Unjust and extraterritorial law: DMCA: Difference between revisions
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At the same time, the major online platforms that control most global publication and communication are all legally based in the United States. This includes services such as YouTube, Twitch, Facebook, Instagram and others. Even when local consumer law requires these companies to maintain a presence in each country, their terms of service clearly state that every user, whether located in Beijing, Timbuktu or Helsinki, must follow US law and appear before US courts in case of a dispute. This effectively imposes a foreign legal system on millions of people worldwide who have never had any connection to the United States, making the DMCA one of the clearest examples of extraterritorial law applied through private corporate infrastructure. | The DMCA is a US legal framework that deprives the accused of the presumption of innocence by removing or blocking their creative work immediately, without any formal investigation or judicial hearing. Once a takedown notice is filed, the burden is on the user to prove they are not infringing, often by revealing personal information and accepting legal risk. The content remains offline until the conflict is resolved, regardless of the user's good faith or the legitimacy of the original claim. | ||
At the same time, the major online platforms that control most global publication and communication are all legally based in the United States. This includes services such as YouTube, Twitch, Facebook, Instagram and others. Even when local consumer law requires these companies to maintain a presence in each country, their terms of service clearly state that '''<u>every user, whether located in Beijing, Timbuktu or Helsinki, must follow US law and appear before US courts</u>''' in case of a dispute. This effectively imposes a foreign legal system on millions of people worldwide who have never had any connection to the United States, making the DMCA one of the clearest examples of extraterritorial law applied through private corporate infrastructure. | |||
==How it works== | ==How it works== | ||
<blockquote>Section 512 of the Digital Millennium Copyright Act establishes that online service providers shall not be held liable for copyright infringement if they respond expeditiously to remove or disable access to material that is claimed to be infringing, upon notification from the copyright holder.</blockquote>In simple terms, anyone can file a DMCA claim... whether manually or automatically... and the content will be removed first, without any investigation or hearing. The responsibility falls entirely on the user to prove that their use was legal. This includes proving fair use, public domain status, or authorship, which may be difficult or impossible without legal assistance. | <blockquote>Section 512 of the Digital Millennium Copyright Act establishes that online service providers shall not be held liable for copyright infringement if they respond expeditiously to remove or disable access to material that is claimed to be infringing, upon notification from the copyright holder.</blockquote>In simple terms, anyone can file a DMCA claim... whether manually or automatically... and the content will be removed first, without any investigation or hearing. The responsibility falls entirely on the user to prove that their use was legal. This includes proving fair use, public domain status, or authorship, which may be difficult or impossible without legal assistance. | ||
As a result, virtually every major platform operating in the global digital space enforces DMCA takedowns. This includes not only corporate platforms like YouTube, Instagram and Twitch, but also so-called alternative or decentralized platforms such as Mastodon, Odysee, PeerTube, Ghost.org and | As a result, virtually every major platform operating in the global digital space enforces DMCA takedowns. This includes not only corporate platforms like YouTube, Instagram and Twitch, but also so-called alternative or decentralized platforms such as Mastodon, Odysee, PeerTube, Ghost.org, and a video platform whose name blends "Bit" and "Chute" (commonly written as one word). Even services hosted outside the United States apply similar mechanisms. Kick, based in Australia, explicitly refers to the DMCA in its content policy. Pixelfed, based in Canada, is subject to Canada's "notice and notice" system, which forwards copyright complaints to users and exposes them to risk, even when no court order is involved. | ||
In practice, this means that no matter what platform you use, your content can be taken down by an automated or human moderator as soon as a report is filed. It will then be up to you, the user, to provide legal proof that your content is lawful if you want to restore access or visibility. This reverses the usual burden of proof and turns every user into a potential suspect by default. | In practice, this means that no matter what platform you use, your content can be taken down by an automated or human moderator as soon as a report is filed. It will then be up to you, the user, to provide legal proof that your content is lawful if you want to restore access or visibility. This reverses the usual burden of proof and turns every user into a potential suspect by default. | ||
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===Violation of due process and presumption of innocence=== | ===Violation of due process and presumption of innocence=== | ||
The DMCA contradicts the Fifth and Fourteenth Amendments of the United States Constitution, which guarantee fair trial and due process. In In re Winship (1970), the Supreme Court confirmed that the presumption of innocence is essential to any criminal proceeding. In Coffin v. United States (1895), the Court famously stated that the presumption of innocence is axiomatic and elementary. According to the New York Family Court Act, this principle applies even in juvenile cases and should never be bypassed without oversight. | The DMCA contradicts the Fifth and Fourteenth Amendments of the United States Constitution, which guarantee fair trial and due process. In In re Winship (1970)<ref>https://constitutionallawreporter.com/2017/11/01/in-re-winship-1970/</ref>, the Supreme Court confirmed that the presumption of innocence is essential to any criminal proceeding. In Coffin v. United States (1895)<ref>https://www.law.cornell.edu/supremecourt/text/156/432</ref>, the Court famously stated that the presumption of innocence is axiomatic and elementary. According to the New York Family Court Act, this principle applies even in juvenile cases and should never be bypassed without oversight. | ||
