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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: 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]