The chilling effects of a DMCA S.L.A.P.P.

According to a recent article in the Harvard Journal of Law and Technology (24 HVJLT 171) the Digital Millennium Copywrite Act (DMCA) poses serious first amendment concerns.  Under a notice and take-down provision, service providers such as www.youtube.com can qualify for safe harbor from secondary copywrite liability under the DMCA if they remove material which is asserted to be under copywrite by the claimant.  One powerful recent example of this originated in the weeks prior to the Presidential election of 2008.  Both the McCain and Obama campaigns uploaded video campaign material to www.youtube.com, and both had material removed from the website under the DMCA.  The claimants, in this case CBS News, Fox News, the Christian Broadcasting Network, and NBC News et al. would provide notice to the service provider claiming that the material in question was under copywrite.  The provider would then remove the material without any factual investigation, in order to comply with the notice and take-down provision on the DMCA thus exculpating itself from liability.  For the price of a finely worded letter the claimant succeeds in having the content removed and need not continue into costly litigation because their goal has been achieved.  The burden then shifts to the uploading party to either accept the removal, or petition the court for a determination that the material was not under copyright or qualified under the fair use exception, at the tremendous expense of both time and money and at the risk of exposing themselves to the possibility of copywrite liability.  By censoring speech without adjudication, the DMCA acts as a prior restraint against free speech, which in the words of Walter Sobchak, “the Supreme Court has roundly rejected.”

In this way the DMCA provides a ready-made S.L.A.P.P. for groups determined to censor disagreeable speech.  In our illustrative example from the 2008 campaign, after realizing material had been removed from www.youtube.com the McCain campaign wrote a letter to the website in short, warning them of the strong first amendment presumptions in favor of political speech.  In reply the website basically told them that the provider is not entitled nor expected to adjudicate these disputes, they removed the material in accordance with the DMCA and suggested that perhaps the congressman should work to change the law if this result seems unconstitutional.  Assume for a moment that the uploading party was not a multi-million dollar presidential campaign headed by a long time congressman but rather a small group or single individual uploading political speech on the internet.  Without a legal aid staff they would be unlikely to even send the letter, even though this clearly had no effect, much less take the matter to court in order to seek a favorable judgment on first amendment grounds.  Under the DMCA the well-resourced corporate party can choose to have speech and speech related content information removed from public view at little expense, while the speaker if left the tough row-to-hoe in the courtroom.