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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  21 of reasoning assumes that the free flow of information is more important to consumers than the price of access, the quality of customer service, or the unique content provided by a particular ISP. Along the same lines, it is doubtful that a scheme modeled after the DMCA’s copyright provision would protect speech. Under the mandates of the DMCA, formal notification must include proof the party is authorized to act on behalf of the copyright owner, identification of the copyrighted work being infringed and the location of the infringing material, as well as a statement made in good faith that the complaining party believes that the use is an infringement. “Such a procedure,” Butler (1999/2000) argues, “could work effectively in the context of distributor liability for defamatory statements as well. . . . Each complainer could be required to swear (under penalty of perjury) that she has made her accusation of libel in good faith, and to make a detailed factual accounting of her basis for claiming that the assertion is false and injurious to her reputation” (p. 262). By creating objective standards, Hallett (2001) suggests, ”the First Amendment concerns will also be alleviated because the notice and counter notification standard takes the pressure off of the ISP.” While notice and takedown procedures might provide some measure of procedural protection for speech, the analogy to copyright law is extremely tenuous. Although copyright infringement raises difficult issues, assessing copyright infringement is not nearly so complicated or as subjective as evaluating defamation claims. Along the same lines, it is difficult to imagine a corporation or a politician using copyright infringement to systematically silence its critics. The real problem with the notice and takedown solution, however, is that it offers comparatively little protection for expression (Band and Schruers, 2002, pp. 319-320). An ISP cannot be sued for removing speech upon receipt of a complaint, but the ISP would become liable as a

Authors: Herbeck, Dale.
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21
of reasoning assumes that the free flow of information is more important to consumers than the
price of access, the quality of customer service, or the unique content provided by a particular
ISP.
Along the same lines, it is doubtful that a scheme modeled after the DMCA’s copyright
provision would protect speech. Under the mandates of the DMCA, formal notification must
include proof the party is authorized to act on behalf of the copyright owner, identification of the
copyrighted work being infringed and the location of the infringing material, as well as a
statement made in good faith that the complaining party believes that the use is an infringement.
“Such a procedure,” Butler (1999/2000) argues, “could work effectively in the context of
distributor liability for defamatory statements as well. . . . Each complainer could be required to
swear (under penalty of perjury) that she has made her accusation of libel in good faith, and to
make a detailed factual accounting of her basis for claiming that the assertion is false and
injurious to her reputation” (p. 262). By creating objective standards, Hallett (2001) suggests,
”the First Amendment concerns will also be alleviated because the notice and counter
notification standard takes the pressure off of the ISP.”
While notice and takedown procedures might provide some measure of procedural
protection for speech, the analogy to copyright law is extremely tenuous. Although copyright
infringement raises difficult issues, assessing copyright infringement is not nearly so complicated
or as subjective as evaluating defamation claims. Along the same lines, it is difficult to imagine
a corporation or a politician using copyright infringement to systematically silence its critics.
The real problem with the notice and takedown solution, however, is that it offers comparatively
little protection for expression (Band and Schruers, 2002, pp. 319-320). An ISP cannot be sued
for removing speech upon receipt of a complaint, but the ISP would become liable as a


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