I'm replying to both your comments here to keep things easier to read.
Whether or not there’s a misrepresentation has absolutely nothing to do with whether there’s a constitutional violation.
It has everything to do with whether there's a Constitutional violation, and a simple thought exercise will show why.
Suppose that Congress, alarmed at all the obscenity on the Internet, chose to pass the Actions Opposing Online Obscenity General Act ("AOOOGA"). This statute allows any citizen to file a notice to an ISP that accuses a piece of content of being obscene. To comply with the statute, ISPs are obligated to immediately take down the content.
Now, all is not lost for free speech advocates, because Congress also included the Takedown Liability Clause ("TLC"). This provides civil liability for those who "misrepresent" that material is obscene. But here's where it gets unsavory. The terms of the TLC dictate that a sender of a takedown notice can only be liable for "misrepresentation" if they did not make a purely subjective determination that the content was obscene. Furthermore, the burden of proof lies on the people whose work was taken down to prove that the sender did not make this purely subjective determination.
These terms would pretty much render the TLC unenforceable. Without any consequences for taking down protected speech, such a system would foster widespread abuse. In fact, I think we can both agree that the "operation and effect" of AOOOGA would be to primarily take down speech that was Constitutionally protected. I'm pretty sure neither of us believe it would pass Constitutional muster.
Now, you could argue that this situation is not analogous to the DMCA, but that is a separate argument. You could also argue that the AOOOGA was unconstitutional in other ways, but this is, again, a separate argument.
What you absolutely could not argue is that the terms of the TLC had "absolutely nothing to do with whether there’s a constitutional violation."
And while we're at it, you absolutely could not argue that the AOOOGA was completely outside of the realm of Constituional scrutiny, because the senders and recipients of the obscenity takedown notices were engaging in "merely private conduct."
At least when I think you have something wrong, I don't accuse you of lying in bad faith as you do to me.
Believe me, I am being kind. You have proved, over and over again, that you can only argue against straw men. You do so in the very comment I am replying to:
Mike and Seltzer’s argument is that responding to the takedown notice is a prior restraint on the service provider’s part.
That is absolutely not what anyone is arguing. There is not a hint of a suggestion in Prof. Seltzer's paper that this is her argument. Mike himself has come here and explicitly said that it's not his argument. And I've explained to you, at least half a dozen times, what their argument actually is.
Yet, here you are, repeating this straw-man argument as if it were in any way valid. That means either that you are lying in bad faith, or that you are so unbelievably stupid that you can't comprehend basic English sentences. You seem like you have some elementary reading ability, so I assumed you were lying. But if you want to go with the "unbelievably stupid" defense, have at it. (Given your tendency to act like a Speak-N-Spell here, you might actually have a case.)
I tell you what, Karl, let's go through this one point at a time. You're trying to argue too many different things all at once, and it's just not working.
I've done nothing throughout this entire conversation but reply to topics that you have brought up. If you want to see who made this thread go all over the place, look in the mirror.
Pick a point of law that you think I got wrong, and we'll discuss just that one point.
Pretty much everything you've said on this site has been ruled incorrect in a court of law. It would be more of a chore to hunt down something you've been right about. Still, I agree, brevity is a good thing. So let's go with the one point we've been arguing over for the past couple of comments.
Congress passes a law, that people are compelled to obey, yet you claim that the law is completely outside of the reach of Constitutional analysis unless the people who obey that law are "magically transformed into state actors." I think you are absolutely wrong - not just mistaken, but saying the complete opposite of every legal authority I've ever read.
I should point out that this claim is nothing other than a claim that the legislature is summarily immune from Congressional scrutiny. After all, it would require some other state actor (the judiciary, some branch of law enforcement, or a private actor who has been "transformed" into a state actor) to place the law within reach of the Constitution.
Can you cite even a single ruling that says this is correct? Because every case that either of us has cited disagrees with you.
At this point, I'm just going to ignore the ad homs.
Congress does not remove videos from YouTube.
Congress requires, by statute, that the videos be removed. The removal of those videos is "fairly attributed to" the statutes. That puts them within the reach of Constitutional analysis.
where you claimed that the state action doctrine and the state actor doctrine are two separate doctrines.
When people discuss whether a private actor becomes a "state actor," they're usually talking about #4 in my previous comment. And in this entire conversation, it's the way you used it, too. (See e.g. your "mowing the lawn" example.)
But the doctrine does not require that private parties, when compelled to act by law, be "magically transformed into state actors" in order for their acts to be attributable to the State. That is abundantly clear from the sources that both you and I have quoted.
Thus, whether an action is a "state action" is a separate, and broader, question than the narrow question of whether private parties are transformed into state actors. If we can both agree on this, then we should move on.
Are they, or are they not, arguing that the ISPs that remove complained-of content are state actors?
No, they are not. In Mike's own words, they are arguing that ISPs "are compelled to do so by the government." By their argument, recipients of a takedown notice are no more "state actors" than the ISPs in CDT, the cable operators in Playboy, or the booksellers in Bantam. They are arguing that the government, not the ISPs, are the state actors. And I agree.
They have to argue that the ISPs are state actors since the ISPs are the parties that actually remove the content.
No, they don't have to argue this. They can also argue that the the parties that actually remove the content were compelled to do so by a state actor. Which is what they are, in fact, arguing.
You can’t argue that Congress is removing the content because Congress doesn't physically remove content from a service provider’s system.
Congress didn't physically block the content in the Playboy case. The state of Pennsylvannia didn't physically take down content in the CDT case. The state of Rhode Island didn't physically remove content from any bookstore in the Bantam case. I'm sure both of us could find other cases as well.
To be considered a state action, it is not a requirement that the physical removal be done by a state official. It is enough that it be done under the compulsion of a state actor (or actors). Congress is such a state actor, and a legally-enforcable statute is such a compulsion.
I think you’re totally delusional if you think the DMCA compels rightholders to send DMCA notices if they want their rights to be enforced. They can, and do, send notices that aren’t DMCA notices.
But if the notices are not compliant with the DMCA, they have no legal force whatsoever. That's not the case if they're DMCA-compliant notices. That distinction makes the notice-and-takedown process subject to Constitutional analysis.
And they can, and do, sue service providers without sending a notice.
And if the ISP complies with the DMCA statutes, the judiciary is required to dismiss those lawsuits.
Do you or do you not agree that it can't be a prior restraint unless the service provider is a state actor? [...] Do you agree that the service providers have to be state actors or else it can’t be a constitutional violation?
I do not agree. It can also be a prior restraint if the service provider is compelled to act by statute. See above.
Do you or do you not believe that private parties, when compelled to act by statute, are "magically transformed into state actors" through their compliance?
But you don’t grasp that your silly theory would mean that everyone who follows the law is a state actor.
By my "silly theory," the actions compelled by the law would be attributable to the state that enacted that law.
But by your "silly theory," a state can enact laws that people are compelled to follow, but it is not a state action unless those people meet the "state actor" requirement.
I've already posted several quotes that support my "silly theory." You have posted none that support yours.
I pointed out quotes above of the Supreme Court saying that even regulated business, whose conduct absolutely is specified by legal statute, are not state actors.
And as I pointed out, repeatedly, that it's only the case because the legal statutes don't regulate the conduct in question. The statutes regulate unrelated conduct. The question was whether that regulation turned them into state actors to such a degree that all of their conduct (regulated or not) could be considered "state action."
Private actors don't need to be transformed into "state actors" of this particular variety for their acts to be attributable to the state. If their actions are compelled by statute, it is still a state action.
You haven’t, and can’t, find one single case where the party that imposed the restraint wasn’t a state actor.
You must have a different definition of "impose" than everyone else. From Merriam-Webster: "to cause (something, such as a tax, fine, rule, or punishment) to affect someone or something by using your authority." The free legal dictionary offers these synonyms: command, compel, decree, dictate, direct, drive, enact, impel, ordain, order; bring under rule, oblige, require, or subject to authority. (And more along those lines.)
Thus, "the parties that impose the restraint" need not be the same as "the parties that actually remove the content." The question isn't who carried out the restraint; the question is who provided the authority for the restraint.
So, if Congress (or any other state actor), by the authority of law, obliges an ISP to restrain content, they have "imposed" that restraint. It is not necessary that Congress choose the specific content, or physically remove the content, or whatever; they "impose" the restraint by enacting the law. That is in agreement with all the cases I have cited, and no case I am aware of has decided otherwise.
It’s simple extrajudicial, private action
And, here, you're again using "extrajudicial" as a synonym for "extralegal." An action does not become a "private action" merely because it's extrajudicial. Conduct that is specified by statute is not "merely private conduct," whether the conduct occurs extrajudicially or not.
And if it's an otherwise private actor imposing the restraint, following Congress's law, then it's not a constitutional violation unless that private actor is a state actor.
Restating your claim does not make it correct. And it is not correct. If it's an otherwise private actor carrying out the restraint, by following Congress's law, then it certainly is a Constitutional violation. That's exactly what happened in Playboy. If you substitute "the state" for "Congress," it's exactly what happened in CDT, Bantam, and probably hundreds of other First Amendment cases.
You have cited no authority - none whatsoever - for this claim. Because it is simply not true.
Please explain to me, as you understand it, the following: (1) who would sue whom, (2) what would be the cause of action, and (3) who exactly is the state actor.
(1) 512(f) creates a cause of action against the sender of a takedown notice, so in the initial stages at least, Lessig would sue (and is suing) Library Music. If that suit fails for the reasons specified in (3), then he could institute an action against the government itself.
(2) The initial cause of action would be the one specified in 512(f). If this cause of action fails, then there could be a cause of action against the government, since the government enacted (Congress) and enforced (judiciary) the conditions under which the 512(f) action failed.
(3) A 512(f) suit does not require that the sender be a state actor. However, in interpreting and enforcing the 512(f) action, the judge (as a member of the judiciary branch) is a state actor.
In that lawsuit, as in all judicial actions, the judge is Constitutionally required to interpret and enforce 512(f) (as part of the DMCA generally) such that it is consistent with the First Amendment. If that is not possible under the language of 512(f), then 512(f), and possibly the entire DMCA, is itself unconstitutional.
