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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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June 13, 2005

Even Copyright Infringing Spammers Deserve Free Speech Protections

Posted by Ernest Miller

Denise Howell endorses (Putting The DMCA To Good Use) Kevin Marks's idea to use the notice-and-takedown provisions of the Digital Millennium Copyright Act to attack "spamblogs" (Using the DMCA for Good).

There are spammers who copy entire blog posts from others to act as fresh bait for their search spoofing tricks. This is commercial use, and a violation of most CC licenses (and indeed default copyright).Stephanie Booth recently did this [issued a DMCA notice and takedown] to a spammer at who plagiarized one of her posts on Jennifer Garner, on what was a Google Adsense supported spamblog. When she sent a DMCA notice, they took down the page and apparently lost their Adsense status. [links in original]
Although I sympathize with the desire to inhibit spamming and enforce copyright, I must demur. I cannot endorse use of the DMCA's notice-and-takedown provisions, unless there are no other reasonable legal alternatives.

The problem with the provisions is that they lack important procedural safeguards for free speech. Copyright holders can easily, with virtually no justification and no judicial oversite, cause a website to remove speech that is perfectly legal for days, if not weeks. There is no requirement that the copyright holder actually file a lawsuit, if there is a counter notification. There is no recourse for damages for false takedown notices as long as they were issued in "good faith." This makes the DMCA ripe for abuse (EFF: Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands) and, among other reasons, an unjust law.

We should not use unjust laws, giving them legitimacy, unless there are no reasonable alternatives. In this case, there are a number of alternatives, such as sending a polite request, sending a threatening legal letter, contacting the ISP directly, or even suing for copyright infringement (statutory damages are your friend).

We should not be so quick to use law to terminate speech merely on our say so. You say spam, I say free speech (until a court rules otherwise).

Please see the comments for a continued debate.

Comments (13) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression


1. Kevin Marks on June 14, 2005 12:39 AM writes...

Ernest, I agree the DMCA should be repealed, or all the reasons you give, and the equal protection violations in the Macrovision clause.
However, spammers have the same rights as the rest of us, and can consult the EFF's excellent guide if they feel they have been abrogated.
Spammers rely on wholesale abuse of others' resources to extract a small return. It should only take a few such takedowns to make this particular abuse unprofitable.

If I were to republish this entire post using your name on a site advertising for mesothelioma lawyers, you have the wherewithal to mount a legal challenge at little direct personal cost, as you can write threatening legal letters in your sleep. That the rest of us can't afford to get representation for such minor-seeming transgressions is what spammers rely on.

If this increased use draws attention to the DMCAs flaws and leads to its amendement, all the better.

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2. Raven on June 14, 2005 05:25 AM writes...

The problem with the DMCA is that it doesn't leave much in the way of alternatives to its notice-and-takedown provisions. Though I personally prefer to deal with the infringing party directly through standard cease and desist letters, that's not always practical, either due to the lack of up-to-date contact information or the uncooperative nature of the plagiarist.

At that point, we have to turn to the host for relief. As someone who's dealt with over 100 incidents of copyright infringement, I know that most hosts, at least 90%, require DMCA notices to even read your letter.

Yes, I prefer other alternatives and actively seek them out, but options run thin in this battle. As flawed as the DMCA is, it's all that many of us have at times...

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3. Ernest Miller on June 14, 2005 06:18 AM writes...

You know the spammers are wrong, I know the spammers are wrong. But I just don't think it should be up to my independent judgement what speech to suppress simply on my say so. No one should have the power to suppress such speech without adequate safeguards against abuse. Even if our laws gives us that power, we shouldn't exercise it. After all, that is how many bad anti-speech laws start. We'll only use it for good. We can be trusted with this power to suppress speech. No, we can't. I can't.

As a practical matter, such "good" uses of the DMCA will make it that much harder to get things changed.

Finally, I didn't say not to use it ever. I said not to use when there are reasonable alternatives. Simple requests for removal can be written by anyone. Some ISPs may ignore the letter, but not all. 10% is better than nothing. If you can't afford a lawsuit, that is understandable.

Of course, a few lawsuits would put these guys out of business much quicker.

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4. Denise Howell on June 14, 2005 07:58 AM writes...

So people need to eschew an available legal procedure purely on principle? Has any court found the takedown notices unconstitutional?

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5. Ernest Miller on June 14, 2005 08:31 AM writes...

I didn't say that the law was unconstitutional, though a case could be made that is, given that it results in suppression of speech before a court has any chance to intervene. If a court had already said it was unconstitutional, then using the law would be a moot point.

Furthermore, simply because a law is constitutional does not make it just.

If you believe the law is just, then there is no issue. Use the law as you see fit.

If you believe the law is unjust, as I do, then you must consider whether using (and therefore tacitly supporting) the law is proper. If there are adequate alternatives, then I would argue in this case, no.

The ability to suppress speech simply because I have a good faith belief that the speech is illicit is, in my view, wrong. Even if a particular application of the law would be just, such power should not be exercised unless there is no adequate alternative. We shouldn't get in the habit of suppressing speech we believe is illicit without adequate safeguards for freedom of expression.

