24 Harv. J. L. & Tech. 171 (2010-2011)
Free Speech Unmoored in Copyright's Safe Harbor: Chilling Effects of the DMCA on the First Amendment

handle is hein.journals/hjlt24 and id is 177 raw text is: Harvard Journal of Law & Technology
Volume 24, Number 1 Fall 2010
FREE SPEECH UNMOORED IN COPYRIGHT'S SAFE HARBOR:
CHILLING EFFECTS OF THE DMCA ON THE FIRST
AMENDMENT
Wendy Seltzer*
TABLE OF CONTENTS
1. INTRODUCTION            ................................     .....171
11. DMCA's CHILL AS PRIOR RESTRAINT BY PROXY....................177
A. Error Costs of the DMCA .      ...................         ........ 179
B. Intermediation         ........................................... 181
C. The DMCA and the Economics of Speech .........            .........184
111. FIRST AMENDMENT PROBLEMS            ...................    .....187
A. Copyright and the First Amendment       .............       ......187
B. Prior Restraints on Speech       ...................       .......190
C. Understanding Chilling Effects..     ............................. 193
D. Chill, Intermediated        .........................     .....197
IV. THE CHILL WINDS OF COPYRIGHT AND DMCA......               ......200
A. Errors and pressures         .........................     .....204
B. The Chill in Practice       ........................      ......210
C. Repeat Infringers             ...............................218
D. Limited Warming?          ...................................221
E. Against Copyright Secondary Liability         .................225
V. REFORMING COPYRIGHT TAKEDOWN            .............        .......226
I. INTRODUCTION
The 2008 U.S. Presidential race was a multi-media campaign.
The candidates organized volunteers and engaged voters online, their
partisans created video clips, and the campaigns themselves used nu-
merous existing and new platforms to share the word and get out the
* Fellow, Berkman Center for Internet & Society at Harvard Law School and Silicon Fla-
tirons Center at University of Colorado School of Law. Contact wendy aseltzer.org for the
latest version. The author founded and leads the Chilling Effects Clearinghouse,
http://www.chillingeffects.org/, from which much of the evidence is drawn. The author
thanks participants in Harvard's Berkman Center luncheon series, Silicon Flatirons and the
University of Colorado Law School colloquium, and the IP Scholar Works-in-Progress for
helpful discussion and comments on earlier drafts, and, particularly, her colleagues and
collaborators on the Chilling Effects project.
C 2010 Wendy Seltzer. Reproduction permitted under the Creative Commons Attribution
3.0 License, http://creativecommons.org/licenses/by/3.0/

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