So, if that's the case, then Lessig could bring a civil suit against the government for enacting 512(f) (or possibly the entire DMCA) such that its enforcement infringed upon his First Amendment rights.
But we're not at that point yet. We're at the point where the judge must interpret 512(f) in such a way that the DMCA comports with the First Amendment. If he does, no problem. If he can't, he must render the DMCA unenforceable.
You don't have to pretend to be an expert on every legal doctrine you discuss, Karl.
I am not pretending to be an expert on every legal doctrine. I am saying that even a non-expert like me can see that you're wrong.
The party that imposes the restraint or deprivation must be a state actor. You haven’t disproved that,
Nor do I have to disprove that, because I never claimed otherwise. My argument is, and always has been, that the party that is imposing the restraint is Congress (through enacting the DMCA statutes) and/or the judiciary (through enforcing them).
Actions are done by actors. It’s really simple.
And if those actions are "fairly attributable to the State," they are state actions. It's really simple.
That doesn’t change the fact that Seltzer and Mike are arguing prior restraint when they say that more procedural safeguards are needed before the speech is restrained.
Yes, they are. What they are not arguing is that the people who are imposing the prior restraint are ISPs, acting on their lonesome. The only one making that argument is you.
That’s why Seltzer and Mike argue that the DMCA “compels” them to act. Without that compulsion, there can be no state action as to the party that causes the restraint.
True, but immaterial, since the DMCA does in fact "compel" ISPs to act. It also "compels" the alleged infringers to act by a process strictly described by the DMCA statutes (at least, if they don't want their First Amendment rights to be violated). And it "compels" rights holders to act as strictly proscribed by statute, if they want their (state-created) rights to be enforced.
The only way a Constitutional analysis could be avoided, is if the conduct of ISPs, rights holders, and takedown victims was all "merely private conduct" - as in A, above. This is obviously false.
You have not shown a single case where it was determined that conduct specified by legal statute is "merely private conduct." And you can't. Because it's not.
Mike can delete all of our constitutionally protected comments from his website as he pleases.
But if he was doing so because it's the law, then it would be unconstitutional. It would be unconstitutional even if Mike was not "magically transformed into a state actor." It would be unconstitutional even if Mike did not face personal liability under a 1983 action.
The question in general is whether Congress (state actor), in enacting the DMCA requirements (state action), was committing prior restraint, because the statutes require ISPs to take down content without the necessary safeguards. The question in the instant case is whether Judge Stearns (state actor) interpreted 512(f) liability (state action) in a way that encourages or endorses the censorship of protected speech.
You're arguing that these questions cannot even be asked, because sending a DMCA notice (as specified by statute), which causes ISP censorship (as specified by statute), is somehow "merely private conduct." And furthermore, that this immunizes Congress and the judiciary from Constitutional scrutiny.
Huh. The quote from Luger, above, was a reply to this:
Mike was citing Seltzer, and they both were making the argument that the speech at issue couldn’t be restrained until there had been an adversarial hearing. That’s the classic prior restraint argument.
For whatever reason, the site ate that part of my comment.
Sigh. I am going to fail this semester if I keep this up. The court looks at the defendant to determine if he or she is a state actor. If so, then it’s state action. And if not, then it’s not.
No. The court looks at the action to see if it can be "fairly attributed to the state."
Let's assume that there is actually a Constitutional right being violated by some action. To resolve the "state action" issue, courts make these determinations, generally in this order:
1. If the actor was someone who holds a position of official authority within any branch of the government, it is a state action. (Ft. Wayne Books, the ICE seizures.)
2. If an otherwise private action is actually enforced by the state (e.g. through seizure, preliminary injunction, or judicial enforcement of a private contract), then it is a state action. The state officials (judges, law enforcement officials, etc.) are the state actors. (NYT, NAACP, Shelley, etc.)
3. If the act was done "by private parties done under the compulsion of state law," it is a state action. State law includes "any statute, ordinance, regulation, custom, or usage" having the force of law. The "state actor" is the state itself, since "it is the State that has commanded the result by its law." (CDT, Bantam Books, Playboy, Peterson.)
This determination does not require that the private party be "magically transformed into a state actor," and in these situations, no court that I am aware of has claimed that it did.
This sub-test has a few lemmas:
3a. "Compulsion" need not require formal state sanctions; the sanctions may be informal or merely threatened. (Bantam Books, CDT)
3b. "Compulsion" is not limited to punishment; a private actor can also be compelled through "significant encouragement." (Carson)
3c. The mere possiblity that private actors can obey the law in ways that are not unconstitutional, does not mean their actions are not commanded by the state. If the "operation and effect" of their obedience results in unconstitutional action, the state is responsible, and the law is unconstitutional. (CDT, Playboy)
3c. The law is unconstitutional even if the private party would have acted as he did independently of the existence of that law. (Peterson)
4. If the action was done by someone who is not a state official, and was not done "under the compulsion of state law," only then is it necessary to determine whether the actor is "transformed into a state actor." There are several different tests for this:
4a. If the private actor was "jointly engaged with state officials in the prohibited action," the private actor is transformed into a state actor. (Burton, Adickes)
4b. If the private actor is "engaged in actions that are traditionally and exclusively within the province of the state," they are a state actor, and their actions are state actions. (Marsh, Schneider)
An action fails to be a "state action" in these cases only:
A. When the action is "merely private conduct" - conduct between purely private actors, voluntarily and privately enforced, without any state involvement whatsoever. (No case that we have discussed meets this criteria.)
B. When the action is otherwise "merely private" (as in A. above), but done by an actor who is state-compensated or state-regulated in ways that are unrelated to the conduct. (Moose Lodge, Jackson, Carson)
C. When the ordinance which specified the action has no force of law, but is "educational and advisory merely." (Standard Computing Scale Co. v. Farrell)
Congress, who created the DMCA statutes, meets 1. The judiciary, who must consider DMCA compliance, also meet 1. The recipient of a DMCA notice meet 3. It could also be argued that the sender of a DMCA notice meets 4b.
The one thing that it is not is A, "merely private conduct." Arguing otherwise is ridiculous.
Conduct allegedly causing the deprivation of a constitutional right protected against infringement by a State must be fairly attributable to the State. In determining the question of "fair attribution," (a) the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by it or by a person for whom it is responsible, and (b) the party charged with the deprivation must be a person who may fairly be said to be a state actor, either because he is a state official, because he has acted together with or has obtained significant aid from state officials or because his conduct is otherwise chargeable to the State. [...]
Insofar as petitioner alleged only misuse or abuse by respondents of Virginia law, he did not state a cause of action under 1983, but challenged only private action. Such challenged conduct could not be ascribed to any governmental decision, nor did respondents have the authority of state officials to put the weight of the State behind their private decision. However, insofar as petitioner's complaint challenged the state statute as being procedurally defective under the Due Process Clause, he did present a valid cause of action under 1983.
That is clearly the type of challenge that Mike and Prof. Seltzer are talking about.
Service providers deciding to take down content because of the fear of secondary liability is not illegal.
If that content is protected by the First Amendment, then yes, it is. When ISPs are threatened with legal liability (unquestionably a state action), as determined by legal statute (also unquestionably a state action), if ISPs don't take down protected content, then the state has censored protected speech. There is absolutely no question about this.
There is also no question that this is what the state does. If ISPs don't follow the DMCA process, they lose their protection from state action, regardless of whether that content is Constitutionally protected or not. A very small minority may choose to lose that protection, but only if they're certain they don't need it, and that will never happen when the line is "dim and uncertain."
The only chance the DMCA has to be Constitutionally valid is if the statutes make sure that such "dim and uncertain" content never makes it into a DMCA notice in the first place. If the statutes provide effective deterrents to the senders of DMCA notices, such that they do not send notices in "dim and uncertain" cases, then I believe the statutes pass Constitutional muster. But if they don't, then the statutes have the "operation and effect" of silencing a significant amount of protected speech. And that is unquestionably unconstitutional.
If the DMCA was some clear violation of due process, do you think no one else would have challenged it in court by now?
Who, exactly, do you think would challenge it?
The copyright holders benefit from it, because they do not need to go through the courts in order to take down speech. Even so, many don't like it - for the opposite reason: they think that they shouldn't have to act at all for infringing speech to magically disappear. They've continuously list that battle in court, however, so now they're trying to change it by bribing Congress instead.
The ISPs might stand up for the rights of their users - except that the DMCA offers them blanket immunity from them, too. The only thing that's left is a clear and meticulously-defined process that grants them immunity from the lawsuit-happy rights holders that are out to get them, and the legal muck that is secondary liability law. What ISP would want to rock that boat?
So the only people with a strong motive to challenge it are members of the general public. People who do not have the time, energy, or resources to bring a suit over anything. People who have been shown, again and again, that courts enforce copyright laws, not to protect them, but to destroy them.
It's a miracle that even this situation made it to court.
I don't have much time, but I still do glance at this thread, and I thought I'd briefly chime in.
The point of the state action doctrine is to look at the actor that is causing the deprivation to determine if they are a state actor or not.
You have it exactly backwards. The point of the state actor doctrine is to look at the actor that is causing the deprivation to determine if their acts are a state action or not.
But that is not the only way that an action can be a state action. The "state actor" doctrine (at least in the tradition of Marsh et. al.) is a subset of the "state action" doctrine.
All that is necessary is that the regulation "be said to in any way foster or encourage" the acts that caused the loss of Constitutional rights (from Moose Lodge v. Irvis).
Whether the DMCA does that is up for debate. But that is the debate that is relevant. Neither the DMCA nor any other statute needs to have private citizens "magically transformed into a state actor" to be a state action.
And that gets us back to the entire reason this sub-thread was started. By now, even you must admit you were wrong when you said "Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint."
The only one making that argument is you - and only so that you can "debunk" it. He is - and always was - saying that the state was imposing a prior restraint by enacting the DMCA procedures. You can (and, I'm sure, will) argue that his argument is deficient for that reason. That, at least, would be honest. You would probably be wrong, but at least you wouldn't be arguing against a straw man.
