Digital Millennium Copyright Act: Casebook (Cyber Law Series)


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Sullivan to the information age. Sullivan marked its 50th anniversary in Sullivan understood that free speech depends on a free press. Laws aimed at speech intermediaries implicated the speech of ordinary persons. This would be true even if it were simply private parties suing other private parties. The Court recognized that a private claim would cause the newspaper to avoid such controversial topics in the future.

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A liberal liability rule against the newspaper would, the Supreme Court understood, undermine the speech of those persons who had posted the advertisement. The Court recognized that advertising itself was a direct form of speech by persons other than the press, and that liberally allowing liability arising out of these advertisements would lead the newspaper to sharply curtail what was said in its advertisements:.

A contrary ruling would have essentially privatized censorship. Private liability regimes are one-directional: Liability arises only if the speech intermediary publishes the speech, not if it censors it. Thus, the slightest uncertainty resolves in favor of censorship. Private law can thus function as a one-way ratchet towards censorship. This incentivizes broad suppression of speech, and so, must be scrutinized with care. Even if the regulation itself appears content neutral, the effect of the liability regime will be to deter controversial speech, the speech at the edges of what might invoke liability.

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Sullivan held that even speech paid for by private parties and posted as an advertisement was constitutionally protected—that the commercial context of the speech did not take it outside the First Amendment. Furthermore, the case involved statements that were actual untruths which the New York Times itself admitted.

Even still, the Times was excused. To hold otherwise would substantially chill speech. The Internet would take us much farther towards the promise of free speech than even a New York Times freed of stiff defamation judgments. But experience taught us that social networks were crucial to enabling information to reach a broader audience.


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Being held liable for the speech of their users would lead these services to censor material liberally, or to shut down if such censorship proved practically impossible. After all, the small additional revenues attributable to controversial speech might well not justify the expected costs of a lawsuit or a judgment. The American commitment to free speech also rebuffs efforts to enact broad privacy protections.

West and Sorrell demonstrated that the First Amendment serves as a significant check on the kinds of privacy protections that might be imposed on Internet intermediaries. The case again relied on the logic of Sullivan. Internet intermediaries are often the most vulnerable and effective points of control for any government keen on controlling speech. We thus turn to some of the most important contemporary cyberlaw conflicts, demonstrating that the contest over the contours of free speech underlies them all. But the threats raised by SOPA remain. They have migrated away from the public halls of Congress to the more secretive world of international diplomacy.

SOPA sought to make U. Proponents cast the bill as necessary to combat foreign websites that facilitate infringement of U. SOPA would have permitted copyright holders and the U. Department of Justice to seek court orders against foreign websites accused of facilitating copyright infringement. The speech implications of the bill were astonishing. Any Internet website that hosted content supplied by users could be said to facilitate copyright infringement because users routinely post infringing material as a form of online sharing. The social web was at risk.

Such a power would impinge on the speech of both the intermediaries—denied the right to advertise even without adversary proceedings establishing a primary violation—and the target website—denied the lifeblood of a business, funding and advertising.

More importantly, the speech of multitudes of users was at stake because the platforms for their speech might disappear in the face of such risks. Moreover, the rights of intellectual property holders would trump the speech of both Internet intermediaries, target websites, and individual users, even without judicial determinations of infringement.

Laurence Tribe denounced the statute for creating prior restraints. If SOPA had been implemented, parts of the Internet would have effectively gone dark—denied domain names or advertising revenues—and been banned from search engines. In this way, SOPA would jeopardize all sites containing user-generated content, including even such foundational services as Google or Facebook.

This is not a fanciful hypothetical.

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Abe may wake up one morning and not be able to access any of his photos of his children. Neither he, nor his students, would be able to access any of his lectures. At least temporarily. A close reading of the leaked draft of this chapter reveals SOPA-like ambitions. How might we provide a legal incentive for service providers to deter infringement? Fair use would be at the mercy of speech intermediaries that had a legal incentive only to take material down, not to keep it up—a legal incentive, that is, to censor material, not to publish it.

The U. Thus, the threats from SOPA are alive, global, and unfortunately, avoiding public engagement.

Unlike the SOPA discussion, where the collective power of individual speech was demonstrated, the negotiations towards a TPP are reserved for speech by a select few. As for the transatlantic agreement, we will likely have to wait for the next revelation by Wikileaks to learn whether TTIP poses the same dangers to speech. Criminal Domains: Megaupload and Rojadirecta. The day after the massive protest that doomed SOPA, authorities around the world descended on the cloud service Megaupload. Figure 2. A year earlier, the U. The authorities accused the sites of facilitating copyright infringement by collecting links to often unauthorized videos of sporting events around the world.

The seizure occurred without prior notice to the website owners, and without any adversarial hearing.


