to the affects of the above.
Ergo, stifling free speech.
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You're also right that determining the copyright status of content is too large a burden to put on an disinterested entity. The DMCA basically punted the issue so the government didn't have to piss off too many people too much.
And finally, this is where Congress got especially crafty. They basically built in the provision for perjury (mentioned above) and the process for filing a counter-notification of non-infringement so that they could point to the law and say, "see, we've taken into account both sides." So, in practice we have a system where copyright owners blast out notices because they won't be charged with perjury.
And in cases where someone wants to fight, they file a counter-notification and the content goes back up. Essentially, nothing changes except there's about a week when the content was offline.
And that's the system that we operate in today. The law is written in such a way that, IMHO, a successful overturning of the DMCA based on the first amendment can't be made using these arguments.
But, as you eluded to at the end, perhaps the financial burden required to actually defend yourself in the system is the route that could be used to overturn the DMCA based on the first amendment. I agree - I mentioned it in a couple of my posts, too.
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Thus, the DMCA is violating your free speech rights through prior restraint BY THE GOVERNMENT.
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This is a business decision by the ISP - it's cheaper to just follow the process than it is to set up its own internal content review process.
Having said that, and depending on the market, there could be a sound business plan for an ISP that specializes in hosting content that exists in the grey area of copyright/DMCA law. The basic pitch to customers being:
-We'll host whatever you upload
-When we receive a DMCA take-down notice, we'll notify you so that you can prepare a counter-notification of non-infringement ASAP
-We'll review the content ourselves and make an internal decision about whether we're going to pull it.
-If we decide to pull it, we'll follow the DMCA process for reinstatement when we receive your counter-notification of non-infringement.
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> service to say what i want. in 1776 that party
> owned a printing press in town
I'd love to see you cite a case that says you have a right to use my printing press (or ISP or TV station or whatever)whether I like it or not. Especially considering there are, in fact, cases that say the exact opposite.
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Nope. Not at all. As previous rulings have shown, if the gov't forces a corporation to take away free expression it can be ruled unconstitutional. Look at all the rulings where states tried to pass laws that forced stores to only sell video games to adults. That was still the state forcing private entities (stores) to do stuff, and those were found to be unconstitutional.
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In your example, the stores were legally prohibited from doing it. Please see my other posts (there are several) about this being an economic business decision by ISPs.
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Which is, for all intents and purposes, telling them that they need to remove the content.
I mean, what a HUGE FREAKING LOOPHOLE that would be. The gov't could just pass any restriction on free speech by saying "well, it's not a real restriction, but if you don't do it, we can sue you." That's at the end of a gun.
In your example, the stores were legally prohibited from doing it. Please see my other posts (there are several) about this being an economic business decision by ISPs.
Not at all. It is only an economic issues BECAUSE of the restriction on free speech put forth by the gov't.
As I pointed out in my comment, the courts have found similar restrictions unconstitutional. The example of violent video games is a perfect example. The laws said that if you did sell to minors you would get fined -- which by your (wrong) definition then makes it an "economic decision." But the courts found otherwise. Putting a huge threat of fine/legal liability on a private party for not restricting free speech is the SAME THING as restricting free speech.
There's simply no question here at all.
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This is an important distinction, because in the video game example the government actively fined the party. In the DMCA example, the copyright holder would be suing.
I'm just not convinced that an individual's right to free speech means ISPs have to host the user's content.
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And no one's saying that it does, either. So you can put *that* straw man away.
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No they don't. They often don't bother contacting the poster to say their content has been taken down due to a dmca request. How many times have I chatted with youtube account members, who have had videos taken down with no advance warning? Remember, these service providers have your e-mail address, and most people online these days check their e-mail regularly, I check mine at least once a day.
"it is only because too many people are anonymous or give false information on domain registrations".
Where in the wording of the DMCA does it mention anonymity? Or Domain registrations? Do you even know what a domain is? The DMCA concerns itself with people posting copyrighted content online. Often it is a person acting anonymously who puts up the content under an alias, but the DMCA doesn't care about that.
"copyright is contract law". Let's assume it is. Copyright was originally intended for the Progession of Arts and Sciences i.e. if an artist retained copyright of his own work, he would want to continue creating. However, the CONTRACT here is that eventually the copyright falls into the public domain, so that anyone can do what they can with the work.
Let's take the most infamous example of copyright ever. Mickey Mouse. Disney has successfully gotten copyright lengths extended over the years. Disney himself has been dead since 1966, but it will be decades at least before Mickey Mouse becomes public domain. Until then, the mouse is used to fund a single corporation. Anyone who wishes to write their own work featuing Mickey i.e. Progression of Arts, cannot do so.
