Copyright As Censorship: American Law Institute Uses Copyright To Stop Discussion Of Controversial Publication Prior To Vote
from the bad-news dept
The American Law Institute, among other things, publishes various "Restatements" of law, which it describes as follows:
Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court. Although Restatements aspire toward the precision of statutory language, they are also intended to reflect the flexibility and capacity for development and growth of the common law. That is why they are phrased in the descriptive terms of a judge announcing the law to be applied in a given case rather than in the mandatory terms of a statute.
Courts frequently rely on these "Restatements" to better understand the state of the law today, including how various courts have ruled on the law (so-called "common law.") For that reason, the Restatement process can get fairly controversial (including an ongoing controversy over the Copyright Restatement, which legacy copyright insiders are falsely claiming is somehow biased against legacy copyright companies). Leaving that particular controversy aside, it does appear that the ALI itself may need a refresher course on how copyright works, because it's currently abusing copyright law to try to prevent open discussion about another controversial Restatement.
ALI's proposed Restatement of the Law of Consumer Contracts has similarly been beset by vociferous criticism from a variety of different parties. There's a vote pending on the latest draft next week, on May 21st at the ALI's annual meeting. Georgetown law professor Adam Levitin posted a draft of the proposed Restatement on Dropbox so that his followers could read it and understand what was in it prior to the vote.
Apparently, the ALI had other thoughts in mind and, after first threatening Levitin, it issued a DMCA takedown to Dropbox to remove the file. It did this after first emailing Levitin and demanding he take it down and then (falsely) insisting that "fair use is excerpts" and saying that it relies on its copyright "to pay the light bill."
After Levitin told them he believed it was fair use, ALI went ballistic. As described by Public Citizen's Paul Levy:
Unfortunately, ALI upped the ante in ways both petty and effective. First, the petty: without any notice or due process, it disabled Levitin’s access to the ALI web site. ALI’s bylaws allow ALI officials to suspend members only for non-payment of dues; members can only be suspended for good cause or for extended nonparticipation in ALI work, and then only by action of the full ALI Council. When the suspension was challenged, ALI restored his web site access fairly promptly.
But then there's the second bit:
But its more effective response was to serve a DMCA takedown notice on Dropbox. As a result, I cannot link to the Dropbox so that readers of this blog post can judge the controversy for themselves. Although we have served a counternotice, the delays associated with the DMCA notice and counternotice procedure mean that, unless ALI voluntarily drops its takedown complaint, the Tentative Draft will remain off Levitin’s account until after the Annual Meeting next week. As I have argued previously, the DMCA gives the copyright holder the equivalent of a TRO, without any notice and indeed without any independent judicial consideration. It is a statute that is ripe for change.
This is a key point that we have argued over for years. The notice-and-takedown provision of the DMCA raises serious 1st Amendment issues, in that it acts as a way to use the power of the state to silence speech without any judicial review. That would seem to be unconstitutional.
Levy also sent a letter to ALI explaining why it is wrong concerning its understanding of fair use and is making a big mistake in taking down this discussion draft. Levy goes through the four factors of fair use, which go way beyond a simple "is it an excerpt" test that ALI seems to think:
First, the purpose of his use falls squarely within the statutory definition of fair use, because the purpose of the posting is criticism: to identify the many substantive flaws in the Tentative Draft and the reasons given for its creation. Moreover, the posting is for entirely noncommercial purposes. In addition, the criticism relates to issues of intense public interest. "The scope of the fair use doctrine is wider when the use relates to issues of public concern." National Rifle Ass'n v. Handgun Control Fedn. of Ohio, 15 F.3d 559, 562 (6th Cir. 1994), citing Consumers Union v. General Signal Corp., 724 F.2d 1044, 1050 (2d Cir. 1983). Hence, the first factor strongly favors a finding of fair use.
Second, the copyrighted work is a set of legal standards that are intended to guide judicial decision-making as "'authoritative' sources on the meaning" of the common law. See Code Rev. Comm. v. PublicResource. Org, Inc, 906 F.3d 1229, 1248 (11th Cir. 2018). Regardless of whether the Restatement is or is not copyrightable as a statement of "the law," any copyright protection for this sort of work is fairly thin. Consequently, the second factor is at best neutral.
