There's liability for making misrepresentations in the notice.
And I'm not sure where you get the idea that there's a huge problem with bad notices. Techdirt highlights the outliers. It ignores completely the millions of notices that are rightfully sent.
I think that's a narrow view. The DMCA takedown notice states "that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." 17 U.S.C. 512(c)(3)(A). And one who misrepresents things in the notice can be liable under 512(f).
The recipient service provider relies on the notice to know whether they should take down the material. If they don't, they are potentially liable thereafter as a contributory or vicarious infringer. The notice requirements mean that a service provider doesn't have to second-guess about whether it's liable for content on its service.
The notice and takedown system is a compromise. It gives service providers certainty in their legal exposure for operating systems that are used to infringe. And it gives copyright owners a way to get infringements taken down.
Most of the time, a person who uploaded infringing content faces no liability. The takedown notice takes the content down, and the copyright owner doesn't then go after them. So the system actually keeps a lot of infringers out of hot water.
It's not perfect, but it's a good balancing. If you only look at one aspect of it, as Mike usually does with these sorts of things, then you're missing the bigger picture.
A limitation on someone's ability to speak freely is not the same thing as a violation of their First Amendment rights. For example, if Mike were to block your IP address and not let you post on Techdirt, that's his right to do since it's his website. Your ability to speak freely on Techdirt is taken away, but your First Amendment rights have not been implicated. Now, if the government takes over Mike's servers and deletes all of your posts and blocks you from posting for no reason, then you'd have a First Amendment violation.
Legitimate speech being blocked by a DMCA takedown notice does not equate to a violation of someone's First Amendment rights. The First Amendment doesn't guarantee anyone the right to post on YouTube. And the government was not involved in the takedown. It's private action on a private website.
I appreciate the fact that many here are only capable of results-oriented thinking. Mike makes all sorts of legal arguments, but he doesn't feel particularly constrained by the actual law. He can't have it both ways.
dajaz1.com is a piece of property. There was probable cause to believe that it was being used to commit criminal copyright infringement. This was demonstrated by an agent via affidavit to a neutral magistrate judge who issued a seizure notice for the allegedly tainted piece of property. The owners of that particular piece of property were not prohibited from saying whatever they want--they just couldn't use that specific piece of property. The First Amendment argument there is weak. Instrumentalities of crime get seized for subsequent forfeiture all the time. Just because that instrumentality is also used for protected activities is irrelevant. The owners of the property did not have their First Amendment rights violated. They had their tainted piece of property taken away, just like you'd take away any other instrumentality of crime.
You're just finding situations where copyright had an effect on speech, but not situations where copyright caused an actual violation of someone's First Amendment rights.
I think we're just using the word "rights" differently. Let's start with that. I'm using right to mean that which is proper under the law. I have never thought of ethics as involving rights. I apologize if my understanding of the word differs from yours. I honestly don't understand what you're saying. Can you explain to me what an ethical right is? Thanks.
Claiming that the professor has "no credibility" is idiotic. Mossoff is very intelligent and respected. That Mike won't have a nuanced discussion about his own arguments shows me that he knows they're weak. I suspect Mike overcompensates for weakness with anger.
And where in the copyright clause of the Constitution is the word "property" used?
I said in the Constitution, but not in the Copyright Clause specifically. Mike said that copyright is "property" as that word is used in the Due Process Clause. The guarantee that no one can be deprived of property without due process of law includes copyright. In other words, since copyright is property, the government can't take it away without due process. If copyright weren't property, the government could take it without due process. So under the Due Process Clause, copyright is property. Just ask Mike. He agrees. So when he pretends like copyright isn't property, he's not being entirely honest (he's using a narrow, economic definition of the word "property," ignoring the constitutional meaning of the word that he admits includes copyright).
Here is the only lie that you should probably contend with: The current state and effects of copyright are not broken and are completely in-line with the First Amendment.
Your intent on conflating semantic bullshit with the actual issues is old, pathetic and not helping in the least to correct the issue that copyright, in its present state, is much more harmful than helpful to all those with any interest whatsoever up to and inclusive of those that currently benefit the most - large media conglomerates.
Do you actually have a specific, concrete argument, or is it just generalizations?
You're asking me to identify an ethical right, but I don't think there is such a thing. A right is a right, and ethics are ethics. I don't think I can answer your question because the question presupposes that there is such a thing as an ethical right.
I think if someone owns the copyright to a movie and if it's infringing for me to download that movie, then I am violating that owner's rights and I'm acting unethically. It's unethical because I'm violating the owner's rights, and it's unethical because that owner is selling downloads of that movie--I'm not paying the money that is rightfully being asked for.
Now, if someone is holding a gun to my head and telling me they will kill me and my family if I don't download the movie, then I haven't acted unethically. Nor have I probably acted unlawfully since duress is a defense.
I'd like to answer your question, but the honest answer is that I don't think the question makes sense. There is no such thing as an ethical right. Not to the best of my knowledge.
