INTEREST OF THE AMICUS

Amicus curiae respectfully offers this brief to address the First Amendment implications of the panel decision's construction of the Online Copyright Infringement Liability Limitation Act, enacted as Title II of the Digital Millennium Copyright Act of 1998 ("Title II"), 17 U.S.C. § 512. Amicus has an interest in ensuring that the Court properly interprets theTitle II safe harbor provisions.

This brief supports RemarQ Communities, Inc.'s ("RemarQ") Petition for Panel Rehearing and Rehearing En Banc. Amicus submits that the Panel misinterpreted Title II and in so doing imposed onerous burdens on online service providers ("OSPs"), contrary to Congressional intent and inconsistent with First Amendment law. Amicus takes no position on other issues.

Amicus Electronic Frontier Foundation ("EFF") is a non-profit public interest organization working to protect fundamental civil liberties, including freedom of Internet expression.

ARGUMENT

The panel decision, if permitted to stand, will give OSPs excessive incentives to engage in private censorship. The First Amendment is hostile to legal doctrines that inhibit freedom of speech by making individuals more reluctant to exercise it. Smith v. California, 361 U.S. 147, 150-152 (1959) (bookstore cannot be strictly liable for selling an obscene book).

Smith's logic is simple: If liability does not require specific knowledge, the burden falls on the bookseller to know the contents of every book, "he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature." Id. at 153. "[T]he bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted." Ibid. The result "would be a censorship affecting the whole public, hardly less virulent for being privately administered." Id. at 154.

Usenet newsgroups, and the Internet of which they are a part, are today's bookstores, libraries, and more. Reno v. ACLU, 521 U.S. 844, 853 (1997); id. at 851 (lauding Usenet newsgroups for "serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls"; id. at 870 ("Through the use of chat rooms, any person with a phone line can become a town crier . . . . Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer") (emphasis added).

The potential for private and self-censorship has also moved online. One reason is copyright law.¹ Fortunately, 17 U.S.C. § 512(c) ("§ 512(c)") and its related provisions address the issue in Smith - that online service providers' ("OSPs) fear of liability without knowledge would lead them to restrict others' speech - without hindering copyright enforcement. Congress sought to make OSPs middlemen between copyright owners and alleged infringers by establishing strict, detailed "safe harbor" procedures that minimize OSPs' incentives "to take down material against third parties' interests in ensuring that material not be taken down." H.R. Rep. No. 105-551 (II) at 59 (1998) (§ 512(g)(2)(B) put-back procedures). Clearly, Smith's reasoning remains sound today.

The panel decision, unfortunately, disrupts the statutory scheme, creating First Amendment problems. Here, a copyright owner seeks to compel an OSP to remove or disable access to two entire newsgroups merely by alleging that they contain unspecified articles that infringe unspecified copyrighted works. Notice so vague hardly comports with Congress's intent that notice permit "efficient[]" and "smooth[]" operation of the statutory procedures - i.e., that OSPs not be unduly burdened. S. Rep. No.105-190, at 47 (1998) ("S. Rep."). Indeed, notice is only the first step in the process, and the panel decision greatly increases the burden associated with later steps.

In short, the panel decision threatens free speech on the Internet.

I. LIABILITY FOR COPYRIGHT INFRINGEMENT POSES A GENUINE RISK TO INTERNET SPEECH

Copyright law and freedom of speech have long existed in tension. L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 20 (1987) (crown sought "to control the output of the press during a time of religious controversy that threatened the government's stability"). For the Framers, the copyright power "caused concern for the liberty of the press and was one of the justifications for the adoption of the first amendment." Id. at 17 (footnote omitted).

Directly at issue in this case is the liability of OSPs for participating in the Usenet system. As the district court explained, Usenet is "an international network of newsgroups, which are discussion forums for the exchange of ideas and information." Slip Op. at 1. "Newsgroups contain 'articles' or 'messages,' which can include text, photographs, video, and audio." Ibid. No one entity creates or maintains newsgroups; individual users create them. Id. at 2. Anyone with access to a Usenet server (a computer that participates in the Usenet system) can read or post messages to newsgroups carried by that server. When a user posts a message to a newsgroup, the server automatically forwards the article to adjacent servers, which in turn forward it to others, until the article is available on all servers that carry the particular newsgroup. Messages are stored on servers temporarily, where they can be read and responded to by other users. Ibid.

