Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
from the unrelated-to-creativity dept
Matt Schruers, over at the Disruptive Competition Project blog has a great post discussing the harm of the increasing pressure to abuse intellectual property law to do a variety of things that it was clearly never intended for. He calls this intellectual property's "immigration" challenge, noting that these uses have "at best, a tenuous relationship to 'promot[ing]... Progress.'" Why "immigration"? Plaintiffs are jumping into the copyright realm because it's more appealing than laws in other areas, even if what they're seeking to do has nothing to do with copyright. One popular misuse of copyright law these days is as an alternative means of dealing with revenge porn. You can understand why people gravitate to this tool -- especially when there appear to be limited other tools for dealing with such sites. But can anyone explain what using copyright to takedown revenge porn has to do with promoting the creation of new works?As Schruers notes, a big part of the issue is that copyright law comes with such a giant club in the form of statutory damages, which make it quite a powerful tool in censoring content:
What is happening is that plaintiffs are migrating into IP territory. Why? In a word: remedies. When testifying before Congress on this subject in July, I briefly noted that IP remedies are so attractive that they attract plaintiffs from other areas of the law. Rather than forum-shop, potential plaintiffs jurisprudence-shop. Claimants come to IP seeking redress for concerns that they cannot vindicate elsewhere. In the physical world, immigration is usually an indication that the destination is more attractive. In fact, a large amount of migration occurs in search of better conditions, or opportunities, and the anecdotal evidence suggests that this “remedy immigration” is no different.He goes on to discuss the use of copyright law against revenge porn and the recent "celeb leaks," noting that many of the photos in question aren't really good targets for copyright law, since many are taken by others (selfies are the exception, generally). He compares that to the Garcia case, in which an actress was able to take down the entire (controversial) "Innocence of Muslims" video based on a highly questionable copyright claim. He compares that to another case, Monge v. Maya Magazines, in which a celebrity sought to suppress images of her secret wedding (which she did not take).
When it comes to remedies, intellectual property is the land of opportunity. Robust injunctions, sweeping doctrines of secondary liability allowing recourse against parties other than the wrongdoer, statutory damages, and the availability of rapid DMCA takedowns all encourage plaintiffs to reframe various misdeeds (or perceived misdeeds) as infringement complaints. In a world with a general uniformity of remedies, there would be little reason for plaintiffs to seek out greener pastures, but when the remedies are unmistakably stronger in another area of law, plaintiffs have a natural incentive to reframe their claims to take advantage of them.
Both Monge and Garcia represent efforts to use post hoc IP claims to suppress information from the public. While the circumstances may make for sympathetic plaintiffs, no one seriously thinks the litigation is about authorship. This is why it is so odd that the weapon of choice to suppress content is a statute aimed, ironically, at encouraging publication.Again, one can (and many probably will) argue that they sympathize with the folks making use of copyright in this manner. Perhaps because they are troubled by the situations all of them find themselves in, and the lack of what they feel to be appropriate remedies. But it's quite clear that copyright in these cases is being used for things that have nothing to actually do with copyright. If we want our public policy to work properly, part of that has to involve making sure that we don't twist and turn laws to cover things they should not.
A big part of the issue, frankly, goes beyond just the remedies aspect that Schruers highlights. It has to do with the fact that copyright has long been viewed as a First Amendment work-around. The conflict between copyright and the First Amendment is undeniable -- in fact, whole books have been written about it. Historically, the courts have brushed off these concerns however, arguing that things like "fair use" create a "safety valve." But what's really happening here is that people are recognizing a tool that has been effectively blessed as a "legal" way to get around the First Amendment and use the law to censor content they wish to suppress. People can argue over whether or not it's appropriate to suppress that material, but everyone should at least be willing to admit that copyright should be the wrong tool for this sort of thing no matter what.
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Filed Under: celebrity nudes, censorship, copyright, first amendment, immigration, promote the progress, remedies, revenge porn, statutory damages
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The takedown notices are sent *after* the work has been created, so obviously it's not about incentivizing the creation of a new work. Your question makes no sense. It's like asking why anyone would sue for infringement of a work that's already in existence. Copyright isn't only about incentivizing new works, full stop. It's also about the control a copyright owner has in a work once it's been created. One would think you'd understand this simple point.
But it's quite clear that copyright in these cases is being used for things that have nothing to actually do with copyright. If we want our public policy to work properly, part of that has to involve making sure that we don't twist and turn laws to cover things they should not.