To everyone else in the peanut gallery: I'm sure you're getting tired of this pissing contest. So, I'm going to just post a bunch of judicial quotes that, I believe, show that Average Joe A.C. is wrong.
Read and digest them, follow the links to the full cases, do the "wiki walk" to other cases that are cited. If you do that, you will be more and more convinced that Cowardly Joe here is being deceptive - regardless of whether you think I'm right or not.
The terms of 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law." [...]
[T]here is much support in lower court opinions for the conclusion that discriminatory acts by private parties done under the compulsion of state law offend the Fourteenth Amendment. In Baldwin v. Morgan, supra, the Fifth Circuit held that
"[t]he very act of posting and maintaining separate [waiting room] facilities when done by the [railroad] Terminal as commanded by these state orders is action by the state."
The Court then went on to say:
"As we have pointed out above, the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so."
Id. at 755-756 (emphasis added [by the court]). We think the same principle governs here.
For state action purposes, it makes no difference, of course, whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law -- in either case, it is the State that has commanded the result by its law.
A private entity's actions may be attributable to the State if [...] the State exercised such coercive power that the private actor was compelled to act as it did[.] [...]
This test requires that the act be the product either of State coercion or significant encouragement. This is generally the case where a State enacts regulatory requirements with which private entities must comply.
- Carson v. Springfield College
It cannot be denied that here, the City of Greenville, an agency of the State, has provided by its ordinance that the decision as to whether a restaurant facility is to be operated on a desegregated basis is to be reserved to it. When the State has commanded a particular result, it has saved to itself the power to determine that result, and thereby, "to a significant extent," has "become involved" in it, and, in fact, has removed that decision from the sphere of private choice.
We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute.
Although this is a civil lawsuit between private parties, the application of state rules of law by the Mississippi state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the Fourteenth Amendment.
[N]o State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith.
Under the decisions of the Supreme Court and this court, municipal liability under section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose "moving force" is the policy or custom.
Sorry, "disobeying" that statute had legal consequences. (By "legal consequences," I just mean that the determination of whether they followed the statute or not would make any kind of difference in a court of law.)
I shouldn't even be here, really, but I just want to reply to this:
I’m not surprised you’re running away.
I'm not "running away." When I said I didn't have time for this nonsense, I was not being glib.
I am in college full-time, taking 400-level computer science and mathematics courses. Before school, every day, I work for a startup, composing music and programming a sound engine for their Android app. I am so pressed for time, that just today I had to cancel a gig, because I don't have any time to practice. I'm not studying law, so for me to spend any more time on this would be, literally, nonsensical.
In any case, insulting me will never convince me or anyone else that you're right. All you have to do to show I'm wrong is come up with a single court case, where:
- an action was taken that infringed upon someone else's Constitutional rights;
- that action was explicitly defined by a government statute;
- following that statute had legal consequences;
- yet that action was found to be outside the reach of Constitutional analysis, because it failed to reach the level of a "state action."
Good luck with that.
I still won't reply here, because I can't spare the time. But at least the two or three people who still give a shit about this thread will think you've won. And that's clearly the only thing you care about.
This is probably going to be my last post on this thread. I have no more time for this nonsense.
Goggle publicly admits that it doesn’t take down content pursuant to every notice it receives.
So far as I know, Google - like all ISPs that I'm aware of - only ignore invalid DMCA notices. As they are told to do by the DMCA statutes.
Its decision to take down content is voluntary, not compelled.
Once again, that argument was shot down in Bantam. Also, you're ignoring that bit in Carson where they mentioned "significant encouragement." By granting immunity from legal liability (a state action), it does in fact provide "significant encouragement."
Your argument could only hold water if the DMCA had no legal force whatsoever. It must be, like a standard of weights and measures, "educational and advisory merely [...] and not a rule or regulation of a legislative character" (Standard Computing Scale Co., Ltd. v. Farrell).
Honestly, the idea that ISPs follow the DMCA for purely voluntary reasons is so completely loony, I have no idea how you can make it with a straight face.
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974). The fact is that even heavily regulated businesses are not necessarily state actors.
The Jackson action (ha!) was not in any way regulated by the state, so it was not a state action. That was never in dispute. The test was whether the power company was nonetheless a state actor, solely due to the fact that it was state-regulated in unrelated ways.
In other words, the test was whether the power company was so involved with a state to be in a joint venture with the state (as in Burton v. Wilmington Parking Authority); or whether it was performing a function traditionally and exclusively performed by the state (as in Marsh v. Alabama).
None of that applies if the actions themselves are specified by statute. If that's the case, the actor does not need to be in a joint venture with the state, and does not need to be performing a state function.
On a separate note - it could be argued that the sender of a takedown notice be a "state actor" in the fullest sense of the word, through the Marsh test. They are allowed to demand, with the power of the state at their disposal, that ISPs remove speech from circulation, because it "is not authorized by ... the law." That is a function traditionally and exclusively performed by the judiciary.
Of course, that argument is unnecessary. Their actions are specified by statute, so they act "under color of any statute" (duh). That test applies to "every person," not just to people acting on behalf of the state.
I think he mentioned Arcara in a footnote, but I might be confusing that with something else.
It was mentioned in a footnote in one of the file-sharing cases - Grokster, Napster, I don't remember - because it was brought up by one of the litigants. The Supreme Court called it an "interesting question" - and instead used the O'Brien standard.
To date, Arcara has been determinitive in absolutely no copyright case whatsoever. Because it can't be - it only applies if the regulated activities "manifest absolutely no element of protected expression." As both London-Sire v. Does and Sony v. Does make absolutely clear, even simple piracy "has some First Amendment value" and "qualifies as speech entitled to First Amendment protection."
It certainly does not apply to the ICE seizures, which were "imposed on the basis of an advance determination that the distribution of particular materials is prohibited" - putting it explicitly out of the reach of Arcara.
You were wrong; you were clearly wrong; and you have not once admitted it. Not only did you not admit it, you fabricated a court ruling in your mind that said you were right.
Can you find a single case where the restraint was imposed by private actors who weren't considered to be state actors?
No, but I can't find that in this case, either.
There are, of course, many prior restraint cases - perhaps even the majority - where the restraint was carried out by private actors who weren't considered to be state actors. Just like taking down content due to a DMCA notice is carried out by ISPs.
But in all those cases, like ISPs responding to takedown notices, they did so because it was specified by law. Thus, their actions were attributable to the state; it was the state who imposed the restraint.
This is the general rule when private actors are following state statutes:
A private entity's actions may be attributable to the State if [...] the State exercised such coercive power that the private actor was compelled to act as it did[.] [...]
This test requires that the act be the product either of State coercion or significant encouragement. This is generally the case where a State enacts regulatory requirements with which private entities must comply.
- Carson v. Springfield College
[I]n Pappert, the restraint was carried out by the government.
That's not what the government argued:
The Act in this case has resulted in the blocking of in excess of 1,190,000 web sites that were not targeted by the Informal Notices. Defendant argues that this overblocking does not violate the First Amendment because it resulted from decisions made by ISPs, not state actors. [...]
The Court rejects this argument.
On a separate note, I'd like to reply to this:
I recall that the court did find in the government’s favor, citing Arcara no less.
You recall absolutely, 100% wrong. Not one of the copyright seizures resulted in a ruling for the government.
The closest there was to a judicial ruling in the government's favor was the denial of Puerto 80's 983(f) motion. But when the case moved forward, the judge dismissed ICE's original complaint. (He gave them a deadline to re-file - which the government missed by months, eventually dropping all charges after the MyVidster ruling.) And the judge certainly did not cite Arcara.
Significantly, however, the Government's memorandum did. That you would remember the prosecution's justification as a ruling in their favor says a lot about you.
The point, which you are so clearly missing, is that for there to be a prior restraint, the party imposing the restraint has to be the state actor.
No. For there to be a prior restraint, there needs only to be a state action. Whether that state action is actually carried out by private parties or not makes no difference.
So with the Commission in Bantam, the Commission could not be imposing a prior restraint unless the Commission was a state actor.
In Bantam, the parties who actually carried out the prior restraint were the booksellers. In Playboy, they were cable companies. In CDT, like the DMCA, they were ISPs.
In both the Playboy and CDT cases, the private actors had a choice in how to implement the censorship. The state made exactly the same argument you are making: that because the prior restraint was actually carried out by private parties, who chose the method of censorship, it was beyond the reach of First Amendment analysis. They were completely shot down.
Both parties, though not state actors, were acting under the influence of the law. The moment the law exerts an influence a party's actions, the state is implicated. That is all that is required for Constitutional analysis.
Of course that law is open to constitutional challenge, just like I have repeatedly said above the DMCA is. But it’s not a procedural challenge.
It wouldn't be immune from a procedural challenge. (Of course, in my scenario, it wouldn't be necessary to make one.)
Yes, enacting the DMCA is state action. But following the DMCA doesn’t turn a private actor into a state actor.
Because the DMCA is a "state" statute, following the DMCA is a state action, at least for the purposes of Constitutional analysis.
Just as the law that says I have to mow my grass (and there really such a law where I live), I’m not a state actor just because I follow the law and mow my grass.
It means that mowing your grass is a "state action." If mowing your grass somehow deprived people of Constitutional rights, the state would be implicated.
If the party that actually imposes the restraint is not themselves a state actor, then it can’t be a prior restraint.
Again, both Playboy and CDT show you're wrong. It is only necessary that the party imposing the restraint be endorsed, coerced, or influenced by the state. There is no question that this is true of both the sender and the recipient of a DMCA notice, private actors though they be.
The only acts that escapes Constitutional examination are extra-legal acts between private parties. The moment the state gets involved at any level, it comes under the purview of Constitutional analysis.
For example, if I hire you to mow my lawn and you agree, we have a contract. That’s private action, even though I could take you to court should you breach.
If there is a statute that specifies the form and substance of that hiring agreement, then it is not a private action. The statute falls under the purview of Constitutional analysis, even if you never take me to court.
Huh? So anyone who follows a law enacted by the state is a state actor?
