First Amendment Scrutiny in the DMCA's Future?

Although traditional First Amendment protections do not apply in the private context, thus according copyrights a historic exemption from the First Amendment.  However, in Eldred v. Ashcroft,  the Supreme Court “majority conceded that lower courts have spoken too broadly when declaring copyrights categorically immune from First Amendment challenges.”   The petitioners “maintained that copywrite law is a content-neutral speech regulation and … should, therefore, be subject to intermediate scrutiny.”   Although the challenge in Eldred was rejected, the Supreme Court narrowed copyright’s sweeping immunity from First Amendment scrutiny.  In this way, Eldred may have opened the door for future First Amendment scrutiny of copyright based statutes.   Perhaps since Congress has taken an affirmative step to enter the otherwise private arena in advancing both civil and criminal sanctions under the DMCA the Court should apply the First Amendment prophylactically to the statute, or even apply intermediate scrutiny.   

Did the Internet Shatter Our Notions of Traditional Dyadic Communication?

The traditional First Amendment battlefield is framed in terms of dyadic communication, a speaker conveys a message to a listener, the press transmits a message to a listener, and a publisher distributes a message to a reader.    In the vast majority of situation any government action will be focused on the originator of the message.   At times focusing civil or criminal penalties on the speaker based on the content or content neutral regulation, sometimes based on the location,  sometimes it is even based on conduct which may be construed as speech .  In rare cases the government will focus its regulatory attention on the receiver by punishing possession or receipt of communicative materials deemed to be illegal.   Traditional copyright regulation is also framed in terms of dyadic communication, and until recently the two distinct legal theories seemed to coexist without much friction, until the internet introduced a new multilayered, multimedia form of communication.  By its very nature the internet has changed the traditional dynamic of dyadic communication by embedding several layers of private actors between the speaker and the receiver.   It will be one of this century’s great governmental challenges to regulate speech in the absence of dyadic simplicity.  One of the government’s early attempts at both regulating speech in the absence of traditional dyadic communication and addressing the free-speech/copyright paradox is the Digital Millennium Copyright Act of 1998 (DMCA).   Within the DMCA is a safe harbor provision designed to protect Internet Service Providers (ISP) from secondary liability if they comply with the statute

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.

DMCA creating internet vigilantes?

I cannot attest to the validity of this video but it raises some interesting first amendment issues which may flow from the DMCA.

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.

"Kill Switch" Legislation.

Given the recent interruption in internet service in Egypt, and our recent discussion on the dread “Kill Switch”, the following may be on interest to you.  This is the nuts and bolts, as I understand them, of the most recent U.S. government attempt at “National Cyber-Security.” 

On December 15, 2010 Senator Joe Lieberman sponsored S. 3480 entitled, “Protecting Cyberspace as a National Asset of 2010.”  This suggested amendment to the Homeland Security Act of 2002 would create an Office of Cyberspace Policy under the Executive Office and within the Department of Homeland Security (DHS).  This office would be charged with developing policy and strategies to increase the security of the internet, oversee and coordinate among the many federal agencies in the security of the internet, ensure compliance, and enforce policy.   Additionally, the act would create the National Center for Cyber-security and Communications (NCCC).  The NCCC would operate under the DHS to coordinate private sector and government internet security plans and protect the national internet infrastructure.  It would also transfer the Office of Emergency Communications and the National Communications System from the Office of infrastructure Protection to the NCCC.  The NCCC director is also supposed to develop guidelines to protect the privacy and civil liberties of U.S. persons and intelligence sources and methods.

Far more startling than the proposed shuffling of acronyms ad nauseum, is the creation of the internet “Kill Switch”.  Essentially, the President when advised by the directors of the NCCC and the DHS, could declare a “national cyber emergency.”  The President is then required to notify the owners and operators of internet infrastructure (private ISPs) of the nature of the emergency, after the notification the NCCC director would begin immediately directing the owners and operators of private ISPs to implement planed protective measures (shut downs).  The shutdowns could in theory be limited in scope to contain or prevent a local or regional “emergency”.  The sunset on the “emergency order” issued by the President would be 30 days, with 30 day extensions of the order authorized to the director of the NCCC.