The potential of copyright for stifling unwanted criticism in newsgroups was demonstrated in Religious Technology Ctr v. Netcom On-Line Communications Svcs, Inc., 907 F.Supp 1361 (N.D.Ca. 1995). The plaintiff religious group held copyrights in religious works. A former group member "turned vocal critic" posted portions of these works on a Usenet newsgroup devoted to discussion and criticism of the religion. Id. at 1365. This posting to a local bulletin board service ("BBS") resulted in an automatic copying onto Netcom's server, where Netcom's customers could read and reply to the infringing postings. Id. at 1367-68. .

The group sued the former member, the BBS, and Netcom, on various theories, including direct and indirect copyright infringement. See Religious Tech. Ctr. v. Lerma, 908 F.Supp. 1362, 1368 (E.D. Va. 1995) (same group asserted unsuccessful copyright and trade secret claims; on motion for attorney's fees, group's motivation termed "the stifling of criticism and dissent of the religious practices of Scientology and the destruction of its opponents").

The Netcom court found that "[w]here the infringing subscriber is clearly directly liable," it made no sense "to adopt a rule that could lead to the liability of countless parties whose role . . . is nothing more than setting up and operating a system that is necessary for the functioning of the Internet." Netcom, 907 F.Supp. at 1372. Such a rule "would hold the entire Internet liable for activities that cannot reasonably be deterred. Billions of bits of data . . . are necessarily stored on servers throughout the network and it is thus practically impossible to screen out infringing bits from noninfringing bits." Id. at 1372-1373. Echoing Smith, the court noted that "[i]f Usenet servers were responsible for screening all messages coming through their systems, this could have a serious chilling effect on what some say may turn out to be the best public forum for free speech yet devised." Id. at 1377-1378. .

II. IN CRAFTING THE § 512(C) SAFE HARBOR PROCEDURE, CONGRESS SOUGHT TO LESSEN THE TENSION BETWEEN COPYRIGHT AND FREE SPEECH

Among Congress's goals in enacting Title II was to relieve OSPs from unreasonable liability for copyright infringement. S. Rep. at 8 (OSPs, "in the ordinary course of their operations. . . must engage in all kinds of acts that expose them to potential copyright infringement liability"). Congress also recognized that copyright liability for passive, automatic transmission of content presents significant free speech issues. The § 512(c) safe harbor procedure thus "essentially codifies the result in the leading and most thoughtful judicial decision to date: [Netcom]" H.R. Rep. No. 105-551(I), at 11 (1998).

In this scheme, OSPs act as a middlemen between copyright owners and alleged infringers. Notice to an OSP under § 512(c)(3)(A) is the first step in a process that continues through: "take-down," § 512(c)(1)(C); notice from the OSP to the user who posted the contested content, § 512(g)(2)(A); counter-notification from the user to the OSP, § 512(g)(3)(C); notice of counter-notification to the copyright owner, § 512(g)(2)(B); and "put-back" of the contested content - unless the copyright owner demonstrates that judicial action has begun. § 512(g)(2)(C). Notably, the put-back procedures "were added to balance the incentives created in new Section 512 for [OSPs] to take down material against third parties' interests in ensuring that material not be taken down." H.R. Rep. No. 105-551 (II) at 59. Given Congress's endorsement of Netcom, it must be presumed that these third parties' interests include the interest in free speech.

III. THE PANEL'S ERRONEOUS CONSTRUCTION OF THE NOTICE REQUIREMENTS UNDERMINES LEGISLATIVE PROTECTION FOR SPEECH IN VIOLATION OF THE FIRST AMENDMENT

Here, the district court ruled that Als Scan's letter failed to comply with § 512(c)(3)(A) because it did not provide a list of infringed works and did not identify the infringing works in sufficient detail to enable RemarQ to locate and disable them. See Slip Op. at 9. Unfortunately, the panel mistakenly found that Als Scan substantially complied with these notification requirements.

By unduly relaxing the notice requirements of § 512(c)(A)(ii) and (iii), the panel decision allows any copyright owner to put an OSP on the horns of a dilemma: without specific knowledge of what was allegedly infringed or is allegedly infringing, the OSP must either remove or disable access to the unspecified material or forgo the § 512(c) safe harbor.² A cautious OSP thus has a powerful incentive to take down a whole newsgroup.

Thus distorted, the statutory regime places on OSPs the kind of burden condemned in Smith and Netcom, creating a serious chilling effect. As a result, the safe harbor procedures create an invalid prior restraint by inducing premature and unnecessary "take-down."