That is quite clearly not what I said. Since you seem to have a reading problem, I'll repeat it, in bold:
In all of those situations there is a state actor. It is called the state.
In your examples, the state actor is the legislative branch of the state. They are the ones who passed the laws, and passing a law is a state action. For the purposes of Constitutional analysis, it is completely immaterial whether the people who obey those laws are state actors or not.
Say, for example, that a state government passed a law that said white people are immune from lawsuits by black people. Are the white people "state actors" under that doctrine? No, they're not. Does that mean that the law is immune from Constitutional analysis or the Fourteenth Amendment? No, of course not.
That specific argument was shot down in CDT v. Pappert. Were the ISPs considered "state actors?" No, they were not - but it didn't matter, because the operation and effect of the law was that speech was blocked. Neither were the booksellers in the Bantam case, or the cable operators in Playboy v. U.S. It made no difference at all, because they were obeying the law, and the state is responsible for the consequences of that obedience.
It is similar with the DMCA. That is law passed by Congress. Enacting it is a state action for the purposes of Constitutional analysis. If following the law means that someone's First Amendment rights are abridged, then it makes no difference whatsoever if either the sender or the recipient is a "state actor." It makes no difference if following the law happens extrajudicially, because the judiciary is not the only kind of state actor. The state actor is Congress, and the state act is enacting the DMCA statutes. Congress is responsible for any free speech that is blocked due to the DMCA statutes, because enacting those statutes is itself a state action.
You seem to be confusing the "state actor" doctrine, developed through case law, with the notion of a "state action." The "state actor" doctrine arose to address whether a private action, done due to no overt legal obligation, is nonetheless attributable to the state. A "state action" has a much lower bar. It covers any act performed by any branch of the government, and any act performed under the color of law. It does not require that any private party be considered a state actor. For the purposes of Constitutional analysis, any action, even actions between private parties, become "state actions" the moment they are able to be enforced by law.
No, you said “substantive challenges to statutes are also prior restraint,” which shows you’re confused about the difference between substance and process.
There is substantive First Amendment analysis, and procedural First Amendment analysis. The courts have referred to both as "prior restraint" at different points. You are focused, exclusively, on procedural prior restraint. That's not the only kind of procedural analysis, and it's not the only kind of prior restraint.
But that's really a tangent, so I'm going to drop it.
You said, "Sending a DMCA notice is not an extra-judicial action."
I said, "sending a DMCA notice is not an extra-judicial action, as that term is normally applied." The phrase is usually used in tort law, where it is (for all intents and purposes) a synonym for "outside the legal system." DMCA notices are not done outside the legal system. They may be done outside a court of law, but they are not private acts between private parties.
So are you now admitting that it does vary with the difficulty?
I never maintained that it didn't. I've maintained that it does not vary solely with the difficulty, which is what you have been arguing. The "dim and uncertain line" is not the origin of procedural safeguards. The origin is the general principal that protected speech should not be blocked with unprotected speech. The difficulty of that determination certainly contributes, but it's not the sole yardstick, and additional procedural safeguards are always necessary. For example, even if it was trivially easy to tell child pornography from protected speech (the Camfield standard), the "informal notices" in CDT v. Pappert would still be unconstitutional, according to the Court, because "the ex parte, probable cause determination provided for in the Act is insufficient."
Pull up the posts you have in mind where I’m wrong, and if I agree, I’ll admit it here and now.
Do you admit that you were wrong about the copyright transfers in Righthaven? Do you admit that you were wrong when you claimed that ICE sent direct notices to the websites that they took down, that the site owners would get their day in court, and that the court would find in ICE's favor? Do you admit you were wrong when you said the Arcara standard applies to copyright infringement in general, and the ICE seizures in particular? Do you admit you were wrong when you said that linking to streaming content constitutes copyright infringement?
I'm sure I could dig up more, but those are the ones I remember. I don't have time to actually hunt down the comments.
Under your theory, everything we do to comply with the law makes us a state actor. Law says you can't steal groceries and you don't steal groceries? State actor. Law says don't drive over the speed limit and you don't driver over the speed limit? State actor. [...etc]
Yes, in all of those situations there is a state actor. It is called the state.
When private parties obey the law, and the "operation and effect" of that obedience is the loss of Constitutional rights, it's not necessary that the private parties be "state actors." There is already a state actor: the state that enacted the law.
So if, by some wild stretch of the imagination, driving at the speed limit somehow violated First Amendment rights, then speed limit laws would be unconstitutional.
On the other hand, if there were no speed limit laws whatsoever, and people (somehow) lost their First Amendment rights when others drive at that particular speed, then driving at that speed wouldn't be unconstitutional.
The test is whether a private actor's actions can be attributed to the state. When that actor is following laws enacted by the state, that's true by definition.
You've shown that you don't understand that Seltzer and Mike were arguing prior restraint
I never said they weren't arguing prior restraint. I said they weren't arguing prior restraint by the ISPs. And they weren't. You are wrong.
You've shown that you don't understand the difference between substantive and procedural First Amendment analysis.
No, I've shown that "prior restraint" has also been used to describe a substantive analysis by the courts. And I was right.
You've shown that you don't understand what extrajudicial means.
I understand it OK, at least for a non-lawyer. It's just that in this context (the context of private actors and contract law), it's not usually used the way you're using it. "State action" is certainly not a synonym for "judicial action," which is (if I understand you correctly) what you're claiming.
You've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment varies with the context and the difficulty of separating protected and unprotected speech.
And you've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment doesn't vary solely with the difficulty of separating protected and unprotected speech. Which is what you claimed.
Yet, you never admit that you were wrong, and you never stop pretending like you're an expert on the very topics that you've demonstrated you have little grasp over.
That's weird, because my track record on the law is much better than yours. Whenever we've had these stupid debates, and a court has later ruled on the issue, you've been wrong and I've been right.
Yet you have never, once, admitted it. Ever.
Oh, by the way, I did admit I was wrong and you were right once. When we were first having a debate about the ICE seizures, way back in the day, I thought that ICE was required to follow 18 USC 983, "General rules for civil forfeiture proceedings." You said I was wrong, because that didn't cover judicial forfeiture, and you called me an idiot for it. And you led me, instead, to 18 USC 985, since it was the only section of 46 that dealt with judicial forfeitures, despite the fact that it dealt with real property.
So, I assumed I was wrong. I put 18 USC 985 as the seizure law in the first article I wrote for Techdirt. And you insulted me for it. As it turns out, what statute was ICE using? 985.
Shows what I get for listening to you. The only thing you've proven here is that you don't know what you're talking about. Either that, or - and I find this more likely - you're knowingly misinterpreting the law in order to attack any position that Techdirt takes.
Oh, in case you forgot, now's usually the point when you start polluting every single story on this site with nothing but barnyard noises. You've proven you can be a Speak-n-Spell too, I guess.
extrajudicial, adj. (17c) Outside court; outside the functioning of the court system
In the context of private contracts, the term "extrajudicial" means "outside the legal system." It is used to describe such things as settling contract disputes through private mediation, or settling a lawsuit outside of a court of law.
The DMCA is not remotely like this. No party voluntarily agrees to follow the DMCA as part of a private negotiation. Both the form and the content is determined, in minute detail, by Federal statute.
In any case, an act that is extrajudicial can still be a state action.
Nonsense. They can send, and did send, takedown notices without the DMCA.
No, they did not. They may have sent requests to take down material, but those were not "takedown notices" as specified by the DMCA.
Furthermore, the response was not dictated by any statute. An ISP might, for example, have attempted to escape liability by cutting off all beneficial financial relationships (e.g. ads) with the user, but still leave the content up. Or they may have themselves made a judgement call about the material's legal status. Or they may have feared a lawsuit from the user, rather than the copyright holder, and so done nothing. Or - most likely of all - they simply would not have allowed user-generated content at all, and tons of free speech we take for granted (including this conversation) would never have happened.
At the time, there was not much case law dealing with secondary liability for ISPs, so it's disingenuous to pretend that ISPs would react exactly the same way absent the DMCA.
Of course it's voluntary.
If their response is dictated by statute, it's not "voluntary." Pretending otherwise is utter horseshit.
The coercion comes from the threat of liability for copyright infringement
...and they can only be held liable through state action. What is also coercive is the granting of immunity from state action if ISPs follow the takedown system.
Don't pretend that website can just ignore the DMCA with legal impunity. It is idiotic. The DMCA is not a mere recommendation.
The Commission there was set up under state law to investigate and recommend the prosecution of certain violations. That's a state actor.
The DMCA system was set up under Federal law to handle certain copyright violations. The copyright holders are granted the authority, under Federal statute, to make a determination traditionally handled by Federal judges - namely, that speech can be censored because it "is not authorized by [...] the law." The form and substance of a takedown notice, as well as the legal force behind those notices, are created by Federal statute - not through private contract. As are the specific steps that an ISP must take to escape legal liability - in other words, to escape state action.
In any case, that wasn't the point. Bantam makes it clear that the threat of state action is coercive enough to render compliance involuntary. If ISPs are even threatened with the state action of a copyright lawsuit for non-compliance, then their compliance is not voluntary.
Sending a DMCA notice is not an extra-judicial action, as that term is normally applied. The DMCA system did not spring up, ex nihilo, from agreements between rights holders and ISPs. It is not a voluntary agreement between private parties.
It is an action that is specified, in great detail, by Federal statute. When a rights holder sends a DMCA notice, they are exercising a power granted to them exclusively by the state. They are acting under state authority; it is a state action.
In the Civil Rights Cases, this Court pointed out that the Amendment makes void 'state action of every kind' which is inconsistent with the guaranties therein contained, and extends to manifestations of 'state authority in the shape of laws, customs, or judicial or executive proceedings.' Language to like effect is employed no less than eighteen times during the course of that opinion. [...]
Among the phrases appearing in the opinion are the following: 'the operation of state laws, and the action of state officers, executive or judicial'; 'state laws and state proceedings'; 'state law or some state action through its officers or agents'; 'state laws and acts done under state authority'; 'state laws or state action of some kind'; 'such laws as the states may adopt or enforce'; 'such acts and proceedings as the states may commit or take'; 'state legislation or action'; 'state law or state authority.'