Turning to the third factor, in an email to Professor Levitin, you suggested that your main reason for contending that the online posting of the Tentative Draft is not fair use in that "fair use is excerpts." That misperception is common, but incorrect. "'[S]uch copying does not necessarily weigh against fair use' where 'copying the entirety of a work is . . . necessary to make a fair use.'" Stern v. Lavender, 319 F. Supp. 3d 650, 682 (S.D.N.Y. 2018), quoting Bill Graham Archives v. Dorling Kindersley Ltd, 448 F.3d 605, 613 (2d Cir. 2006). Rather, "the extent of permissible copying varies with the purpose and character of the use." Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013), quoting Bill Graham Archives. Here, the purpose of the use is to rally opposition to the prospective adoption of the entire Tentative Draft, to explain why the draft as a whole is problematic, and to allow members to understand why they should vote no and why readers should be contacting members whom they know to urge them to vote no. Only the posting of the entire draft could properly serve that purpose; indeed, posting selected portions could lead to accusations that the "vote no" campaign was dishonestly portraying the document. Consequently, the third factor does not support a conclusion of infringement.
Finally, considering the fourth factor, because the use is noncommercial, ALI would have the burden of showing likelihood that the use will cut into sales. Assn. of Am. Med. Colleges v. Cuomo, 928 F.2d 519, 525 (2d Cir. 1991). Your emails to Professor Levitin suggest that your concern is that the easy availability of the Tentative Draft may cut into sales that provide the main revenue to support the ALI enterprise. But, so far as we are aware, ALI sells final Restatements and other final statements, but not Tentative Drafts. Looking through the Publications section of the ALI web site, https://www.ali.org/publications/, I did not find any Tentative Drafts listed for sale. Draft documents are apparently available on Hein Online and Westlaw, and perhaps ALI gets a cut of those fees; but at the present time, the latest version of the prospective restatement that can be found on Hein Online and Westlaw is the discussion draft from 2017. Posting the 2018 Tentative Draft will not cut into those sales. Again, Professor Levitin planned to take down his posting after next week's vote. As a result, his action will not compete with sales of the final version, even if the Tentative Draft is approved without any changes.
And, of course, Levy notes that if the Restatement is voted down, then there won't be anything for ALI to sell in the first place, so it won't be creating an adverse impact there either.
So, yeah, perhaps ALI should spend some time reading the ALI's proposed restatement on copyright as well, as I'd imagine there are a bunch of fair use cases that it seems wholly unfamiliar with.
But there's a larger point in all of this. We've pointed out over and over again that copyright is frequently used for censorship purposes, and this seems like yet another clear example. This is not a product for sale. This is a discussion draft of an important issue that it would help for more ALI members to have access to as they decide how to vote. ALI's decision to pull it down via a DMCA takedown is shameful... but effective in censoring the discussion of the draft Restatement.
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Filed Under: adam levitan, censorship, consumer contracts, copyright, dmca, fair use, paul levy, restatement of the law of consumer contracts, restatements
Companies: ali, american law institute, dropbox
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Private organizations
Well, they are a private organization, so they can do what they want with their material.
Right? RIGHT?
Just like FB, Twitter, and YouTube. They don't have to let you see their own private stuff, or host anyone's comments on their platform. RIGHT?
That's the stand now, right?
Oh, also, it's not censorship, because that's only the government restricting free speech.
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Re: Private organizations
When their work product is to become a part of the legal system, then like those who write standards that are required by law, don't have the same protections that others might.
Then there is the question of whether the restatement is actually reflective of the actual law and the intent of the legislative body that created that law. If ideology creeps in, it is less effective, especially if that ideology is then used by a court to color its decisions.
Also, there is a difference between government censorship and private censorship. The former is illegal, the latter is not. Because of the relationship between the ALI and the courts, I believe they are more along the lines of the former, rather than the latter, even if they are not elected or appointed to any governmental post.
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Re: Private organizations
Well, they are a private organization, so they can do what they want with their material.
Right? RIGHT?
You seem to have hilariously conflated copyright with FB's right to not publish.
FB can kick you off FB for being as ass.
FB can not stop you from publishing materials, documents or going other locations to discuss FB.