A. The panel misconstrued the notice requirements

The fundamental problem with the panel decision is simple. Congress intended that the § 512(c)(3) notice requirement permit "efficient[]" and "smooth[]" operation of the statutory procedures. Thus, "substantial compliance" permits notification to be effective despite "technical errors" like "misspelling a name, supplying an outdated area code if the phone number is accompanied by an accurate address, or supplying an outdated name if accompanied by an e-mail address that remains valid for the successor of the prior designated agent or agent of a copyright owner." S. Rep. at 47.

Notice like Als Scan's frustrates smooth, efficient operation of these procedures and cannot be "substantial compliance." For instance, "[t]he goal of [§ 512(c)(3)(A)(iii)] is to provide the [OSP] with adequate information to find and examine the allegedly infringing material expeditiously." H.R. Rep. 105-551 (II), at 55 ("An example . . . would be a copy or description of the allegedly infringing material and the so-called 'uniform resource locator' (URL) (i.e., web site address) which allegedly contains the infringing material."). Merely identifying newsgroups does not permit easy identification of allegedly infringing messages out of the thousands of messages within those newsgroups.

The panel's construction of "substantial compliance" also undermines later steps. For instance, an OSP must, after take-down, take "reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material." § 512(g)(2)(A). Reasonable steps "include . . . sending an e-mail notice to an e-mail address associated with a posting, or if only the subscriber's name is identified in the posting, sending an e-mail to an e-mail address that the subscriber submitted with its subscription." H.R. Rep. No. 105-551(II), at 59. Congress expected that individual postings would be identified.

Also, this requirement presupposes that the OSP can identify the subscriber from the information in the initial notice. Notice like Als Scan's - identifying two newsgroups that allegedly contain thousands of pictures- does not permit prompt, reasonable steps. Conversely, if the burden of identifying the subscriber is too great, the OSP may simply forgo notification under § 512(g)(2)(A), given that it need not take unreasonable steps. If so, then the entire procedure is short-circuited without the possibility of put-back, making the take-down permanent.

B. Notice must be specific to avoid unduly burdening OSPs.

The panel decision means that a copyright owner can tell an OSP that a newsgroup contains an infringing work without identifying it, and refer the OSP to the copyright owner's entire catalog of copyrighted works - even though the copyright owner is better positioned to identify possible infringement. This unreasonable burden on OSPs forces them to "steer far wider of the unlawful zone." Speiser v. Randall, 357 U.S. 513, 526 (1958).

Such take-down is like the conduct expected of booksellers in Smith. Indeed, the situation is worse for copyright infringement than obscenity. A bookstore may suspect that a particular book is obscene, because of its sexual nature. Determining infringement can be far more difficult, especially given the fact-specific nature of defenses like fair use. See Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997) (finding infringement in TV broadcast in which plaintiff's copyrighted work appeared as a wall decoration).

C. Under the panel decision, take-down becomes an invalid prior restraint.

"The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment." Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390 (1973). Many instances of take-down pursuant to the panel's lax notice standard will likely be prior restraints, even if not aimed at entire newsgroups.

First, take-down will occur under an inadequate determination as to actual infringement. See Freedman v. Maryland, 380 U.S. 51, 58-59 (1965) (to avoid dangers of censorship, burden must be on censor, interim restraints must be short and preserve status quo, and final judicial decision must be prompt). Under the panel decision, none of these safeguards exists.

Second, blocking a newsgroup at one OSP blocks access by all its subscribers. The Netcom court characterized the plaintiff's demand for a court order that Netcom terminate the BBS's access to the Internet as "overbroad, as it would unnecessarily keep hundreds of users, against whom there are no allegations of copyright infringement, from accessing a means of speech." Netcom, 907 F.Supp. at 1377 n. 24.

Furthermore, newsgroups contain many messages, only some of which contain the allegedly infringing material. The panel decision would drive OSPs to block the entire newsgroup, however, including innocent messages. "[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1973).³

CONCLUSION

Copyright has long been used to chill protected speech. The panel's construction of § 512(c)(3)(A) endangers not only newsgroups but all online sites maintaining large amounts of user-posted material.

For these reasons, the Court should grant RemarQ's Petition for Panel Rehearing and Petition for En Banc Review.

Respectfully submitted,

_________________________________

Lee Tien

Counsel of Record

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