4 ms·

I 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

by ikeboy 6y ago

I 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 ago
Right, 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 ago
  Plenty 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 ago
    You'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.
    - ikeboy 6y ago
      That wasn't my criticism. I critiqued a specific proposed law, which would indeed run afoul of the first amendment.
      - emn13 6y ago
        The original article did not propose any specifically formualated law, and additionally it's clear from the article that the author is concerned with the effects of the law, not the exact formulation. Criticizing the formulation isn't constructive, since he obviously doesn't care. And as I tried (and clearly failed) to convince you of, the issues you suggest exist if you were to read a blog-post as a literal law (which you shouldn't) are obviously not intrinsic to his proposal. In essence your criticism boils down to: copy-pasting this blog post as law and thus disregarding its intent would result in a law that violates the first amendment. But it's (A) not clear the form of very limited compelled speech you point to would be struck down (again there clearly have been exceptions that have not been struck down - a quick google finds stuff like https://en.wikipedia.org/wiki/Turner_Broadcasting_System,_Inc._v._FCC https://en.wikipedia.org/wiki/Turner_Broadcasting_System,_In..., but many other cases too - and you haven't explained why you believe this is any different), and more crucially (B) it's mostly irrelevant to the point of the article, which is about how the author views parts of the DMCA as ways to censor speech, and how he believes that's problematic. Applying https://en.wikipedia.org/wiki/Principle_of_charity https://en.wikipedia.org/wiki/Principle_of_charity - we should be trying to read the post in its "best, strongest possible interpretation" - i.e. not split hairs on a technicality that doesn't really affect the core argument.

by ikeboy 6y ago

emn13 6y ago

Right, 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 ago
Plenty 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 ago
  You'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.
  - ikeboy 6y ago
    That wasn't my criticism. I critiqued a specific proposed law, which would indeed run afoul of the first amendment.
    - emn13 6y ago
      The original article did not propose any specifically formualated law, and additionally it's clear from the article that the author is concerned with the effects of the law, not the exact formulation. Criticizing the formulation isn't constructive, since he obviously doesn't care. And as I tried (and clearly failed) to convince you of, the issues you suggest exist if you were to read a blog-post as a literal law (which you shouldn't) are obviously not intrinsic to his proposal. In essence your criticism boils down to: copy-pasting this blog post as law and thus disregarding its intent would result in a law that violates the first amendment. But it's (A) not clear the form of very limited compelled speech you point to would be struck down (again there clearly have been exceptions that have not been struck down - a quick google finds stuff like https://en.wikipedia.org/wiki/Turner_Broadcasting_System,_Inc._v._FCC https://en.wikipedia.org/wiki/Turner_Broadcasting_System,_In..., but many other cases too - and you haven't explained why you believe this is any different), and more crucially (B) it's mostly irrelevant to the point of the article, which is about how the author views parts of the DMCA as ways to censor speech, and how he believes that's problematic. Applying https://en.wikipedia.org/wiki/Principle_of_charity https://en.wikipedia.org/wiki/Principle_of_charity - we should be trying to read the post in its "best, strongest possible interpretation" - i.e. not split hairs on a technicality that doesn't really affect the core argument.