If the copyright owner has exclusive rights to distribution and reproduction, then enforcing those rights has everything "to actually do with copyright." If someone claims rights they don't have, then I agree with you. But you could say that about anyone claiming any right they don't actually have.
But what's really happening here is that people are recognizing a tool that has been effectively blessed as a "legal" way to get around the First Amendment and use the law to censor content they wish to suppress. People can argue over whether or not it's appropriate to suppress that material, but everyone should at least be willing to admit that copyright should be the wrong tool for this sort of thing no matter what.
So you think everyone should agree with you? I don't. If the content being suppressed is copyrighted, and the use in question is not protected by the First Amendment, then I see nothing wrong with using copyright to control the unwanted and infringing use of the content in question. Those exclusive rights do just that--they give the copyright owner the right to exclude others from making use the work.
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You have to actually own the copyright to exercise it. If you don't, then it isn't a copyright issue.
But then, your paymasters would not pay you if you didn't toe the copyright maximalists line of perverted interpretation. Go get your check.
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You have to actually own the copyright to exercise it. If you don't, then it isn't a copyright issue.
But then, your paymasters would not pay you if you didn't toe the copyright maximalists line of perverted interpretation. Go get your check.
I don't have "paymasters" who pay me to post on TD. Give me a break. I was referring to Mike's question about revenge porn. If the person sending the takedown notice owns the copyright, then that's an owner exercising their exclusive rights in a proper way, IMO. If they don't own the rights, then it's abuse and I agree with Mike.
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Your history of posts tell the story, and since you agree with Mike, just why do you keep challenging him on stuff you agree with?
See here for details.
https://www.techdirt.com/user/antidirt
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Your history of posts tell the story, and since you agree with Mike, just why do you keep challenging him on stuff you agree with?
I usually don't agree with Mike. I do challenge him frequently on the substance of his posts. But, sadly, Mike can't/won't defend what he writes, and he won't ever take an explicit position on IP. Hence my username. I'm "unimpressed and unconvinced" with Mike quite often.
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And...another reading comprehension fail.
Mike provides his positions, often, and these have been linked for you, and yet...
Now we know you lack integrity as well...or you are intellectually dishonest with yourself and others.
There are no therapists here, seek yours elsewhere.
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Does Mike think there should be any exclusive rights for authors or inventors? And, more importantly, why? Let's see the answer to that.
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Seek help.
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Oh...I get it...you're THAT troll. Ok then, auto-report from here on out. Makes my life easier anyway.
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Thanks for admitting you'd rather abuse the "report" button than engage in a substantive discussion. Mike must be so proud!
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And yet I'm here having a nice substantive discussion with some of the other commentators. You should join us!
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*clicks report*
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I find it funny how you, after spending months of posting nothing but insults and onomatopoeia, are now (again) trying to worm back in as though nothing happened.
You abused your privileges, and now you're getting what you deserve.
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And yet I'm here posting and engaging others substantively. Maybe one day you'll do the same.
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Ha, ha. You actually think people are fooled into thinking you're trustworthy.
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If you think I'm going to agree to touch a pile of shit because it told me it was being a little less shitty, you're delusional.
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A victorious veteran of the War on Ring Around the Collar, all but forgotten during the War on Drugs and the War on Terror, hoping to regain relevance in the War on IP Abuse....
"This comment has been flagged by the community. Click here to show it."
- The Lemon-Fresh Borax for trolls!
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I'm an individual who posts what he honestly believes. But thanks for the non-substantive non-reply.
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I expect my comments to be judged substantively and on the merits. I'm sure some people can't get past the avatar. I'm probably not interested in what those people have to say anyway.
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Which they were and thus were being reported.
If you had better merits than your asinine repeated falsehoods of Mike not making his position on copyright clear, it might look differently. OTOH, you seem to be too much of an asshat all around that most likely few would bother. Tough luck.
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Even when America was first founded and this very ideal brought forward people still tended to believe in this shit.
Innocent until proven guilty is very hard for people to understand... very hard.
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What burden of proof? It's a takedown notice, not a lawsuit. I don't see how it's unconstitutional. Could you explain?
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Seems legit. Oh, wait...
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Since it's an action authorized, enabled, and enforced by the US government, it's effectively the US government acting through a proxy. Therefore constitutional protections should apply.
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I'm still waiting to hear which part of the Constitution it supposedly violates.
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It look to me like the law was designed the way it was with the specific intention of bypassing constitutional protections.
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It look to me like the law was designed the way it was with the specific intention of bypassing constitutional protections.
