The Adventures of Johnny Northside

John Hoff, a former UND Law student is being tried for defamation in Federal court in Minneapolis.  The charge is apparently the result of postings he placed on his personal blog which cast a disparaging light on Jerry Moore, a former member of the University of Minnesota’s Urban Research and Outreach/Engagement Center.  Moore was allegedly fired from his position at the University because of the postings on Hoff’s blog, The Adventures of Johnny North side (interesting reading).   The Grand Forks Herald article can be found here. 

DMCA Safe Harbor Analysis

In order to provide context for future posts this is an analysis of the statutory language of the Internet Service Provider’s (ISP) safe harbor provision of the Digital Millennium Copywrite Act  (DMCA) as codified in 17 U.S.C.A. § 512. 

Applicability:

For the purposes of the relevant statute ‘‘Service provider'' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. [17 U.S.C.A §512(k)]  This definition covers a broad spectrum of service providers ranging from companies providing free internet services such as www.blogspot.com and www.youtube.com, to internet carriers providing connectivity services. 

Safe Harbor:

The safe harbor provision shields ISPs from monetary and injunctive relief in claims arising out of copywrite law if the ISP: (1) does not have actual knowledge that the material on their system is infringing on copywrite, (2) is unaware of information that would create a belief that infringing activity is apparent, (3) once such knowledge is present the ISP “acts expeditiously to remove, or disable access to, the material”, (4) the ISP does not receive benefit directly from the infringing activity, and, (5) once the ISP has received notice that some material is alleged to be infringing on copywrite the ISP “acts expeditiously to remove, or disable access to, the material.”  Essentially, the moving party will send a notification to the ISP claiming that certain material is wrongfully posted on their website and infringes on a copywrite which the moving party claims to possess.  The ISP then will remove or block the material “expeditiously” in order to avoid secondary liability.  The material is removed without any form of adjudication.  At this point constitutional Due Process protections of the fifth and fourteenth amendments are clearly implicated and by extension the removal of speech related material without Due Process protection has a chilling effect on First Amendment Protections. 

Notice:

The notice must meet a few requirements under the statute to be valid for presentation to the ISP, these include: (1)must be a written communication including, (2) the signature of the of the copywrite owner or the  owner’s agent, (3) a list of the works claimed to be under copywrite, (4) information reasonably sufficient to permit the ISP to locate the material for removal, (5) the contact information of the party claiming infringement, (6) statement of “good faith belief” that the material is under copywrite, (7) statement that the information is accurate, and if filed by an agent a statement demonstrating authority to act.  Additionally, if any of these terse requirements are not substantially met the burden shifts to the ISP to contact the claiming party to resolve any confusion.   Once notice is made the immediate fate of the material is in the hands of the ISP, which is faced with the decision to either protect the speaker and risk potentially costly liability if the claim is adjudicated in favor the claimant, or to simply remove the material and qualify for safe harbor.  Which course of action is a profit motivated company most likely pursue?

Subpoena Power:

                Perhaps the most frightening element of the statute is that it provides the claiming party with subpoena authority which can be exercised to uncover the name and user information of the alleged infringer (speaker).  The request is made to the clerk of the District Court to subpoena the ISP for identification of the alleged infringer.  The request requires basically the same information as the original notification, as well as a proposed subpoena and a sworn declaration that the information will be used for the protection of copywrite.  The subpoena order would require the ISP to expeditiously disclose sufficient information to identify the alleged infringer.  If the request is made in “proper form” the clerk of court will issue the subpoena to the ISP. 

Speaker Protections:

17 U.S.C.A § 512(f) offers some very minimal protection against S.L.A.P.P. type misrepresentations made under the notice provision.  An adjudication must occur to defend against a baseless claim, if the defendant is able to prove the defense of misrepresentation the misrepresenting party will be liable for costs which resulted from wrongful removal and attorney’s fees.  On its face the defense seems adequate however; it still requires that the defendant actually appear in court, thus exposing themselves to the possibility of copywrite liability which would potentially be much greater than the value of the speech they are defending.  Generally, the ISP is provided protection for liability arising from wrongful removal of material after receiving notice even if the defense of misrepresentation is proven.

The defendant is provided with the ability to deliver a counter notification contesting the validity of the original take-down notice.  The defendant must provide a written communication to the ISP or the ISP’s authorized agent which: 1) includes a signature, 2) identifies the material which was removed, 3) provides a sworn statement of good faith belief that the material was removed as result of mistake or misidentification, 4) the defendant’s name, address, and telephone number, and 5) a statement of consent to the jurisdiction of the Federal District Court for the district in which they reside.  Again the potential defendant is required to subject themselves to a great deal of potential liability in order to protect the speech material from removal.

Chilling Effect:

The concern is that by providing safe harbor to ISPs for removing speech material from the internet without adjudication or even a determination on the sufficiency of the claim may be insufficient for the purposes of constitutional Due Process.  Without the safe guards of Due Process there exists great potential for abuse.  ISPs are in business for profit, protecting the speech of their users at their own peril is probably not their paramount concern.  As a result the ISP is likely to simply remove the contested content in an effort to insulate itself from potential secondary copywrite liability and the speaker, who is probably the most under resourced of the involved parties, is left with the Hobson’s choice of either accepting the removal of the material or fighting the expensive uphill battle for vindication in the Federal Courts.  The end result is a chilling effect on free speech.