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Re: Private organizations
Just like FB, Twitter, and YouTube. They don't have to let you see their own private stuff, or host anyone's comments on their platform. RIGHT?
This is not about them hosting other people's stuff. If it were, you'd have a point. But it's not. So you don't.
That's the stand now, right?
Only if you're willfully misrepresenting the situation. As you are.
Oh, also, it's not censorship, because that's only the government restricting free speech.
It is the government restricting speech, by use of its laws, the DMCA, to set up a non-judiciary form of a restraining order on speech. But you knew that.
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Re: Re: Private organizations
Copyright law has always worked that way, even without the DMCA. Once a company is on notice, they face a lawsuit for not removing the content. What the DMCA does is allow the platform to restore the content without having to go to court.
Ask any lawyer and they'll tell you this. This "extrajudicial" policy (of notice conferring liability) is over a century old.
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Re: Re: Re: Private organizations
Ask any lawyer and they'll tell you this. This "extrajudicial" policy (of notice conferring liability) is over a century old.
Hmm. Paul Levy is a lawyer. He seems to think this is an issue. Wendy Seltzer is a lawyer. She wrote a whole paper on how this is a problem:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577785
The issue is not, as you suggest incorrectly, about the "notice," but about the function of the safe harbors to act in a manner that effectively creates a TRO by strongly incentivizing taking content down to avoid liability. That is different from being "on notice".
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Re: Private organizations
Oh, also, it's not censorship, because that's only the government restricting free speech.
Also, copyright Is Government Censorship, how do you not understand that preventing you from copying or publishing a document under force of law is not a government action?
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Re: Re: Private organizations
"Also, copyright Is Government Censorship, how do you not understand that preventing you from copying or publishing a document under force of law is not a government action?"
I'd argue that Copyright is what censorship would be if it was in private hands. Two names for the exact same type of information control.
And as turkey, Germany, russia and the US have demonstrated, copyright serves excellently to circumvent all the restrictions imposed on mere censorship.
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A company choosing not to host/publish specific content is not the same thing as having content is chose to host taken down by an extrajudicial system of law where an accusation equals guilt and not complying with the not-signed-by-a-judge order means the company also faces legal liability.
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Is Masnick a lawyer?
The DMCA is fine. Perhaps a challenge to the delay of restoring after a counternotification is in order, however.
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Re:
How about they get the take down after adjudication in a court of law? If there is a question of monetization, then any funds earned after the request could be held in escrow, until the judge finds one way or another. Oh, and lets add the requester pays the legal fees of the 'accused' when and if they lose.
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Re: Re:
Even without the DMCA, the platform still has to take down the material once put on notice, or they'd be sued, and in that scenario there is no counter-notification.
That would actually keep the content offline longer.
Don't let that stop your argument, however.
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Only if said “notice” is a legal order signed by a judge that says “this content needs to come down”. Saying it needs to come down before a court has ruled as much is the kind of extrajudicial notice-and-takedown system with “guilty until proven innocent based on a mere accusation” rules that we already have — with the DMCA.
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Re:
Only if said “notice” is a legal order signed by a judge that says “this content needs to come down”. Saying it needs to come down before a court has ruled as much is the kind of extrajudicial notice-and-takedown system with “guilty until proven innocent based on a mere accusation” rules that we already have — with the DMCA.
That's not how it works, even without the DMCA: once they are put on notice, they can be sued if they ignore the warning. This is century-old law, about as black-letter as it gets.
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Re: Where’s my subpoena bro?
I was put on notice by you about a century ago.
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That really does not make the point you think it does.
The DMCA’s NaT system works as follows if taken all the way: Someone sends a takedown notification to a platform, then the platform takes down/removes access to the content, then the person who posted said content files a counternotice, then — and this assumes whoever sent the takedown is the legit copyright holder — the “plaintiff” in this situation files a lawsuit seeking to have the content ruled infringing and make the “defendant” pay damages for their infringement.
Can you pick out the one spot in that chain of events where the system falls apart? Never mind, I will spoil it for you: It is the part where the platform takes down/removes access to content on a mere accusation. Rather than take it down once they receive a full-throated legal order after the content has been ruled infringing, the platform must take it down once someone accuses — and only accuses — the content of infringing upon a copyright or risk legal liability. A platform taking down what could be content protected by Fair Use before a court can rule on the issue is censorship backed by the power of U.S. law (i.e., the government).