When an ISP takes down that content, they are not doing so "voluntarily." They are obeying a Federal statute, and doing so under the threat of legal sanctions - not the threat of private actions. They do so because the law "has exercised coercive power or has provided such significant encouragement" that they have little choice but to take down the content.
It matters not a whit that they may not actually be taken to court. From Bantam, "the threat of invoking legal sanctions" is enough:
It is not as if this were not regulation by the state of Rhode Island. The acts and practices of the members and Executive Secretary of the Commission disclosed on this record were performed under color of state law, and so constituted acts of the state within the meaning of the Fourteenth Amendment. [...]
It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact -- and the finding, being amply supported by the record, binds us -- that Silverstein's compliance with the Commission's directives was not voluntary.
When a private party complies with a regulation specified by the state, then it is not a voluntary action, even if non-compliance does not actually violate any law. And when a private party exercises power granted to it by statute, it is not a private action, it is "performed under color of state law."
In order for the DMCA to be non-coercive, it must serve a "purely advisory" purpose; it must have no force of law whatsoever - no privileges for compliance, no penalties for non-compliance. That is utter bullshit. Nobody ever has thought it is merely advisory; if it was, it would be entirely superfluous.
A law itself can be considered prior restraint and therefore a First Amendment violation. The DMCA's safety valve against that is Fair Use. Therefore, this ruling effectually disables that safety valve by not requiring DMCA filers to consider Fair Use.
Not just fair use, but any defense to copyright infringement claims (de minimis, misidentification, the fact that the content was authorized, etc). Essentially, it gives copyright holders free reign to censor anyone without consequence, while those who are censored have no recourse at all.
If 512(f) was actually enforceable - like all the other parts of 512 - then the DMCA would pass Constitutional muster, because there would actually be consequences for censoring protected speech.
This is why I strongly disagree with Judge Stearns' reading of the DMCA. If rights holders can legally force ISPs to take down material, without considering whether the material is infringing under the law, then the DMCA is clearly unconstitutional.
I somehow doubt that's what Congress had in mind, but even if it was, Congress doesn't get to sidestep the First Amendment for the sake of expediency.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Whether or not there’s a misrepresentation has absolutely nothing to do with whether there’s a constitutional violation.
It has everything to do with whether there's a Constitutional violation, and a simple thought exercise will show why.
Suppose that Congress, alarmed at all the obscenity on the Internet, chose to pass the Actions Opposing Online Obscenity General Act ("AOOOGA"). This statute allows any citizen to file a notice to an ISP that accuses a piece of content of being obscene. To comply with the statute, ISPs are obligated to immediately take down the content.
Now, all is not lost for free speech advocates, because Congress also included the Takedown Liability Clause ("TLC"). This provides civil liability for those who "misrepresent" that material is obscene. But here's where it gets unsavory. The terms of the TLC dictate that a sender of a takedown notice can only be liable for "misrepresentation" if they did not make a purely subjective determination that the content was obscene. Furthermore, the burden of proof lies on the people whose work was taken down to prove that the sender did not make this purely subjective determination.
These terms would pretty much render the TLC unenforceable. Without any consequences for taking down protected speech, such a system would foster widespread abuse. In fact, I think we can both agree that the "operation and effect" of AOOOGA would be to primarily take down speech that was Constitutionally protected. I'm pretty sure neither of us believe it would pass Constitutional muster.
Now, you could argue that this situation is not analogous to the DMCA, but that is a separate argument. You could also argue that the AOOOGA was unconstitutional in other ways, but this is, again, a separate argument.
What you absolutely could not argue is that the terms of the TLC had "absolutely nothing to do with whether there’s a constitutional violation."
And while we're at it, you absolutely could not argue that the AOOOGA was completely outside of the realm of Constituional scrutiny, because the senders and recipients of the obscenity takedown notices were engaging in "merely private conduct."
At least when I think you have something wrong, I don't accuse you of lying in bad faith as you do to me.
Believe me, I am being kind. You have proved, over and over again, that you can only argue against straw men. You do so in the very comment I am replying to:
Mike and Seltzer’s argument is that responding to the takedown notice is a prior restraint on the service provider’s part.
That is absolutely not what anyone is arguing. There is not a hint of a suggestion in Prof. Seltzer's paper that this is her argument. Mike himself has come here and explicitly said that it's not his argument. And I've explained to you, at least half a dozen times, what their argument actually is.
Yet, here you are, repeating this straw-man argument as if it were in any way valid. That means either that you are lying in bad faith, or that you are so unbelievably stupid that you can't comprehend basic English sentences. You seem like you have some elementary reading ability, so I assumed you were lying. But if you want to go with the "unbelievably stupid" defense, have at it. (Given your tendency to act like a Speak-N-Spell here, you might actually have a case.)
I tell you what, Karl, let's go through this one point at a time. You're trying to argue too many different things all at once, and it's just not working.
I've done nothing throughout this entire conversation but reply to topics that you have brought up. If you want to see who made this thread go all over the place, look in the mirror.
Pick a point of law that you think I got wrong, and we'll discuss just that one point.
Pretty much everything you've said on this site has been ruled incorrect in a court of law. It would be more of a chore to hunt down something you've been right about. Still, I agree, brevity is a good thing. So let's go with the one point we've been arguing over for the past couple of comments.
Congress passes a law, that people are compelled to obey, yet you claim that the law is completely outside of the reach of Constitutional analysis unless the people who obey that law are "magically transformed into state actors." I think you are absolutely wrong - not just mistaken, but saying the complete opposite of every legal authority I've ever read.
I should point out that this claim is nothing other than a claim that the legislature is summarily immune from Congressional scrutiny. After all, it would require some other state actor (the judiciary, some branch of law enforcement, or a private actor who has been "transformed" into a state actor) to place the law within reach of the Constitution.
Can you cite even a single ruling that says this is correct? Because every case that either of us has cited disagrees with you.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Congress does not remove videos from YouTube.
Congress requires, by statute, that the videos be removed. The removal of those videos is "fairly attributed to" the statutes. That puts them within the reach of Constitutional analysis.
where you claimed that the state action doctrine and the state actor doctrine are two separate doctrines.
When people discuss whether a private actor becomes a "state actor," they're usually talking about #4 in my previous comment. And in this entire conversation, it's the way you used it, too. (See e.g. your "mowing the lawn" example.)
But the doctrine does not require that private parties, when compelled to act by law, be "magically transformed into state actors" in order for their acts to be attributable to the State. That is abundantly clear from the sources that both you and I have quoted.
Thus, whether an action is a "state action" is a separate, and broader, question than the narrow question of whether private parties are transformed into state actors. If we can both agree on this, then we should move on.
Are they, or are they not, arguing that the ISPs that remove complained-of content are state actors?
No, they are not. In Mike's own words, they are arguing that ISPs "are compelled to do so by the government." By their argument, recipients of a takedown notice are no more "state actors" than the ISPs in CDT, the cable operators in Playboy, or the booksellers in Bantam. They are arguing that the government, not the ISPs, are the state actors. And I agree.
They have to argue that the ISPs are state actors since the ISPs are the parties that actually remove the content.
No, they don't have to argue this. They can also argue that the the parties that actually remove the content were compelled to do so by a state actor. Which is what they are, in fact, arguing.
You can’t argue that Congress is removing the content because Congress doesn't physically remove content from a service provider’s system.
Congress didn't physically block the content in the Playboy case. The state of Pennsylvannia didn't physically take down content in the CDT case. The state of Rhode Island didn't physically remove content from any bookstore in the Bantam case. I'm sure both of us could find other cases as well.
To be considered a state action, it is not a requirement that the physical removal be done by a state official. It is enough that it be done under the compulsion of a state actor (or actors). Congress is such a state actor, and a legally-enforcable statute is such a compulsion.
I think you’re totally delusional if you think the DMCA compels rightholders to send DMCA notices if they want their rights to be enforced. They can, and do, send notices that aren’t DMCA notices.
But if the notices are not compliant with the DMCA, they have no legal force whatsoever. That's not the case if they're DMCA-compliant notices. That distinction makes the notice-and-takedown process subject to Constitutional analysis.
And they can, and do, sue service providers without sending a notice.
And if the ISP complies with the DMCA statutes, the judiciary is required to dismiss those lawsuits.
Do you or do you not agree that it can't be a prior restraint unless the service provider is a state actor? [...] Do you agree that the service providers have to be state actors or else it can’t be a constitutional violation?
I do not agree. It can also be a prior restraint if the service provider is compelled to act by statute. See above.
Do you or do you not believe that private parties, when compelled to act by statute, are "magically transformed into state actors" through their compliance?
But you don’t grasp that your silly theory would mean that everyone who follows the law is a state actor.
By my "silly theory," the actions compelled by the law would be attributable to the state that enacted that law.
But by your "silly theory," a state can enact laws that people are compelled to follow, but it is not a state action unless those people meet the "state actor" requirement.
I've already posted several quotes that support my "silly theory." You have posted none that support yours.
I pointed out quotes above of the Supreme Court saying that even regulated business, whose conduct absolutely is specified by legal statute, are not state actors.
And as I pointed out, repeatedly, that it's only the case because the legal statutes don't regulate the conduct in question. The statutes regulate unrelated conduct. The question was whether that regulation turned them into state actors to such a degree that all of their conduct (regulated or not) could be considered "state action."
Private actors don't need to be transformed into "state actors" of this particular variety for their acts to be attributable to the state. If their actions are compelled by statute, it is still a state action.
You haven’t, and can’t, find one single case where the party that imposed the restraint wasn’t a state actor.
You must have a different definition of "impose" than everyone else. From Merriam-Webster: "to cause (something, such as a tax, fine, rule, or punishment) to affect someone or something by using your authority." The free legal dictionary offers these synonyms: command, compel, decree, dictate, direct, drive, enact, impel, ordain, order; bring under rule, oblige, require, or subject to authority. (And more along those lines.)
Thus, "the parties that impose the restraint" need not be the same as "the parties that actually remove the content." The question isn't who carried out the restraint; the question is who provided the authority for the restraint.
