DMCA Conflicts with Free Speech

Ars Technica is one of many outlets commenting on a new paper by Wendy Seltzer, a copyright scholar and the person behind the Chilling Effects site. Chilling Effects is a warehouse of bogus takedown notices intended to illustrate how this practice stifles speech and expression.

It is not surprising that this practice of takedowns proven to be incorrect is at the core of Seltzer’s paper. Nate Anderson does a good job distilling this sixty page paper down to its core concepts. Essentially, the mandatory period that material must remain offline in the wake of a bogus takedown before it can be restored is a form of prior restraint. That is to say speech is suppressed before any discussion or adjudication can take place to determine whether that speech is legitimate. The cost of issuing a request is disproportionately low to the cost of recovering from an erroneous request. This encourages using takedowns regardless of any legitimate infringement claim.

The paper includes some reform proposals, any of which may help the situation considerable. Any one of requiring a burden of proof on issuance, adding a penalty on a successful counterclaim, or reducing or eliminating the 10 to 14 day wait period might be doable. I also wonder if a comparison between these proposals and SLAPP regulations, laws some states have passed to deal with litigation used to suppress speech or activity regardless of the ultimate merits in the claim.

Seltzer, however, urges a more extensive overhaul, not surprisingly. I agree with her reasoning, that the takedown regime operates much more on presumption of guilt, counter to much of the rest of our laws which assume innocence. I am also hugely concerned how this aspect has been modeled into the expansion of rights for copyright holders like what ACTA would require or with which the UK was just saddled in passage of the Digital Economy Bill.

2 Replies to “DMCA Conflicts with Free Speech”

  1. The core issue: “The cost of issuing a request is disproportionately low to the cost of recovering from an erroneous request.” Gotta change the cost equation to solve the problem.

    1. Exactly and all of the simpler solutions Wendy advocates would do just that, either raising the cost to issue a takedown or lowering the cost to recover from a bogus one.

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