62 Pages Posted: 30 Mar 2010 Last revised: 13 May 2014

Date Written: March 1, 2010

Abstract

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law's shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas. Yet under the DMCA's pressure, the poster's private incentive to counter-notify and the host's incentives to support challenged speech are often insufficient to support an optimal communication environment for the public. Instead, this set of incentives produces a blander, but not significantly less copyright infringing, information space.

Copyright claimants assert that the expedited process of the DMCA is critical to suppress infringement in the highly networked digital world. While many instances of infringement are properly targeted for takedown under the DMCA, I argue that the accuracy of some takedowns does not excuse a careful examination of the rate and costs of error. I therefore recommend changes to the law to reduce the error, balancing speech protection and copyright.

Part I surveys the legal, economic, and architectural sources of the DMCA's chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright's place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.