In our continuing effort to protect against online censorship that would harm fans, last week, the OTW filed an amicus brief in the case of Garcia v. Google. The case involves the scope and application of the safe harbor provisions of the DMCA and section 230 of the Communications Decency Act, which together prevent content hosts — like YouTube, the AO3, and many others — from being liable for what their users post.
This case is partly a classic example of “bad facts make bad law,” since the plaintiff — an actress tricked into taking part in the film Innocence of Muslims — has good reason to want the film taken down. But in response to her request, the court not only applied a tortured interpretation of copyright law (an issue addressed in many other briefs filed with the court at the same time), but also ignored important anti-censorship “safe harbor” laws.
The court forced Google to not only to take the film down, but also to ensure that it is never re-posted. In so ruling, the court ignored the provisions that protect content hosts from having to “police” what their users post. These safe harbors exist to prevent online censorship, and they are important to fans. Just about every site that hosts fan content depends on them. Just imagine if every allegedly infringing or defamatory fanwork led to a lawsuit, or if fan sites were required to monitor their archives to make sure no one ever posted objectionable material: many of the sites fans rely on wouldn’t be able to afford to operate. That’s the sort of thing these laws are designed to prevent.
For that reason, the OTW, along with Floor64 (the operator of TechDirt), filed a brief asking the court to reconsider its decision with an eye to the fact that although the decision may create a good factual result in this particular case, it makes terrible law that will harm freedom of expression on the Internet. As Techdirt explained in its post about the brief, “There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress’ intent in his ruling, and we’re hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.”
For those interested in reading more, you can find this latest brief on our Legal Advocacy page along with past filings.