6 ms·

I'm not sure how DMCA enforcement isn't a clear violation of the 1st amendment. If you are connected you can use the government to stop speech? Isn't this the

I'm not sure how DMCA enforcement isn't a clear violation of the 1st amendment. If you are connected you can use the government to stop speech? Isn't this the kind of thing that US feels very strongly is not okay?

cratermoon 2y ago
When the government does it, it's bad. When the Free Market™ does it, that's innovation.
omgwtfbyobbq 2y ago
The 1st amendment applies to the government, so it wouldn't apply unless the DMCA request is to a government website.
- foota 2y ago
  The DMCA is a law that restricts the ability of people to make speech. The government is the one doing the restricting, even if the place the speech is being done isn't controlled by the government. The argument you're making is applicable when a website decides not to publish your speech (they're not the government, so the 1st amendment is irrelevant), but the DMCA is different.
  - omgwtfbyobbq 2y ago
    The 1st amendment only applies to freedom of speech that the government can control/affect directly. Using the DMCA like this is censorship by copywrite, and it does go against freedom of speech in society at large, but it's not a 1st amendment issue. https://en.m.wikipedia.org/wiki/Censorship_by_copyright https://en.m.wikipedia.org/wiki/Censorship_by_copyright
    - JoeAltmaier 2y ago
      Lots of arguing around the point, perhaps. Freedom of speech is an American ideal. It's in the Bill of Rights because it was so important. Not as a tool to restrict this right to just government infringements. It is supposed to be a universal right. I often wonder at those arguing that it's 'ok' somehow in some circumstances because, not protected except for the govt! Somehow they've lost sight of the ideal.
      - omgwtfbyobbq 2y ago
        My dude, it's restricted to just government infringements (Congress) in the Bill of Rights. > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. https://en.m.wikipedia.org/wiki/United_States_Bill_of_Rights https://en.m.wikipedia.org/wiki/United_States_Bill_of_Rights If it was supposed to be a universal right for everyone/everything, it would be something like "no one shall make a law..."
        JoeAltmaier 2y ago
        Kid, that's what I said. American ideals are not restricted to the Bill of Rights. My entire point.
        omgwtfbyobbq 2y ago
        That's not what you said. > It's in the Bill of Rights because it was so important. Not as a tool to restrict this right to just government infringements. In the Bill of Rights, it's restricted to just government infringements.
    - foota 2y ago
      Interesting, thanks for clarifying. I guess the fact that people can counter claim means the ability of someone to truly limit someone else's speech is probably limited, and it's on websites to support that (which I don't think all do, but it's up to them?) Almost makes me wish it was mandatory for companies to support counter claims and to treat a customer no differently if they've filed a counter claim. (E.g., GitHub can't close your repos as long as you file a counter claim, unless they would have regardless of the DMCA claim.)
- willis936 2y ago
  It's the other way around. The 1st amendment protects public speech from the government, not the government from the public. Since DMCA is a law made and enforced by the government it is used illegally against the public in violation of the 1st amendment.
  - omgwtfbyobbq 2y ago
    Yes and no. The governments powers wrt speech are limited, but certain things like threats, yelling fire in a crowded theater, and other crimes/regulations do not have 1st amendment protections. The DMCA is an exception because it's a law, just like a threat or any other illegal material/etc would be and removal of that thing can be mandated by law without it being a 1st amendment issue.
- JumpCrisscross 2y ago
  > 1st amendment applies to the government, so it wouldn't apply Eh, the DMCA is still a law providing for civil and criminal sanctions based on speech. There are probably fundamental First Amendment problems with copyright. The answer to why the DMCA—and copyright as a whole—can exist is the Copyright Clause [1]. [1] https://en.m.wikipedia.org/wiki/Copyright_Clause https://en.m.wikipedia.org/wiki/Copyright_Clause
thayne 2y ago
Also the seventh amendment (the content is removed without any trial by jury, and that can sometimes have considerable monetary harm to the content creator) and the fifth amendment (there is a process but it is very questionable, with basically no requirement of evidence of infringement, and no presumption of innocence).
- JumpCrisscross 2y ago
  > fifth amendment (there is a process but it is very questionable, with basically no requirement of evidence of infringement, and no presumption of innocence) There is also no “capital, or otherwise infamous crime,” “criminal case,” or taking of private property “for public use, without just compensation” [1]. [1] https://en.m.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Text https://en.m.wikipedia.org/wiki/Fifth_Amendment_to_the_Unite...
  - thayne 2y ago
    I will admit that the fifth amendment case isn't as clear cut as the others, by the letter of the law, but: > nor be deprived of life, liberty, or property, without due process of law I would argue that at least in some cases dmca takedown notices can deprive people of property, either by preventing them from making an income from their content, or causing them to lose access to a service for which they paid money, or have access to something of value. I also think it deprives the poster of some degree of liberty. Even if it isn't against the letter of the law it is against the spirit.
    - JumpCrisscross 2y ago
      > Even if it isn't against the letter of the law it is against the spirit By that notion YouTube has the right to call a jury if I decide to cancel. Where we agree is in the sanctions. For the safe harbor to be removed there should be more process, and it should be explicit.
- hahn-kev 2y ago
  Except you don't have a legal right to post content on a private platform, that private company can do whatever they want, they aren't required to give you freedom of speech.
kube-system 2y ago
Section 8 of the Constitution explicitly allows Congress to protect copyright. > To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; The 1st amendment didn't repeal this.
- atoav 2y ago
  Yeah, but current practise isn't in any way promoting the Progress of Science and useful Arts.
  - kube-system 2y ago
    SCOTUS has ruled multiple times that Congress has the authority to determine policy that they believe best fulfills this part of the clause.
    - atoav 2y ago
      Meaning the words of your constitution are worth nothing, gotcha.
      - int_19h 2y ago
        This actually kinda makes sense, and the argument goes like this. It is rather obviously subjective what constitutes "promoting science and useful arts" (including the very definition of "useful" etc). So when it comes to enforcing this clause, you need some body to decide on what these translate to in practice. And this can be either the courts or the legislature. Between the two, the legislature is the one that citizens have more control over, so giving it the ability to decide is intended to make these kinds of abuses easier to rectify (just vote for the right guys!) as opposed to dealing with obstinate courts.
      - kube-system 2y ago
        Let me assure you that you haven't discovered something hundreds of years of legal scholars didn't yet realize. You are simply mistaken as to how that clause is interpreted within the context of the rest of the document ... part of which outlines the division of roles and responsibilities for judging and executing that clause. All of that aside, "science and useful arts" never referred to the little guys. This always referred to the interests of commercializing those endeavors.

