4 ms·

Plenty of companies reject a large portion of their DMCA complaints that they believe don't represent infringement. Look through some transparency reports. In

by 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.
    - ikeboy 6y ago
      Turner is about a content-neutral regulation. The proposal in OP doesn't appear to be content-neutral. It's also weaker than Turner in that no compelling government interest is identified. Being charitable doesn't mean I need to assume that every censorship proposal written by a non-lawyer somehow complies with the 1st Amendment if I add enough epicycles. The author is critiquing Section 230, not the DMCA. They're making some extremely strong claims, and in particular saying certain things are obvious or extremely likely. It doesn't cite any cases and each of its examples appear wrong. The core argument is dead wrong. 230(c)(2) is barely even cited in court, most cases cite (c)(1) because the good faith standard is difficult to establish. I'll note that you're mainly nitpicking one of my three critiques and haven't addressed the other two.
      - emn13 6y ago
        The proposal to delay deletion for 24 hours is content neutral, is it not? Additionally, since the "speaker" has already published whatever is being deleted, and merely has a delay, the free speech issues appear pretty small - or perhaps nonexistant. It's not clear to me that this would be struck down, and if it is clear to compentent legislators, they could rephrase the requirement instead as a liability limitation that's close to a requirement in economic practice. > Being charitable doesn't mean I need to assume that every censorship proposal written by a non-lawyer somehow complies with the 1st Amendment if I add enough epicycles. Of course not - I think your view on the matter is simply focused more on legal details, when the author seems to be focused on the outcomes of said laws. So, e.g. when you correctly point out he's not citing anything... I'm not sure it's relevant, because his interpretation of 230 as censorship doesn't rely on it violating the first amendment, but rather on indirect effects that allow censorship by platforms. I'm not sure this argument is very strong - but that's the interesting argument anyhow. > I'll note that you're mainly nitpicking one of my three critiques and haven't addressed the other two. That's because that's the one I object to, not the other two. And I'm not objecting because you're wrong, but because (I believe) it's missing the point. I don't think the article makes a strong case, but if you read the article, he's trying to make some case that s230 curtails free speech (irrespective of the the constitution - free speech in practical reality, not theory) - his proposed remedies are not central to the thesis. Yet by focusing on those, we've ignored the thesis, and that's my issue with criticisms like this. I mean: it's fair to say I'm nitpicking one specific issue - but so are you with respect to the original article, and in a way that derails the discussion. Sorry for derailing... your points; in retrospect it wasn't worth it (the original article isn't making very clear points). I guess I get triggered by people going off on legal tangents (I feel like that happens a lot). Then again, hard to criticize an argument you've made when my very criticism is open to the same objections. Anyhow - thanks for clarifying the issues with his interpretation of 230 - there aren't a lot of places left you can still discuss stuff like this without devolving into deeply held partisan beliefs; I appreciate your level-headed response.

by ikeboy 6y ago

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.
  - ikeboy 6y ago
    Turner is about a content-neutral regulation. The proposal in OP doesn't appear to be content-neutral. It's also weaker than Turner in that no compelling government interest is identified. Being charitable doesn't mean I need to assume that every censorship proposal written by a non-lawyer somehow complies with the 1st Amendment if I add enough epicycles. The author is critiquing Section 230, not the DMCA. They're making some extremely strong claims, and in particular saying certain things are obvious or extremely likely. It doesn't cite any cases and each of its examples appear wrong. The core argument is dead wrong. 230(c)(2) is barely even cited in court, most cases cite (c)(1) because the good faith standard is difficult to establish. I'll note that you're mainly nitpicking one of my three critiques and haven't addressed the other two.
    - emn13 6y ago
      The proposal to delay deletion for 24 hours is content neutral, is it not? Additionally, since the "speaker" has already published whatever is being deleted, and merely has a delay, the free speech issues appear pretty small - or perhaps nonexistant. It's not clear to me that this would be struck down, and if it is clear to compentent legislators, they could rephrase the requirement instead as a liability limitation that's close to a requirement in economic practice. > Being charitable doesn't mean I need to assume that every censorship proposal written by a non-lawyer somehow complies with the 1st Amendment if I add enough epicycles. Of course not - I think your view on the matter is simply focused more on legal details, when the author seems to be focused on the outcomes of said laws. So, e.g. when you correctly point out he's not citing anything... I'm not sure it's relevant, because his interpretation of 230 as censorship doesn't rely on it violating the first amendment, but rather on indirect effects that allow censorship by platforms. I'm not sure this argument is very strong - but that's the interesting argument anyhow. > I'll note that you're mainly nitpicking one of my three critiques and haven't addressed the other two. That's because that's the one I object to, not the other two. And I'm not objecting because you're wrong, but because (I believe) it's missing the point. I don't think the article makes a strong case, but if you read the article, he's trying to make some case that s230 curtails free speech (irrespective of the the constitution - free speech in practical reality, not theory) - his proposed remedies are not central to the thesis. Yet by focusing on those, we've ignored the thesis, and that's my issue with criticisms like this. I mean: it's fair to say I'm nitpicking one specific issue - but so are you with respect to the original article, and in a way that derails the discussion. Sorry for derailing... your points; in retrospect it wasn't worth it (the original article isn't making very clear points). I guess I get triggered by people going off on legal tangents (I feel like that happens a lot). Then again, hard to criticize an argument you've made when my very criticism is open to the same objections. Anyhow - thanks for clarifying the issues with his interpretation of 230 - there aren't a lot of places left you can still discuss stuff like this without devolving into deeply held partisan beliefs; I appreciate your level-headed response.