The CDA-DMCA Disparity

If you’re in the web publishing practice, you ought to know about this essential paradox: the disparity between the safe harbor exemptions governing copyright infringement (“DMCA”) and defamation/exposure (“CDA 230”). It came to me after reading Dan Solove’s book, and then again when Rebecca Tushnet stated it in her panel at the Reputation Economies Symposium this past weekend.

In summary: under the 1998 Digital Millenium Copyright Act (DMCA), or, more specifically, the provisions of the Online Copyright Infringement Liability Limitation Act (OCILLA), if Alice has a website, and a user posts something copyrighted to Bob, then Bob can send a “notice and takedown” – if Alice doesn’t take it down, Bob can ask her ISP to disconnect her (else the ISP would be liable for copyright infringement.) But if a user on Alice’s website defames Bob (or otherwise brings private facts to light), she is under no legal obligation to take it down, since the 1996 Communications Decency Act’s Section 230 immunizes her and her ISP.

A Google search suggests that Jonathan Band was one of the first lawyers to note this disparity in 2002, writing in the Cardoza Arts & Entertainment Law Journal (co-authored with Matthew Schruers), “Safe Harbors Against the Liability Hurricane: the Communications Decency Act and the Digital Millenium Copyright Act”:

This divergence between the CDA and the DMCA is both ironic and disturbing. It is ironic because although Congress and industry spent relatively little time crafting the CDA’s simple provisions and invested several years in intense negotiations drafting the DMCA’s detailed provisions, the hastily drafted CDA has afforded ISPs far more protection than the DMCA. The divergence is disturbing because it suggests that the courts believe that copyrighted works deserve more protection than the individuals harmed by the torts falling within the scope of the CDA.

From the conclusion:

It is not surprising that Congress drafted the CDA’s safe harbors more broadly than the DMCA’s. After all, the content community was far better organized than likely victims of defamation, and thus it was far better situated to lobby against broad safe harbors for ISPs. What is hard to explain is the inconsistency between the courts’ generous reading of the CDA and parsimonious reading of the DMCA.

The gap between CDA §230(c) and DMCA (Title 17, §512) is four thousand words. These words describe a process to be followed when a claim of harm is made.

There’s no reason this process can’t be defined outside of the law. That is what I have done with PONAR. The challenge would be getting people to follow it.