cratermoon 2y ago

When the government does it, it's bad. When the Free Market™ does it, that's innovation.

omgwtfbyobbq 2y ago

The 1st amendment applies to the government, so it wouldn't apply unless the DMCA request is to a government website.

foota 2y ago
The DMCA is a law that restricts the ability of people to make speech. The government is the one doing the restricting, even if the place the speech is being done isn't controlled by the government. The argument you're making is applicable when a website decides not to publish your speech (they're not the government, so the 1st amendment is irrelevant), but the DMCA is different.
- omgwtfbyobbq 2y ago
  The 1st amendment only applies to freedom of speech that the government can control/affect directly. Using the DMCA like this is censorship by copywrite, and it does go against freedom of speech in society at large, but it's not a 1st amendment issue. https://en.m.wikipedia.org/wiki/Censorship_by_copyright https://en.m.wikipedia.org/wiki/Censorship_by_copyright
  - JoeAltmaier 2y ago
    Lots of arguing around the point, perhaps. Freedom of speech is an American ideal. It's in the Bill of Rights because it was so important. Not as a tool to restrict this right to just government infringements. It is supposed to be a universal right. I often wonder at those arguing that it's 'ok' somehow in some circumstances because, not protected except for the govt! Somehow they've lost sight of the ideal.
    - omgwtfbyobbq 2y ago
      My dude, it's restricted to just government infringements (Congress) in the Bill of Rights. > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. https://en.m.wikipedia.org/wiki/United_States_Bill_of_Rights https://en.m.wikipedia.org/wiki/United_States_Bill_of_Rights If it was supposed to be a universal right for everyone/everything, it would be something like "no one shall make a law..."
      - JoeAltmaier 2y ago
        Kid, that's what I said. American ideals are not restricted to the Bill of Rights. My entire point.
        omgwtfbyobbq 2y ago
        That's not what you said. > It's in the Bill of Rights because it was so important. Not as a tool to restrict this right to just government infringements. In the Bill of Rights, it's restricted to just government infringements.
  - foota 2y ago
    Interesting, thanks for clarifying. I guess the fact that people can counter claim means the ability of someone to truly limit someone else's speech is probably limited, and it's on websites to support that (which I don't think all do, but it's up to them?) Almost makes me wish it was mandatory for companies to support counter claims and to treat a customer no differently if they've filed a counter claim. (E.g., GitHub can't close your repos as long as you file a counter claim, unless they would have regardless of the DMCA claim.)
willis936 2y ago
It's the other way around. The 1st amendment protects public speech from the government, not the government from the public. Since DMCA is a law made and enforced by the government it is used illegally against the public in violation of the 1st amendment.
- omgwtfbyobbq 2y ago
  Yes and no. The governments powers wrt speech are limited, but certain things like threats, yelling fire in a crowded theater, and other crimes/regulations do not have 1st amendment protections. The DMCA is an exception because it's a law, just like a threat or any other illegal material/etc would be and removal of that thing can be mandated by law without it being a 1st amendment issue.
JumpCrisscross 2y ago
> 1st amendment applies to the government, so it wouldn't apply Eh, the DMCA is still a law providing for civil and criminal sanctions based on speech. There are probably fundamental First Amendment problems with copyright. The answer to why the DMCA—and copyright as a whole—can exist is the Copyright Clause [1]. [1] https://en.m.wikipedia.org/wiki/Copyright_Clause https://en.m.wikipedia.org/wiki/Copyright_Clause