And as I said, this whole explanation assumes whoever sent the takedown is the legit copyright holder. Damn near anyone can file a DMCA claim under a pseudonym to get content taken down; if the “defendant” does not file a counternotice or the platform does not do its due diligence in confirming the information on the claim, content could be taken down by non-copyright holders for no reason other than the platform saying “we don’t need this headache”. And given how often abuses of the DMCA are brought before a judge, let alone punished by one, the abusive takedown filer could continue their plan until they finally get caught lying.
Now take all of that — every last word — and apply it to defamation law. How do you justify supporting a system that anyone could abuse to censor legally protected speech because all it did was hurt their feelings?
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Re:
Someone sends a takedown notification to a platform, then the platform takes down/removes access to the content, then the person who posted said content files a counternotice containing information that allows the one who send the original notice to identify them...
You left a bit off that's bad enough when it comes to just copyright, but would be much worse if the same system were also applied to the field of defamation, in that in order to defend yourself you must identify yourself, which would make it trivial to force those that criticize someone to either have said criticism removed or unmask themselves, which could be problematic for any number of reasons as a number of articles on TD alone can attest to.
DMCA abuse is bad and frequent enough, If someone wants to claim that the ability to silence critics and/or unmask them on nothing more than accusation wouldn't be abused, heavily, they aren't fooling anyone but themselves.
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Re: Re:
"That's not how it works, even without the DMCA: once they are put on notice, they can be sued if they ignore the warning."
Not really, no. Before the DMCA there were numerous provisions in place protecting middlemen.
Hence why so very many newspapers walked unscathed from lawsuits which if the DMCA had applied to them would have resulted in them being able to post only a one-pager with the word "REDACTED" on it.
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Re: Re:
How about the **AA's stop stealing from the little guys...
When a DMCA request, or just a request for "monetization" comes in, perhaps the funds should be put in ESCROW until a court decides who gets the money. The current process of the big guys being able to 'claim' someone else's work as their own, and STEAL that pages ad revenue, until the issue is resolved (at which time the one who had their revenue stolen receives nothing, except their page back (if they are lucky), while the big guys get to get fatter off the little guy.
Sure it's only .50-$10 a day per site, but if you steal 100 or 1000 ad streams, it adds up quickly.
NEW IDEA for a 'Canary' type report:
All major platforms should provide reports showing how much 'diverted ad revenue' there was and how much and from how many users the revenue was taken, to which users and in which amounts it went.
This would probably be very illuminating, with thousands of sites on the 'had ad revenue taken' side of the report and 5-10 corporations on the 'took ad revenue' side of the report.
Is this $5 a year, $5000 a year, $5 Million a year, or $>50 Million a year? just how much are the big guys stealing from all the little people? Won't you think of the little people?
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Re:
Is Masnick a lawyer?
Are you a lawyer?
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Re: Re:
Is Masnick a lawyer?
Are you a lawyer?
I'm not giving detailed legal analysis that requires a law degree.
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Re: Re: Re:
Are you a lawyer?
I'm not giving detailed legal analysis that requires a law degree.
Obviously then you'd understand that you don't need to be a lawyer to give this sort of commentary.
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Re: Re: Re:
But you are saying that he needs to be a lawyer to discuss. What are your credentials that qualify you as an expert in the field such that we should listen to your assertion that this does, in fact, require a law degree?
What authority do you speak with to say that only lawyers can say anything?
After all, if he needs to be a lawyer to be listened to, you need to be a lawyer to be listened to.
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Re: Re: Re:
Gods no. If your lawyering was anything like the “legal analysis” you offer here, you would have be disbarred decades ago.
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Re: Re: Re:
Just endless bitching about Section 230, right?
Have an Article 13 vote.
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Re:
Most definitely not a lawyer.
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Re:
"Is Masnick a lawyer"
I'm gonna mak this idiotic question as funny because of the reasons others already pointed out.
Reminds me a bit of those moronic creationists asking "where you there" when it comes to the Big Bang Theory looking all befuddled when asked if they were there during god's alledged creation week.