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The seizures harmed speech, and in some cases, permanently destroyed it. Rojadirecta, for example, not only hosted links to video streams, but also provided forums for sports discussions. Certainly, a significant percentage of the material was likely to be copyright infringing, but the seizure indiscriminately barred access to both infringing and non-infringing content. Library of Congress print collection. The Rojadirecta case ended with a whimper. Eighteen months after the seizure, the U. A domain name seizure operates both as a punishment for prior speech and a prior restraint on future speech.

Domain name seizures are particularly troubling when they interfere with the access of thousands, or even millions of users, to forums for sharing information. Domain name seizures in this context almost invariably impinge on protected speech, with the real consequence of certainly destroying them. A blunderbuss approach to a problem, they are not narrowly tailored to target the actual offense.

The United States cannot translate its de facto control of the most significant parts of the domain name space into a de facto system of licensing speech. Anyone placing material on a. Copyright Act of , aiding-and-abetting liability for copyright infringement was actually removed in the Copyright Act of The fundamental concern is that broad criminal aiding-and-abetting liability for copyright infringement will drive speech intermediaries to censor broadly, lest they be held criminally responsible for the speech of their users.

The threat of aiding-and-abetting criminal copyright liability might render the DMCA title II safe harbors meaningless because companies could still be indicted as aiders and abettors. The United Nations of Censors. When governments have censored speech, they have often been criticized both by other governments and civil society.

National security, of course, is often invoked by governments seeking to censor information they find undesirable. This provision would have authorized both a kill switch, allowing governments to shut down the Internet, and more targeted censorship, barring particular information that a government declares forbidden. By seeking such constraints at the telecommunications level the realm of the ITU , Russia and other states sought to build censorship into the infrastructure of the Internet—and receive international blessing to do so.

They also sought to build in surveillance. Concerns over the free speech implications of these provisions led the ITU ultimately to reject these changes to the International Telecommunications Regulations, at least for now. Governments may not need the cover of the United Nations to try to impose greater control over information on the Internet.

Countries around the world are seeking to keep data about their citizens from leaving their borders and increasing their ability to monitor their citizens in the process. The elephantine memory of computer systems combined with the rise of digitized expression and interaction has led many to propose a legal tool to compel the deletion of personal information from databases.

The employee would keep the following fact in mind: Liability for noncompliance with the right to be forgotten runs only if one refuses to delete, not if one deletes at the drop of a hat. Removing art and free expression carelessly does not carry any sanction. The right to be forgotten transforms Facebook, Google, Reddit, and Twitter into censors, charged with evaluating whether a particular expression has artistic or journalistic merit or otherwise constitutes free expression.

It renders them art curators and masters of literary value. In this case, a data subject sued Google for displaying incriminating information about him, which was made available online by a third party and then indexed by Google.

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To comply with the judgment, Google offered EU citizens the ability to file data removal requests. While individuals can file requests for removal, Internet users and third party speakers have no recourse to have search engines reinstate the links to writings and publications. The European Court of Justice approach does not give due attention to the importance of search services to free speech.

Imagine the burden on speech if a library were to tell you that information might be found in its vast, unorganized stacks, but that it could not offer an index to assist the search for information. A right to be forgotten law, limited to children, was proposed in California, but ultimately, the version of the bill that was passed, the Privacy Rights for California Minors in the Digital World Act, only narrowly allowed children to delete information they had posted from their own streams, not from those of others.

Web 3. Free speech gave life to Web 2. While Web 2. The ontologies help define the ways that information can be related or its possible range of computer-accessible meanings. These ontologies will not only enable, but they will also condition speech.

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They are intended to help computers, and the people behind them, to understand the world through its digitized ephemera.

Digital Millennium Copyright Act: Casebook (Cyber Law Series) Digital Millennium Copyright Act: Casebook (Cyber Law Series)
Digital Millennium Copyright Act: Casebook (Cyber Law Series) Digital Millennium Copyright Act: Casebook (Cyber Law Series)
Digital Millennium Copyright Act: Casebook (Cyber Law Series) Digital Millennium Copyright Act: Casebook (Cyber Law Series)
Digital Millennium Copyright Act: Casebook (Cyber Law Series) Digital Millennium Copyright Act: Casebook (Cyber Law Series)
Digital Millennium Copyright Act: Casebook (Cyber Law Series) Digital Millennium Copyright Act: Casebook (Cyber Law Series)
Digital Millennium Copyright Act: Casebook (Cyber Law Series) Digital Millennium Copyright Act: Casebook (Cyber Law Series)
Digital Millennium Copyright Act: Casebook (Cyber Law Series) Digital Millennium Copyright Act: Casebook (Cyber Law Series)

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