thayne 2y ago

Also the seventh amendment (the content is removed without any trial by jury, and that can sometimes have considerable monetary harm to the content creator) and the fifth amendment (there is a process but it is very questionable, with basically no requirement of evidence of infringement, and no presumption of innocence).

JumpCrisscross 2y ago
> fifth amendment (there is a process but it is very questionable, with basically no requirement of evidence of infringement, and no presumption of innocence) There is also no “capital, or otherwise infamous crime,” “criminal case,” or taking of private property “for public use, without just compensation” [1]. [1] https://en.m.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Text https://en.m.wikipedia.org/wiki/Fifth_Amendment_to_the_Unite...
- thayne 2y ago
  I will admit that the fifth amendment case isn't as clear cut as the others, by the letter of the law, but: > nor be deprived of life, liberty, or property, without due process of law I would argue that at least in some cases dmca takedown notices can deprive people of property, either by preventing them from making an income from their content, or causing them to lose access to a service for which they paid money, or have access to something of value. I also think it deprives the poster of some degree of liberty. Even if it isn't against the letter of the law it is against the spirit.
  - JumpCrisscross 2y ago
    > Even if it isn't against the letter of the law it is against the spirit By that notion YouTube has the right to call a jury if I decide to cancel. Where we agree is in the sanctions. For the safe harbor to be removed there should be more process, and it should be explicit.
hahn-kev 2y ago
Except you don't have a legal right to post content on a private platform, that private company can do whatever they want, they aren't required to give you freedom of speech.

kube-system 2y ago

Section 8 of the Constitution explicitly allows Congress to protect copyright. > To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; The 1st amendment didn't repeal this.

atoav 2y ago
Yeah, but current practise isn't in any way promoting the Progress of Science and useful Arts.
- kube-system 2y ago
  SCOTUS has ruled multiple times that Congress has the authority to determine policy that they believe best fulfills this part of the clause.
  - atoav 2y ago
    Meaning the words of your constitution are worth nothing, gotcha.
    - int_19h 2y ago
      This actually kinda makes sense, and the argument goes like this. It is rather obviously subjective what constitutes "promoting science and useful arts" (including the very definition of "useful" etc). So when it comes to enforcing this clause, you need some body to decide on what these translate to in practice. And this can be either the courts or the legislature. Between the two, the legislature is the one that citizens have more control over, so giving it the ability to decide is intended to make these kinds of abuses easier to rectify (just vote for the right guys!) as opposed to dealing with obstinate courts.
    - kube-system 2y ago
      Let me assure you that you haven't discovered something hundreds of years of legal scholars didn't yet realize. You are simply mistaken as to how that clause is interpreted within the context of the rest of the document ... part of which outlines the division of roles and responsibilities for judging and executing that clause. All of that aside, "science and useful arts" never referred to the little guys. This always referred to the interests of commercializing those endeavors.