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Jawboning In Plain Sight: The Unconstitutional Censorship Tolerated By The DMCA
For better or worse, jawboning has been a hot topic recently, and it's unlikely that interest will fade any time soon. Jawboning, in broad strokes, is when the government pressures a third party to make that third party chill the speech of another instead of going after the speech directly. Because the First Amendment says that the government cannot go after speech directly, this approach can at first seem to be the "one easy trick" for the government to try to affect the speech it wants to affect so that it could get away with it constitutionally. But as the Supreme Court reminded earlier this year in NRA v. Vullo, it's not actually constitutional to try this sort of end-run around the First Amendment.
[....] there should be concern about Section 512 of the Digital Millennium Copyright Act and how it operates to force intermediaries to act against users and their speech, whether they would want to or not, and whether the targeted speech is wrongful or not.
[....] "Why now?" After all, the DMCA has been working its unconstitutional way for a quarter of a century, and we've been tolerating it. But tolerating the intolerable does not make it tolerable.
Yep! Just pretend it's a copyright issue and fraudulently file a DMCA, under plenty of perjury, to silence what you don't like.
(Score: 5, Informative) by day of the dalek on Wednesday November 20, @05:19AM (12 children)
TFS says that filing a DMCA claim with false information can incur the penalty of perjury. This actually isn't correct. Look at the text of the statute [cornell.edu]:
The penalty of perjury for a DMCA claim only applies to the part about the claim being submitted at the copyright owner's behest. As long as the person submitting the claim is authorized to act on behalf of the copyright holder, they can maliciously submit claims with false information and not incur the penalty of perjury according to the statute. The word "perjury" also appears in regard to submitting a counter-claim:
In this case, the penalty of perjury applies to submitting a counter-claim with false information. This still requires evidence that the counter-claimant knowingly provided false information. But it's notable that there's a different scope for perjury with the initial claim compared to the counter-claim.
Why should the law be stricter for submitting a false counter-claim than for an initial false claim? This effectively allows copyright holders to submit false claims with impunity while applying a stricter standard to counter-claims. It's a horrible law that's heavily skewed toward copyright holders. The safe harbor provision is good, but much of the rest of the DMCA is truly awful.
SUCK IT TREBEK [youtube.com]
(Score: 1, Funny) by Anonymous Coward on Wednesday November 20, @06:31AM (8 children)
How much do ya wanna bet that was an "honest oversight" on the part of the legislature.....
(Score: 4, Insightful) by DannyB on Wednesday November 20, @04:30PM (7 children)
Legislature and honest do not belong together in any one sentence, except for this one, therefore falsifying the first assertion of this sentence.
Some people need assistants to hire some assistance.
Other people need assistance to hire some assistants.
(Score: 1, Touché) by Anonymous Coward on Wednesday November 20, @05:50PM (6 children)
Your legislature is a direct reflection of the voters that reelect them, so maybe you should redirect your accusation about "honesty"
(Score: 5, Informative) by Spamalope on Wednesday November 20, @08:00PM (5 children)
Which rare exceptions, the peerage selects who may appear on the primary ballots. Voters can pick their favorite lizard, but it's gonna be a lizard.
(Score: 0) by Anonymous Coward on Wednesday November 20, @10:15PM (4 children)
That only happens due to voter apathy. They can petition outside the party system entirely, but they have to learn how to cooperate and do it themselves. It is their own dysfunction that the government reflects right now.
(Score: 3, Interesting) by TheReaperD on Thursday November 21, @11:16AM (3 children)
When the system is rigged, can you blame people for not wanting to participate? When you know that, no matter who you choose, they don't have your best interests in mind, you really don't care who wins. It's how Trump, a convicted criminal, bigot, misogynist, racist, anti-democratic serial liar, and wannabe mobster, won the 2024 election. We've gotten to the point where even lies about 'change' and 'draining the swamp' are more hope than the alternative, even when he promises to end elections! That's how disgruntled the average voter is. Yet, even with this obvious referendum, the Democrats blame 'woke' culture (the Republican mantra), rather than acknowledge that it's their sucking up to the banking and billionaire class that's the problem. When you have to go to banks and CEOs for handouts to get elected, there's no way that workers' rights can ever be on their agenda, beyond lip service.
