"Free Speech Unmoored in Copyright's Safe Harbor: Chilling Effects of the DMCA on the First Amendment"Posted in Copyright, Digital Copyright Wars on April 1st, 2010
Wendy Seltzer has self-archived "Free Speech Unmoored in Copyright's Safe Harbor: Chilling Effects of the DMCA on the First Amendment" in SSRN.
Here's an excerpt:
Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law's shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech. . . .
Part I surveys the legal, economic, and architectural sources of the DMCA's chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright's place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.