So, if Congress (or any other state actor), by the authority of law, obliges an ISP to restrain content, they have "imposed" that restraint. It is not necessary that Congress choose the specific content, or physically remove the content, or whatever; they "impose" the restraint by enacting the law. That is in agreement with all the cases I have cited, and no case I am aware of has decided otherwise.
It’s simple extrajudicial, private action
And, here, you're again using "extrajudicial" as a synonym for "extralegal." An action does not become a "private action" merely because it's extrajudicial. Conduct that is specified by statute is not "merely private conduct," whether the conduct occurs extrajudicially or not.
And if it's an otherwise private actor imposing the restraint, following Congress's law, then it's not a constitutional violation unless that private actor is a state actor.
Restating your claim does not make it correct. And it is not correct. If it's an otherwise private actor carrying out the restraint, by following Congress's law, then it certainly is a Constitutional violation. That's exactly what happened in Playboy. If you substitute "the state" for "Congress," it's exactly what happened in CDT, Bantam, and probably hundreds of other First Amendment cases.
You have cited no authority - none whatsoever - for this claim. Because it is simply not true.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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(1) 512(f) creates a cause of action against the sender of a takedown notice, so in the initial stages at least, Lessig would sue (and is suing) Library Music. If that suit fails for the reasons specified in (3), then he could institute an action against the government itself.
(2) The initial cause of action would be the one specified in 512(f). If this cause of action fails, then there could be a cause of action against the government, since the government enacted (Congress) and enforced (judiciary) the conditions under which the 512(f) action failed.
(3) A 512(f) suit does not require that the sender be a state actor. However, in interpreting and enforcing the 512(f) action, the judge (as a member of the judiciary branch) is a state actor.
In that lawsuit, as in all judicial actions, the judge is Constitutionally required to interpret and enforce 512(f) (as part of the DMCA generally) such that it is consistent with the First Amendment. If that is not possible under the language of 512(f), then 512(f), and possibly the entire DMCA, is itself unconstitutional.
So, if that's the case, then Lessig could bring a civil suit against the government for enacting 512(f) (or possibly the entire DMCA) such that its enforcement infringed upon his First Amendment rights.
But we're not at that point yet. We're at the point where the judge must interpret 512(f) in such a way that the DMCA comports with the First Amendment. If he does, no problem. If he can't, he must render the DMCA unenforceable.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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I am not pretending to be an expert on every legal doctrine. I am saying that even a non-expert like me can see that you're wrong.
The party that imposes the restraint or deprivation must be a state actor. You haven’t disproved that,
Nor do I have to disprove that, because I never claimed otherwise. My argument is, and always has been, that the party that is imposing the restraint is Congress (through enacting the DMCA statutes) and/or the judiciary (through enforcing them).
Actions are done by actors. It’s really simple.
And if those actions are "fairly attributable to the State," they are state actions. It's really simple.
That doesn’t change the fact that Seltzer and Mike are arguing prior restraint when they say that more procedural safeguards are needed before the speech is restrained.
Yes, they are. What they are not arguing is that the people who are imposing the prior restraint are ISPs, acting on their lonesome. The only one making that argument is you.
That’s why Seltzer and Mike argue that the DMCA “compels” them to act. Without that compulsion, there can be no state action as to the party that causes the restraint.
True, but immaterial, since the DMCA does in fact "compel" ISPs to act. It also "compels" the alleged infringers to act by a process strictly described by the DMCA statutes (at least, if they don't want their First Amendment rights to be violated). And it "compels" rights holders to act as strictly proscribed by statute, if they want their (state-created) rights to be enforced.
The only way a Constitutional analysis could be avoided, is if the conduct of ISPs, rights holders, and takedown victims was all "merely private conduct" - as in A, above. This is obviously false.
You have not shown a single case where it was determined that conduct specified by legal statute is "merely private conduct." And you can't. Because it's not.
Mike can delete all of our constitutionally protected comments from his website as he pleases.
But if he was doing so because it's the law, then it would be unconstitutional. It would be unconstitutional even if Mike was not "magically transformed into a state actor." It would be unconstitutional even if Mike did not face personal liability under a 1983 action.
The question in general is whether Congress (state actor), in enacting the DMCA requirements (state action), was committing prior restraint, because the statutes require ISPs to take down content without the necessary safeguards. The question in the instant case is whether Judge Stearns (state actor) interpreted 512(f) liability (state action) in a way that encourages or endorses the censorship of protected speech.
You're arguing that these questions cannot even be asked, because sending a DMCA notice (as specified by statute), which causes ISP censorship (as specified by statute), is somehow "merely private conduct." And furthermore, that this immunizes Congress and the judiciary from Constitutional scrutiny.
It is a ridiculous argument.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Mike was citing Seltzer, and they both were making the argument that the speech at issue couldn’t be restrained until there had been an adversarial hearing. That’s the classic prior restraint argument.
For whatever reason, the site ate that part of my comment.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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The court looks at the defendant to determine if he or she is a state actor. If so, then it’s state action. And if not, then it’s not.
No. The court looks at the action to see if it can be "fairly attributed to the state."
Let's assume that there is actually a Constitutional right being violated by some action. To resolve the "state action" issue, courts make these determinations, generally in this order:
1. If the actor was someone who holds a position of official authority within any branch of the government, it is a state action. (Ft. Wayne Books, the ICE seizures.)
2. If an otherwise private action is actually enforced by the state (e.g. through seizure, preliminary injunction, or judicial enforcement of a private contract), then it is a state action. The state officials (judges, law enforcement officials, etc.) are the state actors. (NYT, NAACP, Shelley, etc.)
3. If the act was done "by private parties done under the compulsion of state law," it is a state action. State law includes "any statute, ordinance, regulation, custom, or usage" having the force of law. The "state actor" is the state itself, since "it is the State that has commanded the result by its law." (CDT, Bantam Books, Playboy, Peterson.)
This determination does not require that the private party be "magically transformed into a state actor," and in these situations, no court that I am aware of has claimed that it did.
This sub-test has a few lemmas:
3a. "Compulsion" need not require formal state sanctions; the sanctions may be informal or merely threatened. (Bantam Books, CDT)
3b. "Compulsion" is not limited to punishment; a private actor can also be compelled through "significant encouragement." (Carson)
3c. The mere possiblity that private actors can obey the law in ways that are not unconstitutional, does not mean their actions are not commanded by the state. If the "operation and effect" of their obedience results in unconstitutional action, the state is responsible, and the law is unconstitutional. (CDT, Playboy)
3c. The law is unconstitutional even if the private party would have acted as he did independently of the existence of that law. (Peterson)
4. If the action was done by someone who is not a state official, and was not done "under the compulsion of state law," only then is it necessary to determine whether the actor is "transformed into a state actor." There are several different tests for this:
4a. If the private actor was "jointly engaged with state officials in the prohibited action," the private actor is transformed into a state actor. (Burton, Adickes)
4b. If the private actor is "engaged in actions that are traditionally and exclusively within the province of the state," they are a state actor, and their actions are state actions. (Marsh, Schneider)
An action fails to be a "state action" in these cases only:
A. When the action is "merely private conduct" - conduct between purely private actors, voluntarily and privately enforced, without any state involvement whatsoever. (No case that we have discussed meets this criteria.)
B. When the action is otherwise "merely private" (as in A. above), but done by an actor who is state-compensated or state-regulated in ways that are unrelated to the conduct. (Moose Lodge, Jackson, Carson)
C. When the ordinance which specified the action has no force of law, but is "educational and advisory merely." (Standard Computing Scale Co. v. Farrell)
Congress, who created the DMCA statutes, meets 1. The judiciary, who must consider DMCA compliance, also meet 1. The recipient of a DMCA notice meet 3. It could also be argued that the sender of a DMCA notice meets 4b.
The one thing that it is not is A, "merely private conduct." Arguing otherwise is ridiculous.
- Lugar v. Edmondson Oil
That is clearly the type of challenge that Mike and Prof. Seltzer are talking about.
Service providers deciding to take down content because of the fear of secondary liability is not illegal.
If that content is protected by the First Amendment, then yes, it is. When ISPs are threatened with legal liability (unquestionably a state action), as determined by legal statute (also unquestionably a state action), if ISPs don't take down protected content, then the state has censored protected speech. There is absolutely no question about this.
There is also no question that this is what the state does. If ISPs don't follow the DMCA process, they lose their protection from state action, regardless of whether that content is Constitutionally protected or not. A very small minority may choose to lose that protection, but only if they're certain they don't need it, and that will never happen when the line is "dim and uncertain."
The only chance the DMCA has to be Constitutionally valid is if the statutes make sure that such "dim and uncertain" content never makes it into a DMCA notice in the first place. If the statutes provide effective deterrents to the senders of DMCA notices, such that they do not send notices in "dim and uncertain" cases, then I believe the statutes pass Constitutional muster. But if they don't, then the statutes have the "operation and effect" of silencing a significant amount of protected speech. And that is unquestionably unconstitutional.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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If the DMCA was some clear violation of due process, do you think no one else would have challenged it in court by now?
Who, exactly, do you think would challenge it?
The copyright holders benefit from it, because they do not need to go through the courts in order to take down speech. Even so, many don't like it - for the opposite reason: they think that they shouldn't have to act at all for infringing speech to magically disappear. They've continuously list that battle in court, however, so now they're trying to change it by bribing Congress instead.
The ISPs might stand up for the rights of their users - except that the DMCA offers them blanket immunity from them, too. The only thing that's left is a clear and meticulously-defined process that grants them immunity from the lawsuit-happy rights holders that are out to get them, and the legal muck that is secondary liability law. What ISP would want to rock that boat?
So the only people with a strong motive to challenge it are members of the general public. People who do not have the time, energy, or resources to bring a suit over anything. People who have been shown, again and again, that courts enforce copyright laws, not to protect them, but to destroy them.
It's a miracle that even this situation made it to court.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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The point of the state action doctrine is to look at the actor that is causing the deprivation to determine if they are a state actor or not.
You have it exactly backwards. The point of the state actor doctrine is to look at the actor that is causing the deprivation to determine if their acts are a state action or not.