Or how about computer programs? For example, I have a friend who is studying animation. If he wants to be a success in his field, he needs to use the latest and greatest programs, e.g, Adobe Creative Suite 4. However, the price of these programs is exorbitant. He has said he would pay for them if they were affordable, but alas, he is a poor student. Here, Progression of Arts and Sciences are restricted because of copyright.
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DMCA vs the Constitution
Good God I hope so! We need to chip away at copyright somehow and this would be a HUGE blow to the fat cats.
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http://en.wikipedia.org/wiki/False_dilemma
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How would this apply to forums?
If it ruled that the DCMA violates free speech and it is illegal for companies to limit free speech. Does that imply that my local motorcycle forum, indie music bbs, or this comment system cannot remove offending posts?
If I were to have gotten mad at moe's post above and called him various names (some true, some false, all very funny), would the mods of this site have the legal ground to censer my offending (at least to moe) posts? Now, I understand that moe would have the legal right to sue me for defamation of character, libel, and internet tomfoolery (covered by the DCMA, I think). However, if he were to send a nasty-gram to the site demanding that the post be removed, and if the courts ruled that outside of a conviction a company must protect free speech does the site have legal ability to remove or edit the post?
Taken one step further changes things. Suppose there was a hate group that gets on a diversity site. If it's protected, it's protected. I'm just wondering what happens when the pendulum swings the other way .It may not be so bad, but it will have consequences and it is worth talking about. Honestly, I'm in favor of more free speech (including moe's) than I am of the DCMA and it's heavy handed goals.
I think you get the idea of my question and I can't think of another way to insult moe in a passive aggressive way.
Thanks for taking the time to read this.
-chad
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But, you are right, third parties are not bound by the first amendment with their own property (ie: services/servers/websites)
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My post about our new American citizen was meant to be tongue-planted-firmly-in-cheek. Alas, I'm not as skilled in this "internet tomfoolery" as you are - that's obvious.
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Re: How would this apply to forums?
You are confusing two separate issues. It is illegal for the gov't to force companies to remove speech. It is not illegal for private actors to decide to remove speech themselves.
So those sites still can remove whatever they want. Where the problem happens is when the gov't tells them they have to do so.
if the courts ruled that outside of a conviction a company must protect free speech does the site have legal ability to remove or edit the post?
Again, this is not correct. The courts will never say that a site HAS TO protect free speech. The question is whether or not they can be compelled to block speech. Two very different things.
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Re: How would this apply to forums?
No. It just means that the government cannot punish you for not doing so.
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The headline to this article should have reflected that an academic has written a paper why she believes there is a legal problem.
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This particular argument has not been made in court, but nice try!
It is not at all surprising that she holds the views she does given her participation in the Berkman Project and with the EFF.
Yes, how dare she work with groups that support civil rights?!?
Honestly, I have no idea what your statement above means other than that you do not have time to understand the actual legal arguments raised because you don't like a particular group. How insulting.
However, the notice and counter notice provisions of the DMCA appear to comport with due process as construed by case law, and upon the filing of a counter notice the blocked content must be restored in the absence of the party filing the original notice pursuing resort before the courts.
Did you not read the paper? This is not true at all. The fact that the speech is automatically restricted for quite some time is massively problematic from a free speech standpoint.
The headline to this article should have reflected that an academic has written a paper why she believes there is a legal problem.
As I have pointed out to you in the past, when you run the site, then you will have the right to tell me what I should and should not write. Until then, I would suggest that such statements will be considered with the amount of respect they deserve.
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Berkman, EFF and other groups of like mind make very thoughtful points. Unfortunately, most of what they seem inclined to promote is 180 out from case law.
Yes, I am in the habit of reading law articles before commenting. My comments, however, tend to be very short and mild in tone. Perhaps Mr. Sydnor may choose to weigh in with his well-crafted prose.
As for the headline, it would be accurate to say that an academic paper has been published pertaining to the tension between the 1st Amendment and Title 17 of the US Code. How an observation that the article is talking about a single journal article could even remotely be construed as somehow disrespectul eludes me completely.
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Elcomsoft had nothing to do with the notice-and-takedown provisions, of which this paper focuses on, but about anti-circumvention.
Universal Studios also was about anticircumvention, not notice-and-takedown.
Eldred was about copyright extension, not the DMCA.
I'm curious why you would bring up these three cases which do not actually address this paper, unless you didn't actually read the paper.
Berkman, EFF and other groups of like mind make very thoughtful points. Unfortunately, most of what they seem inclined to promote is 180 out from case law.