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6. Raven on June 14, 2005 11:48 AM writes...

I think there's much more agreement than disagreement here. I completely agree that the DMCA puts free speech at risk and I'll go one step further by saying that it doesn't offer any new protections to people like myself who are put in a position of defending copyrights. I have to hammer out awkward and carefully-worded DMCA notices when a simple nudge probably would have done before.

There are many hosts (I'd say the bulk of the aforementioned 10%) who have very solid copyright infringement reporting policies based upon their normal abuse system. You report infringement like you would any other inappropriate content, it's much easier, gets a quicker response and more decisive action. I sent out four DMCA faxes yesterday (the only way they would even read my letter was if I A) used the DMCA and B) faxed it to them) and I'm still waiting to hear back from three of them.

What's needed, in my opinion, is greater education on the part of service providers on how to handle copyright issues without abusing the DMCA. With all major providers, including Google, Yahoo, Microsoft and Lycos, requiring DMCA notices, people like myself who hate the DMCA but need to be protected are painted into a corner.

I actually have a file somewhere on this computer that lists the service providers I've dealt with and which do or do not require DMCA notification. It's a pretty interesting read.

But as long as hosts are more interested in CYA than free speech, we're all in trouble. The DMCA is the first law I can think of in a long time where nobody wins.

In the meantime, I always seek out alternatives. I much prefer the direct route and, when dealing with hosts, I generally know whoch do and do not need DMCA and I never use it needlessly. That's not my style...

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7. Ernest Miller on June 14, 2005 12:01 PM writes...

Thanks for the comments. Perhaps we can agree that the DMCA isn't a good, but is sometimes a necessary evil, or perhaps it is, sometimes, the lesser or two evils.

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8. Denise Howell on June 14, 2005 12:04 PM writes...

Your point that people should consider the broader, potentially negative ramifications of laws that may serve expedient ends is a good one. If everyone adopted this kind of long view and made sure their strategic legal decisions were in line with their ethics and conscience, the world would be a better place. In this particular case though several factors make me think Kevin's plan might not cause free speech loving citizens to lose too much sleep.

First, the law is on the books and--though it might make a point--no amount of "conscientous objection" is going to make it go away.

Second, we're fortunate enough to have a legal system that, while far from perfect, does provide means whereby faulty or overbroad legislation can be changed. The fact that a number, even a demonstrably large number, of people might decide not to avail themselves of the law--thus providing some evidence that the law is unpopular--would not play a great role in that process of change. Courts and elected representatives would be more concerned with concrete examples of the law's problematic impact than with the conduct of those who believe the law to be Draconian and who thus act accordingly.

Finally, it's hard to stomach the idea that though all kinds of speech may be threatened by the expedited and summary procedures this law provides, it's the unscrupulous conduct of linkspammers that will escape the law's effects if speech loving netizens forego the takedown procedures while others with fewer compunctions and more affirmatively speech-squelching agendas do not.

I know, I know. This might sound like I'm saying the ends justify the means, or that personal actions and ethics aren't relevant. That message certainly is not my intention. The fact remains we have this system of elected representatives, and the checks and balances of a three-branch government. I guess I have sufficient faith in that system to point to it say those folks ultimately are in a better position than I am to decide which laws ought not be enforced.

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9. Ray Gordon on June 15, 2005 08:28 PM writes...

Oh sure, judges would just LOVE to have everyone running to court and clogging up the docket when a simple DMCA notice would have sufficed.

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10. Ernest Miller on June 15, 2005 08:33 PM writes...

The RIAA has launched over 10,000 lawsuits. A few against spammers will likely be welcomed by judges (who don't like spam either).

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11. Kevin Marks on June 16, 2005 01:36 AM writes...

An earlier suggestion I made regarding spam was for some enterprising law firm to facilitate class actions against spammers:
When you get spam, you forward it to a special email address, which aggregates it and keeps your address. When there are enough copies to justify a case, the lawyers track down the spammer and file a class action, using whichever spam laws apply. They disperse the damages back via PayPal, keeping a percentage themselves.
Copyright-violating blogspam could be similarly handled. Isn't the going rate $150,000 per infringement?

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12. Denise Howell on June 16, 2005 08:52 PM writes...

I've been hoping someone would analyze whether blogspam might come within the scope of any of the antispam legislation. It's yet another good point and idea, Kevin.

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13. Kevin A. Lloyd on June 19, 2005 12:13 AM writes...

I have a question: When is a spamblog and spamblog? I totally understand, what I would call, blog cloning/mirroring, that is just disgusting and as a reader/searcher I hate it with a pation. That is just plain out wrong. But what about a 'blooger' (for lack of a better word) who gathers information from various sources and packages them for his readers, providing full links to the orginal and perhaps only inserting partial articles? What about people like that?

They would bring traffic to the orinators site, would they not? What they do might even be considered some sort of manual RSS feed.

I would just like to know, how wrong that is. Because some people have a topic that interests them, but they just can't generate enough original information to support an entire blog, but they would like to share information they've found with other readers. So again I ask, when is a spamblog and spamblog?

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