4 ms·
IANAL, but I think you're likely wrong on the first amendment issue. Contract law regularly supersedes first amendment concerns, e.g. even though courts are a p
by emn13 6y ago
IANAL, but I think you're likely wrong on the first amendment issue. Contract law regularly supersedes first amendment concerns, e.g. even though courts are a part of the government, they are allowed to enforce NDAs. Even outright restrictions of speech are often allowed; there are broad exemptions. e.g. it's OK to regulate noise levels, even if you're shouting protected speech - as long as the regulations are content neutral (and likely a host of other tests courts apply - again, IANAL).
A state law regulating such contracts - which is in essence what this might be, as they concern EULAs - especially to the really limited extent that we're talking merely about not deleting content for a short period of time, in a content neutral fashion - that doesn't shout first amendment issue to me anyhow. Even if it required (or strongly promoted) keeping content up, I'm not sure there would be an issue (though there might be).
Here, e.g. a quick google finds a link (hopefully a reliable source, but I'm not vouching for it...) about the kind of things that can survive a first amendment challenge: https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions https://www.mtsu.edu/first-amendment/article/1023/time-place... - sounds to me like requirements to keep content online temporarily to allow for dispute resolution would be no less impermissible that the converse which is already in the DMCA (effectively albeit indirectly requiring content to be taken down upon the mere accusation of copyright infringement). Also, the part about the takedown requests should give some idea as to technicalities that in effect regulate speech while technically not doing so, and those could be applied here too - DMCA after all does not require compliance with takedown requests, it merely makes it economically non-viable to fail to comply, even if the request is in bad faith.
While the first amendment may be spiritually related to laws like this, I'm not convinced it's a serious impediment either way, even if the outcome is a pretty serious chilling effect. The loopholes are too large, and the first amendment simply too narrowly focused on government impositions to reliably protect from indirect restrictions. To be transparent: I'm not saying it couldn't be a protection, just that I don't see it as obvious, and since IANAL, I'm not comfortable assuming it's a relevant factor here, although it certainly could be.
- ikeboy 6y agoI explicitly pointed out that laws regulating contracts would be fine. That was the second example. The first example made no mention of contracts. Re DMCA, as you note, there's no requirement to take down content after receiving a notice. You can't be held liable for ignoring a notice. You just lose the safe harbor granted by DMCA for those that choose to comply with such notices. OP had three distinct laws that I analyzed separately. I feel like you're conflating it into one mega-law and saying that the first amendment doesn't cover everything. Also, the "reasonable person" standard doesn't sound content neutral to me.
- emn13 6y agoRight, but in effect the DMCA does require takedowns. In theory, it doesn't, but in practice the risks imposed are large enough that platforms can't viably choose to take them. And exactly that could work in reverse too; a non-requirement strong incentive to leave content up, by tilting the liability scales the other way, or even by imposing additional civil liability by the platform to the poster (not the government!). The point being not that that is likely to pass congress nor something to morally aim for, but rather that the first amendment won't prevent it either: i.e. if congress wants to intervene, it has the power to. I'm not saying the original article has it's details legally water-tight, but rather that it seems implausible that reasonable legislators couldn't come up with a sufficiently first-amendment proof construction. And the point of that is that we shouldn't be distracted by first amendment issues. They're not going to matter for regulating platforms, as the DMCA kind of proves, if that's what congress wants. So what do we want? What should we as a society want? That's the hard question, and any (reasonable) answer to that is likely not going to impacted by the first amendment.
- ikeboy 6y agoPlenty of companies reject a large portion of their DMCA complaints that they believe don't represent infringement. Look through some transparency reports. In the absence of the safe harbor, companies would be taking down far more content, not less. Same if section 230 was narrowed. Can you propose an actual law that you believe would be constitutional and would have the effect you're claiming?
- emn13 6y agoYou're misreading what I'm saying; I'm not proposing an alternative law (and have no interest in doing so), merely stating that the criticism of the original article saying that DMCA reform would run into first-amendment issues is invalid. Competent legislators have enough freedom to go in fairly different directions, if they so choose. The point being: if you want to propose an alternative to the DMCA, worrying about the first amendment at this stage is premature.