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Re: Re:
I can't be the only one to think that the perfect response to the stupid 'were you there?' question would be to simply say that yes, in fact you were there, and the science is pretty spot on so far, as any objection would simply allow you to turn the boneheaded 'question' back at them to show how flawed it is.
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This organization re-writes the law, do congressional members get to vote on the changes?
Private orgs write the laws and private orgs re-write the laws,
wth does congress do?
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Re:
Fund raise and politic.
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Re:
This organization re-writes the law, do congressional members get to vote on the changes?
They're not rewriting the law. They're summarizing the way courts have interpreted the law.
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Re: Re:
And no unpaid intern would ever slip a single word in, like a "not" , changing the actual application of the law in the final printed version, now would they (since they won't let us read it before the vote, how can we be sure?) ???
It's always an unpaid intern, that way they can take the bribe money and not be held liable since they are not actually an employee with the authority to do what they were doing (aka they didn't have the authority to do it, so if they do, it has no authority, until it's published and voted on, then it doesn't matter who wrote it (it could have come straight from Putin at this point and once voted on it would still be the accepted understanding of the law).
And we wonder why all our bases are belonging to them...
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Re:
"wth does congress do?"
Collect the money and offer their back for reciprocatory backscratching.
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we need to make a business..
A DMCA warehouse of info..
That services can apply and pay for..
Then WE, do the work of who owns what, and all the CR data needed to know WHO has rights to say anything about certain works..
This could also ride wiith whats happening in the EU...
WOW, can you see the money flow in, as corps use the service to tell if they NEED to take down CRAP DMCA..
Yea team.
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Given police misconduct, prosecutorial misconduct, statutes numerous enough to be on par with the cardinality of the reals and the most recent attempts to prevent people from even finding out what the law is, what's the point of making any effort at all to be law abiding as opposed to, say, just doing whatever and making the effort to cover your tracks in case "whatever" is illegal?
I'm pretty sure that if I followed anyone around for just a day, I would find some law that person had broken -- not that I'd be certain given the trend toward privatizing of the law.
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Re:
Give me six lines written by the most honest man in the world, and I will find enough in them to hang him.
Now updated for the 20'th century.
If I follow around the best driver for six miles, I will find at least one law to penalize him for...
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Re:
"I'm pretty sure that if I followed anyone around for just a day, I would find some law that person had broken..."
http://ulrichboser.com/how-many-felonies-did-you-commit-today-an-interview-with-harv ey-silverglate/
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Not sure what the problem is since the ALI has posted on its site a complete copy of the draft document that is available for review by the public at large.
As for fair use, criticism involves reference to one or more specific aspects of a document such as this. These aspects being less than the totality of a document, it is difficult to visualize a legitimate need to reproduce the totality of a document.
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Re:
Not sure what the problem is since the ALI has posted on its site a complete copy of the draft document that is available for review by the public at large.
They only did so today after this criticism went out...
As for fair use, criticism involves reference to one or more specific aspects of a document such as this. These aspects being less than the totality of a document, it is difficult to visualize a legitimate need to reproduce the totality of a document.
If the purpose is to enable discussion and criticism of the draft, it helps to have access to the entire draft and, as detailed in the letter, not posting the entire draft would lead to accusations of taking things out of context. The courts have been quite clear that fair use can cover entire works when that is necessary for the fair use... as is the case here.
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Re: A colander perhaps?
That container you’re using to carry water for ALI is more hole than bucket bro. Maybe next time try not to be such a transparent shill.
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First rule of Draft Restatement
The first rule of Draft Restatement is nobody can restate the draft.
Second rule of Draft Restatment... there is no draft restatement.
Jedi handwave ~ These are not the draft restatements you are looking for...
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On paper vs in practice
On paper this is a pretty blatant abuse of the law in order to silence someone they don't like at a crucial time.
In practice however, with zero penalties for abuse and given how effective is is, they have no reason not to act like this.
If the law were actually balanced with penalties on both sides that were actually applied abuse like this would be much more rare, but with penalties only ever applied to one side 'abusing' the law like this might as well be baked in and defined as perfectly acceptable, because for all intents and purposes it already is.
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Restatements = public law = not copyrightable
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