DMCA Takedowns versus Free Speech

The Digital Millennium Copyright Act, or DMCA, gets a lot of bad press.  Digital rights management software, or DRM, is blamed on the DMCA’s anti-circumvention clause.  The MPAA went so far as to argue that the DMCA’s anti-circumvention clause even prevents fair use defenses.1  But it is not all bad.

Wired went so far as to call it the Law That Saved The Web.  The ‘saving’ feature of the DMCA is the so-called safe-harbor provision of 15 U.S.C. § 512(c).  In essence, service providers (website hosting companies, services like YouTube, Blogger, Google, etc.) are not liable for copyright infringement done by their users.2  There is a catch, however: The provider must not have known of the infringement, and it must take down the infringing material if provided notice.  This is the so-called DMCA take-down notice provision.  This has also become the new cause celebré for anti-DMCA forces.

DMCA take-down notices are not always sent for the right reason.  For example, sometimes the material in question is not copyrighted (or copyrightable).  Some folks attempt to use DMCA take-down notices for instances of potential Trademark infringement.  A Trademark is not a Copyright.  Another example are attempts to take down material used in a fair-use setting.  This is less clear than the trademark example because there is a question as to whether fair use applies to the specific copyrighted work, even if that question might be easily answered.

Techdirt has recently profiled a recent trend in using DMCA take-down notices to force political ads to be removed or modified.  Senator Feingold, in the Techdirt example, changed a political ad featuring NFL footage.

The fear described by anti-DMCA folks is that take-down notices are being abused.  The abuse results from the law’s requirement that a service provide “respond[] expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”3  The alleged infringer can respond by showing he has a right to publish the work, but the law uses a shoot first and ask questions later approach.

Therefore legitimate works can be brought down by illegitimate DMCA take-down notices because service providers, out of fear of losing their immunity to suit, take down works without evaluating each notices’ individual merit.  The fear is that this may chill free speech by incentivising take-downs and dis-incentivising due process for those who post allegedly infringing works.  Wendy Seltzer, in Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, lays out this argument in more depth than possible in this post.

DMCA take-down notices are especially troubling in the political cases profiled by Techdirt and others.  Political speech, and commentary relating to political speech, is perhaps the most highly-valued type of speech in U.S. law.  A legal framework encouraging the removal of that speech until the speaker can prove he has a right to say it flies of many free speech ideas.

Could this be the DMCA take-down notice Waterloo?  After all, a number of laws have run into the free speech buzz saw.  The most complete example is defamation law.  Unlike defamation in the U.K., where free speech rights are not enshrined in a written constitution as in the U.S., defamation in the States is gutted in most cases if you can tie it to political or public interests.

Another area where free speech has run up against an area of law is tort.  The Westboro Church case, recently heard in the Supreme Court4, dealt in part with whether free speech trumps Intentional Infliction of Emotional Distress (IIED).  Many observers expect free speech to trump even the despicable behavior of the Westboro Church.

So far, however, candidates have either ignored DMCA take-downs or submitted to the request.  Perhaps the DMCA Waterloo shall have to wait.

  1. See Reminder from the MPAA: DRM trumps your fair use rights, Wired (2009). []
  2. See 15 U.S.C. § 512(c). []
  3. See 15 U.S.C. § 512(c). []
  4. Snyder v. Phelps[PDF Transcript], Supreme Court docket 09-751. []


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