Why DMCA’s Notice & Takedown Already Has 1st Amendment Problems, Plus RIAA/MPAA Want To Make It Worse

The notice-and-takedown portion of the DMCA has ended it's second comment period, and has shown itself to be maneuvering around a high standard set by the Supreme Court regarding expressive content in a way that may be in violation of the First Amendment, meanwhile the RIAA and other are seeking to make the system even worse, says Mike Masnick of Techdirt

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Guest post by Mike Masnick of Techdirt

The Copyright Office's study concerning Section 512 of the DMCA (the notice-and-takedown/safe harbors part of the law) had its second comment period end this week — which is why you're seeing stories about how the RIAA is suddenly talking about piracy filters and notice-and-staydown. Via our think tank arm, the Copia Institute we filed our own comments, pointing out the already problematic First Amendment issues with the way the current notice-and-takedown system works. Remember, there's a very high standard set by the Supreme Court before you can take down expressive content. But the notice-and-takedown system ignores all of that:

Because this takedown system functions as a system of extra-judicial injunctions it is critical that the speech they target have at least as much protection as speech targeted by any request for injunctive relief. Ordinarily someone seeking to enjoin speech would need to properly plead and then prove that the targeted speech was indeed actionable. Under present practice, however, senders of takedown notices have not needed to overcome these sorts of hurdles prior to effecting the removal of targeted content via their takedown demands.

A significant reason takedown notice senders have been able to evade these constitutional requirements is because there is no effective consequence for sending non-meritorious takedown demands.

Unfortunately, the likes of the RIAA and others are pushing to make the system even worse, and we point out to the Copyright Office how that would exacerbate the First Amendment issues from the DMCA:

Under no circumstance should the Copyright Office advocate for exacerbating any of the consequences to speech that the DMCA already inflicts. For instance, any proposal to increase the power of a takedown notice, such as by turning it into a permanent injunction through “takedown-and-staydown” proposed by Question #12, would only increase the severity of the Constitutional injury the DMCA inflicts, as would requiring any additional delay in restoring content after recei