Let's say I upload a video to YouTube, and Sony issues a takedown notice which YouTube acts on. Which party is the government actor, Sony or YouTube? Or is it both?
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Without the DMCA, YouTube would take the video down because, now with notice and thus knowledge of the infringement, it would face contributory liability (knowledge + material contribution). In that case, I don't think anyone would contend that YouTube is a government actor. Complying with the law to avoid liability doesn't make them one.
But I have trouble seeing how the DMCA changes this. YouTube would still take the video down lest it be liable for contributory infringement. The DMCA doesn't change things. All it says is that if YouTube takes the video down, it's liability will be limited. But that same limitation on its liability exists without the DMCA.
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Dumbass. They are both acting within the scope of the law set BY THE GOVERNMENT. The authority to be able to issue that takedown is given BY THE GOVERNMENT. Just because someone else *uses* a law doesn't mean its not a constitutional or governmental issue. Or, do you really think that this is ONLY the case when its JUST the government, directly, doing the prosecuting? If so, please go back to law school, or google, or anywhere and get educated on the basics of applicability of law and rights enumerated in the constitution.
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Why am I not surprised this was marked "insightful." Sigh. Not everyone who acts "within the scope of the law" is a government actor. Give me a break. When you file your taxes, are you a government actor? Of course not. When I drive on the right side of the road and under a certain velocity, am I government actor? Nope.
People could and did send requests to service providers to have materials taken down before the DMCA was passed, and service providers could and did take down materials upon request. The DMCA didn't create some new-found authority to do these things. And nor does the DMCA mandate that rightholders or service providers must do these things. All it says is that, if a rightholder sends a notice meeting certain conditions, and if the service provider takes the complained-of material down, then the service provider's potential liability is limited.
The DMCA provides a potential benefit to the service provider if it chooses to take a particular action. That's it. I don't see how that makes the service provider a government actor. The tax code gives me a tax benefit if I have another kid. That doesn't mean I'm a government actor when I have another kid. Have you actually done any research whatsoever on the state actor doctrine? I don't get the sense that you have.
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Again, go google how laws and the courts work. You are conflating 2 or 3 differing actors and benficiaries of laws and saying they are all equivalent. They arent. You, when you pay your taxes, are not a "government actor" in the same sense as someone who is wronged and uses the law for redress. You are throwing everyone who has any interaction with the government from any side together in a giant straw-man and then counter-arguing your own incorrect point as if *we* said any such thing.
You are wrong. Learn how this stuff works, then come back and we can have an actual discussion about the merits and limits of copyright law with regard to its possible suppression of speech.
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You are wrong. Learn how this stuff works, then come back and we can have an actual discussion about the merits and limits of copyright law with regard to its possible suppression of speech.
Since you're so learned in the law, can you walk me through the state actor doctrine analysis? Thanks.
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Because as the other posted already said, you're too dumb to get how wrong you are. D'uh.
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Don't feel too bad; you and your submissive partner Whatever can fire up TOR, make 50 new IP addresses and upvote yourselves into oblivion.
Oh, but wait - using TOR would mean you had something to hide, because you're a filthy pirate. That's what you believe!
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You, Karl and I had a lengthy discussion about this awhile ago and I know that you believe (incorrectly IMO) that DMCA takedowns cannot violate the Constitution because they are not from a government actor. Karl and I disagreed because regardless of who actually sends the notice it's still backed by the might of the Federal government.
In this case we are talking about something completely different though, we are talking about takedowns issued by those who do not hold the copyright in question. Since neither party is actually the copyright holder it would never be established that a copyright violation occurred and the speech would remain protected by the First Amendment wouldn't it?
It seems to me that in this type of situation it's most certainly a First Amendment violation by using the power of the government to quash protected speech.
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In this case we are talking about something completely different though, we are talking about takedowns issued by those who do not hold the copyright in question. Since neither party is actually the copyright holder it would never be established that a copyright violation occurred and the speech would remain protected by the First Amendment wouldn't it?
It seems to me that in this type of situation it's most certainly a First Amendment violation by using the power of the government to quash protected speech.
I don't agree that the sender of a takedown notice is a government actor. No court has ever addressed the issue, and I assume it's because the argument is so bad that no one's ever made it--not even the EFF, who takes a broad view of such things. But let's assume that the sender of a legitimate takedown notice is a government actor. I'm not sure that would also make the illegitimate sender of a takedown notice a government actor, since then, they would only be purporting to be acting under color of law--they wouldn't actually be doing so. I'd have to give that one some more thought, though.