But that is not the only way that an action can be a state action. The "state actor" doctrine (at least in the tradition of Marsh et. al.) is a subset of the "state action" doctrine.
All that is necessary is that the regulation "be said to in any way foster or encourage" the acts that caused the loss of Constitutional rights (from Moose Lodge v. Irvis).
Whether the DMCA does that is up for debate. But that is the debate that is relevant. Neither the DMCA nor any other statute needs to have private citizens "magically transformed into a state actor" to be a state action.
And that gets us back to the entire reason this sub-thread was started. By now, even you must admit you were wrong when you said "Mike is arguing that the recipient of a DMCA takedown notice is imposing a prior restraint."
The only one making that argument is you - and only so that you can "debunk" it. He is - and always was - saying that the state was imposing a prior restraint by enacting the DMCA procedures. You can (and, I'm sure, will) argue that his argument is deficient for that reason. That, at least, would be honest. You would probably be wrong, but at least you wouldn't be arguing against a straw man.
To everyone else in the peanut gallery: I'm sure you're getting tired of this pissing contest. So, I'm going to just post a bunch of judicial quotes that, I believe, show that Average Joe A.C. is wrong.
Read and digest them, follow the links to the full cases, do the "wiki walk" to other cases that are cited. If you do that, you will be more and more convinced that Cowardly Joe here is being deceptive - regardless of whether you think I'm right or not.
- Adickes v. S. H. Kress & Co.
- Carson v. Springfield College
- Peterson v. City of Greenville
- New York Times Co. v. Sullivan
- NAACP v. Claiborne Hardware Co.
- Paul v. Watchtower Bible & Tract Soc. Of New York
- Burton v. Wilmington Parking Authority
- Piotrowski v. City Of Houston
On the post: Court Says ASCAP Can't Selectively Remove Songs From The Blanket License It Gives Pandora
Yup
...Now, I really gotta get to work.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Sorry, "disobeying" that statute had legal consequences. (By "legal consequences," I just mean that the determination of whether they followed the statute or not would make any kind of difference in a court of law.)
And now, I have to get to work.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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I’m not surprised you’re running away.
I'm not "running away." When I said I didn't have time for this nonsense, I was not being glib.
I am in college full-time, taking 400-level computer science and mathematics courses. Before school, every day, I work for a startup, composing music and programming a sound engine for their Android app. I am so pressed for time, that just today I had to cancel a gig, because I don't have any time to practice. I'm not studying law, so for me to spend any more time on this would be, literally, nonsensical.
In any case, insulting me will never convince me or anyone else that you're right. All you have to do to show I'm wrong is come up with a single court case, where:
- an action was taken that infringed upon someone else's Constitutional rights;
- that action was explicitly defined by a government statute;
- following that statute had legal consequences;
- yet that action was found to be outside the reach of Constitutional analysis, because it failed to reach the level of a "state action."
Good luck with that.
I still won't reply here, because I can't spare the time. But at least the two or three people who still give a shit about this thread will think you've won. And that's clearly the only thing you care about.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Goggle publicly admits that it doesn’t take down content pursuant to every notice it receives.
So far as I know, Google - like all ISPs that I'm aware of - only ignore invalid DMCA notices. As they are told to do by the DMCA statutes.
Its decision to take down content is voluntary, not compelled.
Once again, that argument was shot down in Bantam. Also, you're ignoring that bit in Carson where they mentioned "significant encouragement." By granting immunity from legal liability (a state action), it does in fact provide "significant encouragement."
Your argument could only hold water if the DMCA had no legal force whatsoever. It must be, like a standard of weights and measures, "educational and advisory merely [...] and not a rule or regulation of a legislative character" (Standard Computing Scale Co., Ltd. v. Farrell).
Honestly, the idea that ISPs follow the DMCA for purely voluntary reasons is so completely loony, I have no idea how you can make it with a straight face.
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974). The fact is that even heavily regulated businesses are not necessarily state actors.
The Jackson action (ha!) was not in any way regulated by the state, so it was not a state action. That was never in dispute. The test was whether the power company was nonetheless a state actor, solely due to the fact that it was state-regulated in unrelated ways.
In other words, the test was whether the power company was so involved with a state to be in a joint venture with the state (as in Burton v. Wilmington Parking Authority); or whether it was performing a function traditionally and exclusively performed by the state (as in Marsh v. Alabama).
None of that applies if the actions themselves are specified by statute. If that's the case, the actor does not need to be in a joint venture with the state, and does not need to be performing a state function.
On a separate note - it could be argued that the sender of a takedown notice be a "state actor" in the fullest sense of the word, through the Marsh test. They are allowed to demand, with the power of the state at their disposal, that ISPs remove speech from circulation, because it "is not authorized by ... the law." That is a function traditionally and exclusively performed by the judiciary.
Of course, that argument is unnecessary. Their actions are specified by statute, so they act "under color of any statute" (duh). That test applies to "every person," not just to people acting on behalf of the state.
I think he mentioned Arcara in a footnote, but I might be confusing that with something else.
It was mentioned in a footnote in one of the file-sharing cases - Grokster, Napster, I don't remember - because it was brought up by one of the litigants. The Supreme Court called it an "interesting question" - and instead used the O'Brien standard.
To date, Arcara has been determinitive in absolutely no copyright case whatsoever. Because it can't be - it only applies if the regulated activities "manifest absolutely no element of protected expression." As both London-Sire v. Does and Sony v. Does make absolutely clear, even simple piracy "has some First Amendment value" and "qualifies as speech entitled to First Amendment protection."
It certainly does not apply to the ICE seizures, which were "imposed on the basis of an advance determination that the distribution of particular materials is prohibited" - putting it explicitly out of the reach of Arcara.
You were wrong; you were clearly wrong; and you have not once admitted it. Not only did you not admit it, you fabricated a court ruling in your mind that said you were right.
That really says it all.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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No, but I can't find that in this case, either.
There are, of course, many prior restraint cases - perhaps even the majority - where the restraint was carried out by private actors who weren't considered to be state actors. Just like taking down content due to a DMCA notice is carried out by ISPs.
But in all those cases, like ISPs responding to takedown notices, they did so because it was specified by law. Thus, their actions were attributable to the state; it was the state who imposed the restraint.
This is the general rule when private actors are following state statutes:
- Carson v. Springfield College
[I]n Pappert, the restraint was carried out by the government.
That's not what the government argued:
On a separate note, I'd like to reply to this:
I recall that the court did find in the government’s favor, citing Arcara no less.
You recall absolutely, 100% wrong. Not one of the copyright seizures resulted in a ruling for the government.
The closest there was to a judicial ruling in the government's favor was the denial of Puerto 80's 983(f) motion. But when the case moved forward, the judge dismissed ICE's original complaint. (He gave them a deadline to re-file - which the government missed by months, eventually dropping all charges after the MyVidster ruling.) And the judge certainly did not cite Arcara.
Significantly, however, the Government's memorandum did. That you would remember the prosecution's justification as a ruling in their favor says a lot about you.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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No. For there to be a prior restraint, there needs only to be a state action. Whether that state action is actually carried out by private parties or not makes no difference.
So with the Commission in Bantam, the Commission could not be imposing a prior restraint unless the Commission was a state actor.
In Bantam, the parties who actually carried out the prior restraint were the booksellers. In Playboy, they were cable companies. In CDT, like the DMCA, they were ISPs.
In both the Playboy and CDT cases, the private actors had a choice in how to implement the censorship. The state made exactly the same argument you are making: that because the prior restraint was actually carried out by private parties, who chose the method of censorship, it was beyond the reach of First Amendment analysis. They were completely shot down.
Both parties, though not state actors, were acting under the influence of the law. The moment the law exerts an influence a party's actions, the state is implicated. That is all that is required for Constitutional analysis.
Of course that law is open to constitutional challenge, just like I have repeatedly said above the DMCA is. But it’s not a procedural challenge.
It wouldn't be immune from a procedural challenge. (Of course, in my scenario, it wouldn't be necessary to make one.)
Yes, enacting the DMCA is state action. But following the DMCA doesn’t turn a private actor into a state actor.
Because the DMCA is a "state" statute, following the DMCA is a state action, at least for the purposes of Constitutional analysis.
Just as the law that says I have to mow my grass (and there really such a law where I live), I’m not a state actor just because I follow the law and mow my grass.
It means that mowing your grass is a "state action." If mowing your grass somehow deprived people of Constitutional rights, the state would be implicated.
If the party that actually imposes the restraint is not themselves a state actor, then it can’t be a prior restraint.
Again, both Playboy and CDT show you're wrong. It is only necessary that the party imposing the restraint be endorsed, coerced, or influenced by the state. There is no question that this is true of both the sender and the recipient of a DMCA notice, private actors though they be.
The only acts that escapes Constitutional examination are extra-legal acts between private parties. The moment the state gets involved at any level, it comes under the purview of Constitutional analysis.
For example, if I hire you to mow my lawn and you agree, we have a contract. That’s private action, even though I could take you to court should you breach.
If there is a statute that specifies the form and substance of that hiring agreement, then it is not a private action. The statute falls under the purview of Constitutional analysis, even if you never take me to court.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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That is quite clearly not what I said. Since you seem to have a reading problem, I'll repeat it, in bold:
In all of those situations there is a state actor. It is called the state.
In your examples, the state actor is the legislative branch of the state. They are the ones who passed the laws, and passing a law is a state action. For the purposes of Constitutional analysis, it is completely immaterial whether the people who obey those laws are state actors or not.
Say, for example, that a state government passed a law that said white people are immune from lawsuits by black people. Are the white people "state actors" under that doctrine? No, they're not. Does that mean that the law is immune from Constitutional analysis or the Fourteenth Amendment? No, of course not.
That specific argument was shot down in CDT v. Pappert. Were the ISPs considered "state actors?" No, they were not - but it didn't matter, because the operation and effect of the law was that speech was blocked. Neither were the booksellers in the Bantam case, or the cable operators in Playboy v. U.S. It made no difference at all, because they were obeying the law, and the state is responsible for the consequences of that obedience.
