No, You Can't Use the DMCA to Fight IS, You Lunatic

By Katharine Trendacosta on at

Politicians and Anonymous activists are freaking out about fighting Islamic State on social media. Into this minefield stepped US homeland security analyst Paul Rosenzweig, who proposed a solution so bad it’s mind-boggling. He wants to use copyright law to stop terrorism.

Rosenweig, founder of the homeland security-focused Red Branch Consulting PLLC, posted “ISIS and the DMCA — A Thought Experiment” to Lawfare. “Thought experiment” is a good description, provided that’s code for “paranoid fever dream.” He closes his opening paragraph thusly:

I want to ask, in this post, a related question, more as a thought experiment than as a serious proposal: What, if anything, can be done to compel providers to take down accounts when they are unwilling to do so voluntarily? The answer, to my mind, lies in an analogy to the Digital Millennium Copyright Act (DMCA). Herewith some, admitedly [sic] creative, thoughts on the topic

“Admitedly creative” is dead-on. “Legally unsupportable,” “baroque verging on rococo,” and “suspiciously close to fascism” are other suitable descriptors.

I’m going to mostly skip over Rosenweig’s description of the DMCA, except to point out that he’s got a key thing wrong:

It declared that service providers were not liable for hosting violating material, but in turn, it imposed upon those providers an obligation to expeditiously respond to copyright claims made by the copyright holder, and take down (i.e. remove from their system) material alleged to be in violation of the rights of the original copyright holder. In general, the obligation to remove the copyrighted material arises when the online service provider receives a written notification from the copyright holder that is legally sufficient to put it on notice as to the claim. Though the process is not without its critics (who allege both inefficacy and overuse) it has, by and large, been a qualified success – respecting the rights of copyright holders while avoiding significant infringement on free expression.

The DMCA does neither declares that service providers aren’t liable nor does it impose upon them any obligation. What it does do is provide a safe harbour from liability that service providers may choose to take advantage of. Pretty much everyone does, but they’re not required to. Requiring them to would run hard into a number of legal challenges (including free speech ones) that Rosenweig clearly doesn’t understand.

The DMCA safe harbour provisions incentivise private companies to help protect an existing right. Copyright is a property law which often overlaps with free speech. In order to make sure that granting exclusive rights to works doesn’t impact core free speech principles, we have fair use. I’ve written multiple times about how the DMCA is poor protector of fair use, but it does at least try to account for fair use and free speech. Rosenweig does not. Here’s his plan:

That model might, with a small legislative change, be adapted to the removal of ISIS terrorist speech. All that would be required was a modification of the law to assign the copyright in all terrorist speech to a non-terrorist organisation with an interest in monitoring and removing terrorist content. Here are the essential components of such a plan:

  • Identification of terrorist organisations to whom the law would apply;
  • A definition of unprotected content associated with that terrorist organisation;
  • An extinguishing of copyright in such unprotected content; and
  • Transfer of that copyright to a third party.

Before we get into horrifying general implications of this plan, here’s a fun fact that Rosenweig doesn’t know: you can’t involuntarily transfer copyright. The government can’t seize a copyright. It can’t. This isn’t a part of the law where there are multiple interpretations or there’s an exception for the government. See?

(e)Involuntary Transfer.—

When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organisation purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

Title 11 is called “Bankruptcy.” So I guess if ISIS ever declares itself bankrupt in a U.S. court, Rosenweig’s in business.

Rosenzweig first points out that the DCMA is an American law and affects American companies. This is a true thing, so congratulate him. His main concern with passing a new law that replaces “infringing material” with “scary Muslims” is that this kind of law might “drive consumers away from American companies and their products.” YEAH. That’s the worry about implementing a system where the government can declare certain groups’ words their own property and then implement a program to delete them off the internet.

His second point is the First Amendment issues. Of which there are bucketload. Political speech, even abhorrent speech, is given a lot of protection.For the obvious reason that it doesn’t bode well when a government starts declaring certain points of view illegal. If you want to write a law that targets specific points of view, that’s a “content-based” restriction, and the Constitution doesn’t like those. The DMCA, for all its nightmarishly complicated provisions, is at least content-neutral. It’s based in copyright, which attaches to everything. Not just things that the government likes. Applying that same system to points of view doesn’t work precisely because the DMCA is actually tailored for free speech. We can argue whether it does that another time, but at least the intent is there.

By the way, Rosenzweig is sure that the law can be tailored to be legally defensible. His biggest concern is that free speech rhetoric will make people oppose the law. He is right, censorship doesn’t play well in campaign season.

Always be wary of people who aren’t concerned about actually protecting rights, but of looking bad.

Here’s another gem, emphasis ours:

the proposal is not self-executing. Even after the passage of legislation someone would need to undertake the responsibility of monitoring the network for problematic content and bringing its presence to the attention of the hosts or service providers through the DMCA mechanism. It is possible that the government might execute that function, but that would come with costs in terms of nimbleness and transparency that are associated with all government action. Government action would also bring with it the political spectre of heavy-handed censorship which might be debilitating, even if it were factually inaccurate. On the other hand, devolving that authority to a non-governmental organisation or other private sector actor might allow that actor to determine government policy in ways that are more consistent with its own priorities than those of the government.

“The political spectre of heavy-handed censorship which might be debilitating, even if it were factually inaccurate.” I CAN’T. It’s not a spectre. You’re literally proposing that things said by certain people are forfeit to the government which should use a law specifically tailored for free speech as a model for shutting down their dialogue. That’s what’s happening. Sometimes, what your proposal looks like is what it actually is.

And then, after giving us a terrifying glimpse into his mind, Rosenzweig finishes:

In any event, the entire line of speculation may be unnecessary. Most service providers have been reasonably ready to take down content that it too closely tied to terrorist celebration and activity. Nobody needs to compel YouTube to delete the ISIS beheading videos, they are happy to do it voluntarily. Still, one wonders about the outer limits of compulsory content disruption and the DCMA+Humanitarian Law paradigm may suffice.

Here’s the thing: when service providers take things down voluntarily, that’s not a First Amendment problem. Because they are not the government. And, regardless of the side the videos are on, violence and offensive material are prohibited by YouTube’s community standards. You do not have a constitutional right to prevent a private company from deleting your video, blog, tweet, whatever. You do have one that prevents the government from passing the kind of law Rosenzweig’s proposing.

“Still one wonders...” No. No one’s been wondering. Rosenzweig’s the only one who looked at ISIS and wondered if the DMCA could be rewritten as a totalitarian tool.

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