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Perhaps this is why the penalty of perjury was included in the language for the laws regarding DMCA takedowns. It could be that Congress realized that if the sender wasn't the copyright holder, then DMCA notices could easily run afoul of the First Amendment since the speech would remain protected. I'm going to have to do some research on this myself.
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Home made nudie shots and pr0n videos fall into an interesting legal issue, which does in fact end up in the copyright arena, that of the rules related to USC 18 sections 2256 and 2257, notably that of proving that a model appearing is of legal age. It's a requirement for the work to be published. One of the recent "leaked" celebrity iphone things including images purported created when the girl was underage. That is pretty ugly.
It doesn't add up to a copyright claim however, which is still a different issue.
The question of "who holds the copyright" in these cases is an interesting one. If they came off of the plaintiff's phone or home video camera, it's one indication that they may have some rights. Now, admittedly, there is the whole issue of who actually shot the image. That generally can be answered in a type of "work for hire" or "helping out", where as the person shooting is doing so at the request of the model, not the other way around. The lack of the model release / 2257 documents would suggest this to be true, and thus would make the model also generally the copyright holder. They may not have pushed the button - or may have with a timer, we don't don't know.
What most people don't know is that all of those "stolen" celebrity sex tapes that show up (mostly being sold by Vivid from LA) are not at all stolen. Vivid can't sell them without model releases, so each one of those "offended" celebs are in fact making bank off of sales and usage rights from those videos.
Now, if someone issuing a takedown is not the copyright holder and it can be shown that they knew this up front, then they are the perfect test case for the false reporting parts of the DMCA laws. That nobody is arguing it too hard suggests that the threshold for proof is too high, or that it is felt that it would be hard to show ban intentions - they may feel they have a valid copyright claim ("I never signed the model release, so he can't claim copyright on my image"), which would make proving the false claim status hard.
I also believe that when it comes to things like stolen / hacked content such as the celeb nudes, we see the problems inherent in the notice / counter notice / take down system, which puts the offender (the one posting images that they know they have no rights to) into a special "innocent" status which they do not deserve. Copyright and DMCA in this case allow them to walk away without any legal implications, as they can just say "oops" and have little or no direct responsibility. Everyone is just an "innocent host" no matter their intent.
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Home made nudie shots and pr0n videos fall into an interesting legal issue, which does in fact end up in the copyright arena, that of the rules related to USC 18 sections 2256 and 2257, notably that of proving that a model appearing is of legal age.
That's not a copyright issue, section 18 is the criminal code, yes? Chapter 110 is abuse of minors or some such. Copyright is in USC 17 if I'm not mistaken.
I also believe that when it comes to things like stolen / hacked content such as the celeb nudes, we see the problems inherent in the notice / counter notice / take down system, which puts the offender (the one posting images that they know they have no rights to) into a special "innocent" status which they do not deserve.
It does no such thing. If someone wants to sue the uploader, they're still perfectly free to do so. The DMCA protects 3rd parties from liability for actions of other people. But you already knew that.
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That's why he said that... it's tempting, and lots of people don't resist the temptation.
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Actually, yes.
People may reconsider taking such pictures if they think there is a possibility that they will be made public. People are more likely to create such pornographic works if they can be assured that it can NOT be placed on revenge porn sites, or otherwise publicly reproduced.
On the other hand, the copyright clause does specify "useful Arts". One could argue that pornographic pictures are not useful, maybe?
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Copyright is about getting works into public, it's not there to encourage people to create works and then keep them private.
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I was reading Mike's question as being about how does it incentivize the copyright owner to create a work that already exists--and that obviously makes no sense. Your read is probably better, and I agree that by letting people know they can control the uses of their photographs, this would incentivize them to take photographs. But that whole line of thinking turns on the notion that copyright is *only* about incentives to produce. I don't think that's true, hence automatic copyright that subsists whether the author is incentivized by the rights or not.
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That what the Framers originally thought when they included in the Constitution, isn't it? Just because it's gotten twisted into something else along the way doesn't make it correct.
I don't think that's true, hence automatic copyright that subsists whether the author is incentivized by the rights or not.
And you have just put forth a compelling argument as to why copyright should go back to opt-in. If automatic copyright isn't an incentive for the creation of new works, then it should be removed from copyright law to comply with the Copyright Clause.
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And you have just put forth a compelling argument as to why copyright should go back to opt-in. If automatic copyright isn't an incentive for the creation of new works, then it should be removed from copyright law to comply with the Copyright Clause.