Ad eundum quo nemo ante iit
(Score: 0) by Anonymous Coward on Friday November 22, @12:39AM (2 children)
You can't know if a system is rigged until enough people make the effort to vote out the incumbents. It is we, that allow our own herding and tribal instincts to be exploited by carnival barkers, that "rig" the system.
(Score: 2) by TheReaperD on Friday November 22, @10:02AM (1 child)
The problem is: The oligarchy chooses the two people you get to select from. This was proven beyond a reasonable doubt when Bernie Sanders, a true populist, was kicked out of the race by the DNC in 2020 by forcing all the other candidates to drop out and endorsing Biden. When they were taken to court over the action, their defense was that it was their *right* to rig the primary. The courts agreed with them! Sure, it's *theoretically* possible to get 50.1% of the voting public to write in an alternate candidate, but getting 75+ million people to take any collective action not presented before them is a pipe dream, at best, delusional, at worst.
Ad eundum quo nemo ante iit
(Score: 0) by Anonymous Coward on Friday November 22, @07:24PM
Well, there you go. How is that the party's fault? They are merely exploiting our own weaknesses. Are we just going to let them? It seems the choice is still ours, not theirs.
(Score: 2, Funny) by DannyB on Wednesday November 20, @04:28PM
Yes. That is absolutely true.
So instead they file false takedowns under PLENTY of perjury.
Some people need assistants to hire some assistance.
Other people need assistance to hire some assistants.
(Score: 2) by gnuman on Wednesday November 20, @07:11PM (1 child)
You see, you are reading it wrong too. The statements are basically the same.
You just need to make a statement, in good faith, under penalty of perjury, that you believe that the material was removed due to misidentification or a mistake.
So, you can't make BS counter-claims, only ones that you *believe* are incorrect. Even if you infringe, but believe you do not (because you are not a lawer), then you cannot be found liable under penalty of perjury. Yes, it puts slightly more burden on the counter-claim (ie. no automated mass counter-filings). But it's just as bad to false file copyright claim when you do not have copyright ownership of something. For example, if you don't like some content and want it removed.
The entire perjury thing here is simply: "don't lie"
This section of the law seems to be related to the hosting party obligations when it comes to complaints about copyright infringement. They only need to collect contact info and both these claims. And then they don't have to worry and it's up to the parties to decide what to do next.
(Score: 2, Insightful) by day of the dalek on Wednesday November 20, @07:59PM
The problem is that, at a minimum, the first section I quoted should read:
This rewording would mean that knowingly filing DMCA claims that contain false information are subject to penalty of perjury. Right now, that only applies to the second part that the complaining party is authorized to act at the behest of the copyright holder.
That still isn't quite enough, though. People can still get around this by filing claims that are automatically prepared based on systems that are supposedly able to automatically detect infringement of copyrighted works. Those systems can still generate large numbers of false positives. Without adequate manual review, that can result in large numbers of false claims being sent, which means unnecessary work for people who aren't actually violating copyright. Again, this opens a loophole for abuse if the person maliciously making DMCA claims can argue that their system for detecting copyright violations just happened to malfunction.
It would be better to also require that for DMCA claims to be valid, they must include a statement, again under penalty of perjury, that a person has manually reviewed the alleged infringing work to confirm that it actually does contain copyrighted content, and the identity of the person doing the review. This would close the loophole allowing claims that have been automatically prepared and are based on false positives. If there isn't manual review, the claim is invalid. If a person lies about doing the manual review, then that's perjury.
Submitting false claims harms the person whose work is taken down because of the time required to respond to a DMCA claim and the time that their work is unavailable because of the false claim. At least the changes I've suggested would provide recourse against the most egregious abuses.
SUCK IT TREBEK [youtube.com]