First of all, that is untrue. Blatantly false. I mean, almost laughably so. But, it's really besides the point. You showed your typical true colors ("entertainment industry must be right!") by not engaging in any actual debate on the merits, but focusing instead on associations.
It's a disgusting smear tactic better associated with Fox News.
Yes, I am in the habit of reading law articles before commenting. My comments, however, tend to be very short and mild in tone.
You clearly did not in this case, because you seem to be smearing based on association and bringing up unrelated caselaw. But, you know that.
Perhaps Mr. Sydnor may choose to weigh in with his well-crafted prose.
Not sure what this has to do with anything?
How an observation that the article is talking about a single journal article could even remotely be construed as somehow disrespectul eludes me completely.
You made no "observation." You told me how I should title my posts. That is what I found disrespectful.
Again, you know this, but then play innocent. The more you comment here, the more amusing you get. For someone who insists you're just here "merely to provide info" it is clear that you have a massively skewed agenda. At least others with such agendas are willing to post under the names and stand behind their words. Yet again, I find it curious that you choose not to do so here, but on other sites, where you say disparaging things about me, you have no problem posting your full name, middle initial and all.
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Berkman et. al, as I noted, do make thoughtful points, but they seem predisposed to almost an absolutist view of the 1st Amendment whenever it butts up against copyright law.
Are there circumstances where the 1st Amendment would prevail? Of course, as so noted by Justice Ginsburg in Eldred. But, the DMCA hardly changes in my view the traditional contours of copyright law to the extent needed to mount a successful challenge.
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Really? Can you name a single other aspect of copyright law that allows you to stifle speech without any judicial basis?
It certainly seems to go against the contours of traditional copyright law by a long shot and run smack dab into a very serious First Amendment challenge.
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Free speech is important, but freedom of thought is even moreso.
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Politics
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@ moe
ya know that ACTA won't be rattified world wide
ya know you own toomuch debt
ya know its coming don't you?
AND like i say...copyright is about laziness plain and simple
it also is about the greed associated to the laziness.
95 years plus life of a 90 year old actor or musician or writer?
WHAT a joke
society gains nothing you take take take
and so does
your kids
and there grand kids.
heresa deal drop copyrights to 14 years and start givign life sentances to violators
you will see everyone then fall inline and go for tons a stuff at the 15 year mark and the 300000 morons that bought into ipads will buy your crap form 1 to 14 years
plain and simple
YOU SUPPORT LAZY GREEDY ECONOMIC TERRORISM on the world
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Re: @ moe
However, I don't agree with DMCA and copyright in their current forms. I'm just saying that I don't see a legitimate case for violation of the first amendment rights.
I think there are options in there - like the financial burden of actually bringing suit to defend yourself - but I don't think this exact method will bear fruit.
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oh and hten you will find it far easier to get treaties made
when the copyright terms are more sane its esy to get treaties made
but when people of other countries start questioning what they get for granting you the right thats RIGHT i said RIGHT
of copyright you begin to lose no matter what psycho bable you use, no matter how much lawyerness you try , it will fail.
YOU cannot live in a society where everything you do is controlled, its called tyranny no matter what you call it and yourselves and thats what also this begets.
remember remember the 5th of november
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Re: oh and hten you will find it far easier to get treaties made
I see no reason
Why the Gunpowder Treason
Should ever be forgot.
Guy Fawkes, Guy Fawkes, t'was his intent
To blow up the King and Parli'ment.
Three-score barrels of powder below
To prove old England's overthrow;
By God's providence he was catch'd (or by God's mercy*)
With a dark lantern and burning match.
Holla boys, Holla boys, let the bells ring.
Holloa boys, holloa boys, God save the King!
And what should we do with him? Burn him!
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all htis moeness is mooted by the simple fact
YOU MAKE me sick.
YOUR EVIL
YOUR LAZY
YOUR USELESS TO SOCIETY.
what have you contributed to society the fork?
ya so it can ram it up its ass at will great now we has a spoon
OH my what do we do we dont have money for the books on how to use this thing
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@53
I COULD put up
in my opinion all actors are gay fruit of the loop fairies that need o be spoon feed by society cause without this they would all die of starvation
my landlord can get bent on what he feels about it
its same for the net in fact in Canada the courts so far have agreed with me
linking is not illegal here nor are they to remarks so i could put up a flag pointing to another one that says your a stupid ass pedophile and you cant atm do shit to me
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Copyright abuse and the First Amendment
Even though I am an IP attorney, I try to stay away from copyright - as practiced under the DMCA, it is evil.
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dmca
laws and vote them out of office.
thank you
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um so that means you people are all for stolen music and art
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