I think the Framers held a plurality of views, and I don't read the Copyright Clause as mandating that there can only be copyright to the extent that it incentivizes new works but no further. Congress gets to decide what promotes the progress, and their hands aren't tied by some narrow reading of the Clause as copyright opponents would like them to be.
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I do agree about plurality. Beyond promoting progress and the useful arts, copyright was always meant to be a two way street between corporate and public interests as well. Business interests get something beneficial out of it (protection for a limited time) and in return so does the general public (via the pubic domain).
Sadly, we keep seeing said business interests attempting (and usually succeeding) to shift this mutually beneficial 'contract' so that it mostly favors their party. Part of what makes this particularly sad is how copyright maximalists are unable to see how the public domain can actually help them in the long run, and in a number of different ways. The things Disney has done and profited greatly from is only a small part of it as it's reach goes well beyond basic entertainment.
Proof of this is how certain industries, often (but not limited to) those surrounding entertainment, always have to be dragged kicking and screaming from the past into the present. It is a matter of historical fact that in pretty much every single case, they have profited greatly by this forced change. I feel it's their fear of the future and thus the unknown, especially as it relates to economics, that is to blame.
This time around, however, we're seeing stronger than usual effects from too much wealth, greed, ego, and undue influence in government via means that could (and should) be considered bribery. It's allowed the industry to root themselves more firmly in the past than ever before. In a truly free market, where everyone played fair and corruption wasn't so rampant, they would have already changed their strategies by now from having been forced into finding new ways to monetize their goods.
I firmly believe there is a path where the public and industry can both continue to profit the way they're supposed to, provided copyright laws remain fair and serve both like they're also supposed to. Part of what Techdirt is about is promoting the search for such paths and it's going to take someone much smarter than you or I to find it. I wonder if they'll win the Nobel Prize for economics? They should.
Ok, so maybe I'm an idealist and there is no ideal solution in which everyone involved would benefit and live happily ever after, but does that really mean we have to keep having a go at each other as we have been for the past decade or so? All it's done is generate a ton of animosity on both sides, so much so that the solution could come along and end up being ignored/missed entirely given just how many people there are focusing on entirely the wrong thing. Sigh, human nature.
What I do know for absolute certain is that so called "pirates" (i.e. not for profit file sharers) aren't simply cheapskates who want it all for free. Most of us are aware of what it takes for our favorite forms of entertainment to be made (fantasy, sci-fi and post-apocalyptic genres in my case - just say no to reality shows lol) and we really do want to support those whom make these things a reality for us. Even the most cash strapped among us do spend what little they're able to. We spend more on entertainment than the average consumer and this shouldn't even be in contention by now as it is a well proven fact (Google it).
We are not the enemy, so please stop trying so hard to turn us into one! I also don't want to hear about how you can't compete with free because it's already been done loads of times. My personal favorite was AllOfMP3. If you hit the right price and deliver the right content in just the right way and in a timely fashion, people will buy it up like crazy. People prefer to buy legal alternatives because it means not having to continually stress out over the legality of it all. Get all those things wrong, however, and folks will prefer to take the risk.
For sharers, it all boils down to risk versus reward pretty much. The copyright cartel has focused almost entirely on making the risk so high that nobody will file share ever again. The problem with this is that it doesn't work as has been proven many times over. Even the death penalty won't stop anyone. Get all those things I mentioned before just right though (price, quality, timely, etc), and I guarantee you'll not only make a fortune, but end 99.9% of piracy almost over night. If only ego, wealth, greed and undue influence in government weren't all feeding our nature and desire to fight and the copyright maximalists could see such simple, basic reasoning for the truth it bears... sigh.
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Exactly right. If we want revenge porn to be illegal, we should make revenge porn illegal.
If we improperly rely on copyright in these situations, then the person who does not possess copyright on the image (because someone else took it, perhaps) will have no recourse.
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If somebody else is doing the filming, i.e. the ex-boyfriend jerk, according to copyright he has full control over that porn. So you have to say copyright must be made irrelevant when passing laws to take the revenge porn down in order to look the least bit sane.
And if the victim had the copyright that also would likewise be irrelevant.
It doesn't matter either way. And it is ridiculous of copyright believers to say that copyright should be involved at ALL, along the lines of "we wouldn't be able to do the right thing here if it wasn't for copyright". Total babble. As well as all the other irrelevant things they try to tie in the strictly economic theory of copyright such as plagiarism, trademarks, quality assurance, branding, defamation, libel and - putting it bluntly - blasphemy via remixes.
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This is the sort boneheaded move that fanboys like Whatever regularly celebrate.
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