Posted By: Paul Isso
With the mass amount of videos being uploaded regularly to YouTube by millions of users, it’s not hard to understand why regulating potential copyright infringement on such web sites in the United States is no easy task. In fact, it’s a very difficult one. Having said that, YouTube users have the ability to initiate what is called a takedown notice — per 17 U.S.C. § 512 of the Digital Millennium Copyright Act (DMCA) — to try and have removed videos hosted on YouTube they believe may be infringing.
A simple explanation of the takedown notice process is the following: Person A, a user on YouTube, has uploaded a video onto YouTube. Entity B, a record label, for instance, comes across this video on YouTube and believes that this video person A has uploaded infringes the copyright held by Entity B. Entity B wants the video person A has uploaded to be removed from YouTube, so entity B sends a takedown notice to YouTube. YouTube then removes the video in question. Person A then has the option of sending YouTube what is called a counter notice if person A believes that Entity B’s takedown notice is wrongful or inaccurate. In that scenario, if person A’s claim that the video was not infringing is true, the video can get reinstated by YouTube and becomes available for viewing again.
With this process, though, come questions involving freedom of expression. It should be noted, first, that without some sort of government action, the First Amendment is never triggered. Because the DMCA is government-supported, when an entity utilizes the DMCA to initiate a takedown notice, the takedown notice they send results from an authority or privilege given to them by the government. Thus, it is arguable that the takedown notice is done with governmental approval and authority, thereby implicating the First Amendment. Since such cloaking arguably leads to there being government action, the First Amendment could come into play in some situations involving takedown notices.
What is also of importance here is that no First Amendment protection exists for someone engaging in copyright infringement. See Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985). Given this conclusion, First Amendment protections cannot be invoked by someone clearly engaging in copyright infringement, but instead can come into play in situations where someone is engaging in constitutionally protected expression.
In this context, an important question regarding free speech and takedown notices that has been raised is whether takedown notices constitute a form of prior restraint — that is, can takedown notices be preventive of speech from occurring before it occurs? How about actions that take place after the initial video upload on YouTube — can a takedown notice constitute a prior restraint then?
Let’s consider the question of prior restraint as it applies to a takedown notice initiated as a result of the initial/first video upload. In terms of the very first video posting that happens to elicit a takedown notice to be initiated — no, a takedown notice would not constitute a prior restraint. This is because person A’s initial video upload took place before a takedown notice was initiated by entity B — then causing the video uploaded by person A to be removed. That is why in this scenario a takedown notice wouldn’t amount to a prior restraint — because person A’s post comes before the takedown notice was initiated and before the removal of person A’s video.
How about after that process? Let’s say person A’s video is removed by way of a takedown notice being initiated as described above, and then person A initiates a counter notice and gets the video back up on YouTube, and then the process described above happens all over again and results in person A’s video being deleted once again? Even then, prior restraint doesn’t seem to be a truly legitimate concern because once again, person A needs to commit the act of uploading the video to YouTube before the takedown notice can be initiated by entity B. Without this action by person A, a takedown notice cannot (and would not) be sent by entity B because person A would not have uploaded anything for entity B to claim as an infringement. It is important to note, however, that the chilling of speech (not as it relates to prior restraint) may be occurring in that instance. But the chilling of speech as it relates to a prior restraint? Not quite.
Arguments can, of course, be made that the takedown notice process can at times come close to taking the form of a prior restraint, or appear to be a borderline prior restraint. While it appears generally speaking that takedown notices do not amount to a clear form of prior restraint or chill/prevent protected speech from occurring in the same sense that a prior restraint does, the very thought of having to go through the process of takedown notices and counter notices could perhaps begin to make some people who are familiar with this process perhaps somewhat too cautious as to what they decide to upload to YouTube (and publish on the Internet generally). In those situations, someone may want to post something that’s, in fact, legal, but by perhaps being too cautious, they decide not to because of fear of going through the takedown notice/counter notice process, possible litigation later on, etc. Such a situation, while not particularly chilling/preventative of protected speech as it relates to a prior restraint, could perhaps form the basis of an argument that the takedown notice process amounts to at least perhaps a borderline prior restraint. Even so, it’s likely just borderline — not an actual prior restraint on protected speech.
In conclusion, while there are legitimate First Amendment concerns surrounding takedown notices, prior restraint does not generally appear to be a truly legitimate concern in this area. As previously explained, in order for a takedown notice to be initiated, someone has to upload or post something. Without that initial expression by person A, entity B cannot initiate a takedown notice — because then there would be nothing requested to be taken down. So the bottom line here is that person A’s freedom of expression is generally not affected (and not by a prior restraint) before they upload what it is they are seeking to upload, especially as it relates to person’s A’s initial/first upload or post. If something truly conclusively amounted to a prior restraint, person A would not be able to make the initial post or publish before receiving notification of a takedown notice, which is not the case here.