You could say that about any law though. When the police arrest the wrong man for a robbery, they prevent that man from engaging in free speech. Robbery laws censor free speech!
This is becoming a regular thing. While some insist that copyright isn't limiting free speech, there has recently been a string of situations involving official livestreams being taken down due to copyright bots. There was the Hugo Awards livestream and the DNC livestream... and now it appears that Salesforce's big event, Dreamforce, is having the same issue.
Mosso ff hasn't claimed otherwise. What he has claimed is that copyright "is not a violation of the right to free speech." So you are purposefully misrepresenting what he said. As is your typical pattern, you state a lie in one article, and then in another article you link back to the first lie and build another lie on top. And then all you have are lies built on lies.
So please explain to me how this article shows copyright actually violating someone's free speech rights. You can't (hence the need to lie).
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There's liability for making misrepresentations in the notice.
And I'm not sure where you get the idea that there's a huge problem with bad notices. Techdirt highlights the outliers. It ignores completely the millions of notices that are rightfully sent.
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The recipient service provider relies on the notice to know whether they should take down the material. If they don't, they are potentially liable thereafter as a contributory or vicarious infringer. The notice requirements mean that a service provider doesn't have to second-guess about whether it's liable for content on its service.
The notice and takedown system is a compromise. It gives service providers certainty in their legal exposure for operating systems that are used to infringe. And it gives copyright owners a way to get infringements taken down.
Most of the time, a person who uploaded infringing content faces no liability. The takedown notice takes the content down, and the copyright owner doesn't then go after them. So the system actually keeps a lot of infringers out of hot water.
It's not perfect, but it's a good balancing. If you only look at one aspect of it, as Mike usually does with these sorts of things, then you're missing the bigger picture.
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Goodwin had his property on the Megaupload servers. The First Amendment argument there is even weaker than dajaz1.com. It's a property issue. Goodwin himself dropped his silly First Amendment argument: http://ia600807.us.archive.org/2/items/gov.uscourts.vaed.275313/gov.uscourts.vaed.275313.91.0.pdf He's only arguing Fourth and Fifth Amendment right violations.
Universal using the DMCA to take down an ad is not the government acting--without government action, there can be no First Amendment violation: http://rationalwiki.org/wiki/State_action_doctrine
Same problem with your last two examples.
You're just finding situations where copyright had an effect on speech, but not situations where copyright caused an actual violation of someone's First Amendment rights.
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Can you point to one specific example above where copyright actually violated someone's First Amendment rights? Let's get specific.
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I said in the Constitution, but not in the Copyright Clause specifically. Mike said that copyright is "property" as that word is used in the Due Process Clause. The guarantee that no one can be deprived of property without due process of law includes copyright. In other words, since copyright is property, the government can't take it away without due process. If copyright weren't property, the government could take it without due process. So under the Due Process Clause, copyright is property. Just ask Mike. He agrees. So when he pretends like copyright isn't property, he's not being entirely honest (he's using a narrow, economic definition of the word "property," ignoring the constitutional meaning of the word that he admits includes copyright).
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Your intent on conflating semantic bullshit with the actual issues is old, pathetic and not helping in the least to correct the issue that copyright, in its present state, is much more harmful than helpful to all those with any interest whatsoever up to and inclusive of those that currently benefit the most - large media conglomerates.
Do you actually have a specific, concrete argument, or is it just generalizations?
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I think if someone owns the copyright to a movie and if it's infringing for me to download that movie, then I am violating that owner's rights and I'm acting unethically. It's unethical because I'm violating the owner's rights, and it's unethical because that owner is selling downloads of that movie--I'm not paying the money that is rightfully being asked for.
Now, if someone is holding a gun to my head and telling me they will kill me and my family if I don't download the movie, then I haven't acted unethically. Nor have I probably acted unlawfully since duress is a defense.
I'd like to answer your question, but the honest answer is that I don't think the question makes sense. There is no such thing as an ethical right. Not to the best of my knowledge.
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Mike said "While some insist that copyright isn't limiting free speech" with a link back to the earlier article about Mossoff.
Mossoff did not "insist that copyright isn't limiting free speech," he said it's not VIOLATING free speech rights.
Why must Mike misrepresent what Mossoff actually said?
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And the lie continues. Mossoff did not say that copyright doesn't "limit free speech." In fact, I pointed you to where he explains: "Actually, copyright does limit online speech..." http://truthonthemarket.com/2012/09/17/copyright-does-not-violate-the-right-to-free-speech/
Mosso ff hasn't claimed otherwise. What he has claimed is that copyright "is not a violation of the right to free speech." So you are purposefully misrepresenting what he said. As is your typical pattern, you state a lie in one article, and then in another article you link back to the first lie and build another lie on top. And then all you have are lies built on lies.
So please explain to me how this article shows copyright actually violating someone's free speech rights. You can't (hence the need to lie).
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