3 ms·

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

by 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.
- thayne 2y ago
  DMCA is a legal mechanism that the platform has to comply with. This isn't a case of a private company removing something that violates the ToS, it is a law that can be easily be abused by a third party to cause content to be taken down. It's like if there was a law that said if you send a notification to a storage or logistics company that you think one of their customers has counterfeit goods in their storage, the storage company is legally obligated to destroy the suspect property, regardless of whether there is any evidence that it is actually counterfeit. Or even just, that company is no longer allowed to provide service to that customer, and is allowed to seize and keep any property they currently have control over. I could also talk about how many of these platforms have too much power, and the lack of competition makes it problematic if they have control to censor as they please, but that is really a different topic.
- foobarchu 2y ago
  IANAL but I think this justification sits on very shakey ground when the private company is doing it in the name of the law (DMCA). For the same reason, I of course think the government demanding encryption backdoors by private companies violates the fifth amendment.

by thayne 2y ago

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.

thayne 2y ago
DMCA is a legal mechanism that the platform has to comply with. This isn't a case of a private company removing something that violates the ToS, it is a law that can be easily be abused by a third party to cause content to be taken down. It's like if there was a law that said if you send a notification to a storage or logistics company that you think one of their customers has counterfeit goods in their storage, the storage company is legally obligated to destroy the suspect property, regardless of whether there is any evidence that it is actually counterfeit. Or even just, that company is no longer allowed to provide service to that customer, and is allowed to seize and keep any property they currently have control over. I could also talk about how many of these platforms have too much power, and the lack of competition makes it problematic if they have control to censor as they please, but that is really a different topic.
foobarchu 2y ago
IANAL but I think this justification sits on very shakey ground when the private company is doing it in the name of the law (DMCA). For the same reason, I of course think the government demanding encryption backdoors by private companies violates the fifth amendment.