It is similar with the DMCA. That is law passed by Congress. Enacting it is a state action for the purposes of Constitutional analysis. If following the law means that someone's First Amendment rights are abridged, then it makes no difference whatsoever if either the sender or the recipient is a "state actor." It makes no difference if following the law happens extrajudicially, because the judiciary is not the only kind of state actor. The state actor is Congress, and the state act is enacting the DMCA statutes. Congress is responsible for any free speech that is blocked due to the DMCA statutes, because enacting those statutes is itself a state action.
You seem to be confusing the "state actor" doctrine, developed through case law, with the notion of a "state action." The "state actor" doctrine arose to address whether a private action, done due to no overt legal obligation, is nonetheless attributable to the state. A "state action" has a much lower bar. It covers any act performed by any branch of the government, and any act performed under the color of law. It does not require that any private party be considered a state actor. For the purposes of Constitutional analysis, any action, even actions between private parties, become "state actions" the moment they are able to be enforced by law.
No, you said “substantive challenges to statutes are also prior restraint,” which shows you’re confused about the difference between substance and process.
There is substantive First Amendment analysis, and procedural First Amendment analysis. The courts have referred to both as "prior restraint" at different points. You are focused, exclusively, on procedural prior restraint. That's not the only kind of procedural analysis, and it's not the only kind of prior restraint.
But that's really a tangent, so I'm going to drop it.
You said, "Sending a DMCA notice is not an extra-judicial action."
I said, "sending a DMCA notice is not an extra-judicial action, as that term is normally applied." The phrase is usually used in tort law, where it is (for all intents and purposes) a synonym for "outside the legal system." DMCA notices are not done outside the legal system. They may be done outside a court of law, but they are not private acts between private parties.
So are you now admitting that it does vary with the difficulty?
I never maintained that it didn't. I've maintained that it does not vary solely with the difficulty, which is what you have been arguing. The "dim and uncertain line" is not the origin of procedural safeguards. The origin is the general principal that protected speech should not be blocked with unprotected speech. The difficulty of that determination certainly contributes, but it's not the sole yardstick, and additional procedural safeguards are always necessary. For example, even if it was trivially easy to tell child pornography from protected speech (the Camfield standard), the "informal notices" in CDT v. Pappert would still be unconstitutional, according to the Court, because "the ex parte, probable cause determination provided for in the Act is insufficient."
Pull up the posts you have in mind where I’m wrong, and if I agree, I’ll admit it here and now.
Do you admit that you were wrong about the copyright transfers in Righthaven? Do you admit that you were wrong when you claimed that ICE sent direct notices to the websites that they took down, that the site owners would get their day in court, and that the court would find in ICE's favor? Do you admit you were wrong when you said the Arcara standard applies to copyright infringement in general, and the ICE seizures in particular? Do you admit you were wrong when you said that linking to streaming content constitutes copyright infringement?
I'm sure I could dig up more, but those are the ones I remember. I don't have time to actually hunt down the comments.
No, I’m here having a debate.
For now...
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Ha! Sorry, it was 983 - the one I had originally thought they should be using (that you thought was wrong). I mixed up my numbers there. Oops.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Yes, in all of those situations there is a state actor. It is called the state.
When private parties obey the law, and the "operation and effect" of that obedience is the loss of Constitutional rights, it's not necessary that the private parties be "state actors." There is already a state actor: the state that enacted the law.
So if, by some wild stretch of the imagination, driving at the speed limit somehow violated First Amendment rights, then speed limit laws would be unconstitutional.
On the other hand, if there were no speed limit laws whatsoever, and people (somehow) lost their First Amendment rights when others drive at that particular speed, then driving at that speed wouldn't be unconstitutional.
The test is whether a private actor's actions can be attributed to the state. When that actor is following laws enacted by the state, that's true by definition.
You've shown that you don't understand that Seltzer and Mike were arguing prior restraint
I never said they weren't arguing prior restraint. I said they weren't arguing prior restraint by the ISPs. And they weren't. You are wrong.
You've shown that you don't understand the difference between substantive and procedural First Amendment analysis.
No, I've shown that "prior restraint" has also been used to describe a substantive analysis by the courts. And I was right.
You've shown that you don't understand what extrajudicial means.
I understand it OK, at least for a non-lawyer. It's just that in this context (the context of private actors and contract law), it's not usually used the way you're using it. "State action" is certainly not a synonym for "judicial action," which is (if I understand you correctly) what you're claiming.
You've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment varies with the context and the difficulty of separating protected and unprotected speech.
And you've shown that you don't understand that the amount of procedural safeguards mandated by the First Amendment doesn't vary solely with the difficulty of separating protected and unprotected speech. Which is what you claimed.
Yet, you never admit that you were wrong, and you never stop pretending like you're an expert on the very topics that you've demonstrated you have little grasp over.
That's weird, because my track record on the law is much better than yours. Whenever we've had these stupid debates, and a court has later ruled on the issue, you've been wrong and I've been right.
Yet you have never, once, admitted it. Ever.
Oh, by the way, I did admit I was wrong and you were right once. When we were first having a debate about the ICE seizures, way back in the day, I thought that ICE was required to follow 18 USC 983, "General rules for civil forfeiture proceedings." You said I was wrong, because that didn't cover judicial forfeiture, and you called me an idiot for it. And you led me, instead, to 18 USC 985, since it was the only section of 46 that dealt with judicial forfeitures, despite the fact that it dealt with real property.
So, I assumed I was wrong. I put 18 USC 985 as the seizure law in the first article I wrote for Techdirt. And you insulted me for it. As it turns out, what statute was ICE using? 985.
Shows what I get for listening to you. The only thing you've proven here is that you don't know what you're talking about. Either that, or - and I find this more likely - you're knowingly misinterpreting the law in order to attack any position that Techdirt takes.
Oh, in case you forgot, now's usually the point when you start polluting every single story on this site with nothing but barnyard noises. You've proven you can be a Speak-n-Spell too, I guess.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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In the context of private contracts, the term "extrajudicial" means "outside the legal system." It is used to describe such things as settling contract disputes through private mediation, or settling a lawsuit outside of a court of law.
The DMCA is not remotely like this. No party voluntarily agrees to follow the DMCA as part of a private negotiation. Both the form and the content is determined, in minute detail, by Federal statute.
In any case, an act that is extrajudicial can still be a state action.
Nonsense. They can send, and did send, takedown notices without the DMCA.
No, they did not. They may have sent requests to take down material, but those were not "takedown notices" as specified by the DMCA.
Furthermore, the response was not dictated by any statute. An ISP might, for example, have attempted to escape liability by cutting off all beneficial financial relationships (e.g. ads) with the user, but still leave the content up. Or they may have themselves made a judgement call about the material's legal status. Or they may have feared a lawsuit from the user, rather than the copyright holder, and so done nothing. Or - most likely of all - they simply would not have allowed user-generated content at all, and tons of free speech we take for granted (including this conversation) would never have happened.
At the time, there was not much case law dealing with secondary liability for ISPs, so it's disingenuous to pretend that ISPs would react exactly the same way absent the DMCA.
Of course it's voluntary.
If their response is dictated by statute, it's not "voluntary." Pretending otherwise is utter horseshit.
The coercion comes from the threat of liability for copyright infringement
...and they can only be held liable through state action. What is also coercive is the granting of immunity from state action if ISPs follow the takedown system.
Don't pretend that website can just ignore the DMCA with legal impunity. It is idiotic. The DMCA is not a mere recommendation.
The Commission there was set up under state law to investigate and recommend the prosecution of certain violations. That's a state actor.
The DMCA system was set up under Federal law to handle certain copyright violations. The copyright holders are granted the authority, under Federal statute, to make a determination traditionally handled by Federal judges - namely, that speech can be censored because it "is not authorized by [...] the law." The form and substance of a takedown notice, as well as the legal force behind those notices, are created by Federal statute - not through private contract. As are the specific steps that an ISP must take to escape legal liability - in other words, to escape state action.
In any case, that wasn't the point. Bantam makes it clear that the threat of state action is coercive enough to render compliance involuntary. If ISPs are even threatened with the state action of a copyright lawsuit for non-compliance, then their compliance is not voluntary.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Sending a DMCA notice is not an extra-judicial action, as that term is normally applied. The DMCA system did not spring up, ex nihilo, from agreements between rights holders and ISPs. It is not a voluntary agreement between private parties.
It is an action that is specified, in great detail, by Federal statute. When a rights holder sends a DMCA notice, they are exercising a power granted to them exclusively by the state. They are acting under state authority; it is a state action.
- Shelley v. Kraemer
When an ISP takes down that content, they are not doing so "voluntarily." They are obeying a Federal statute, and doing so under the threat of legal sanctions - not the threat of private actions. They do so because the law "has exercised coercive power or has provided such significant encouragement" that they have little choice but to take down the content.
It matters not a whit that they may not actually be taken to court. From Bantam, "the threat of invoking legal sanctions" is enough:
When a private party complies with a regulation specified by the state, then it is not a voluntary action, even if non-compliance does not actually violate any law. And when a private party exercises power granted to it by statute, it is not a private action, it is "performed under color of state law."
In order for the DMCA to be non-coercive, it must serve a "purely advisory" purpose; it must have no force of law whatsoever - no privileges for compliance, no penalties for non-compliance. That is utter bullshit. Nobody ever has thought it is merely advisory; if it was, it would be entirely superfluous.
On the post: MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use
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Not just fair use, but any defense to copyright infringement claims (de minimis, misidentification, the fact that the content was authorized, etc). Essentially, it gives copyright holders free reign to censor anyone without consequence, while those who are censored have no recourse at all.
If 512(f) was actually enforceable - like all the other parts of 512 - then the DMCA would pass Constitutional muster, because there would actually be consequences for censoring protected speech.
This is why I strongly disagree with Judge Stearns' reading of the DMCA. If rights holders can legally force ISPs to take down material, without considering whether the material is infringing under the law, then the DMCA is clearly unconstitutional.
I somehow doubt that's what Congress had in mind, but even if it was, Congress doesn't get to sidestep the First Amendment for the sake of expediency.
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