Yet the DMCA bypasses due process entirely. Content is removed immediately upon complaint, without trial, without judicial scrutiny, and without any neutral evaluation. The accused is not presumed innocent but treated as a violator by default. There is no adversarial procedure, no verification of facts, and often no way to respond without waiving privacy and assuming legal risk. | Yet the DMCA bypasses due process entirely. Content is removed immediately upon complaint, without trial, without judicial scrutiny, and without any neutral evaluation. The accused is not presumed innocent but treated as a violator by default. There is no adversarial procedure, no verification of facts, and often no way to respond without waiving privacy and assuming legal risk. | ||
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By treating non-American users as if they were under US law, the DMCA extends far beyond its national scope. It imposes a foreign legal system on the entire internet, without legal standing or democratic legitimacy in most affected countries. | By treating non-American users as if they were under US law, the DMCA extends far beyond its national scope. It imposes a foreign legal system on the entire internet, without legal standing or democratic legitimacy in most affected countries. | ||
==Example: | == Example 1: National licenses overridden by global enforcement == | ||
The global reach of the DMCA does not only suppress individual rights. It also overrides national legal frameworks that are supposed to authorize the lawful use of copyrighted content. | The global reach of the DMCA does not only suppress individual rights. It also overrides national legal frameworks that are supposed to authorize the lawful use of copyrighted content. | ||
In France, web broadcasters are required to pay licensing fees to SACEM, the official agency representing authors, composers and publishers. A station | In France, web broadcasters are required to pay licensing fees to SACEM (Society of Authors, Composers and Publishers of Music), the official agency representing authors, composers and publishers. A small French station such as "House Station Live .com" may fully comply with SACEM licensing requirements by paying the appropriate fees, which grant the right to broadcast copyrighted music on the internet worldwide. The SACEM license is not restricted to national territory. It is designed for global web distribution, taking into account the cross-border nature of online access. | ||
But this legal authorization becomes useless the moment the content is hosted on a platform based in the United States. Services such as YouTube, Twitch or SoundCloud operate under US law. They do not recognize foreign licenses like those issued by SACEM. Instead, they rely on the DMCA to manage copyright enforcement through automated systems. A perfectly legal French broadcast can be removed or muted as if it were a case of piracy. | But this legal authorization becomes useless the moment the content is hosted on a platform based in the United States. Services such as YouTube, Twitch or SoundCloud operate under US law. They do not recognize foreign licenses like those issued by SACEM. Instead, they rely on the DMCA to manage copyright enforcement through automated systems. A perfectly legal French broadcast can be removed or muted as if it were a case of piracy. | ||
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This is not a misunderstanding between systems. It is a power grab. The DMCA functions online as if it were the only copyright law that matters. It cancels foreign authorizations automatically, without legal standing outside the US and without being challenged by any authority. The user ends up paying for a right that is ignored in most online contexts, and has no meaningful way to enforce it. | This is not a misunderstanding between systems. It is a power grab. The DMCA functions online as if it were the only copyright law that matters. It cancels foreign authorizations automatically, without legal standing outside the US and without being challenged by any authority. The user ends up paying for a right that is ignored in most online contexts, and has no meaningful way to enforce it. | ||
==Example: Fair use and automated retaliation== | ==Example 2: Fair use and automated retaliation== | ||
An American freelance content creator uploads a reaction video after a Formula 1 race. In his analysis, he includes a five-second clip of a key moment from the broadcast. The excerpt is used under the rules of fair use. It is not monetized directly, and it appears in a clearly transformative and critical context, which is protected by US copyright law. | An American freelance content creator uploads a reaction video after a Formula 1 race. In his analysis, he includes a five-second clip of a key moment from the broadcast. The excerpt is used under the rules of fair use. It is not monetized directly, and it appears in a clearly transformative and critical context, which is protected by US copyright law. | ||
Despite this, the video is flagged and removed within minutes by an automated system operated by the rights holder. The creator receives a copyright strike. His | Despite this, the video is flagged and removed within minutes by an automated system operated by the rights holder. The creator receives a copyright strike. If it is his third, the channel is terminated automatically. His income disappears overnight. He loses access to his platform, his content, and his audience. With no way to earn money, he can no longer pay his rent, buy food, or cover basic expenses. '''<u>There are no clients to contact or recover. The entire business collapses instantly. All of this happens because of five seconds of footage used legally</u>'''. | ||
There is no review process. No human being examines the case. The decision is made by an automated system trained to match pixels and audio patterns, without considering the legal context. The company that issued the takedown is based overseas. If the creator wants to contest the strike, he must submit personal information, accept legal liability, and prepare to defend himself in a foreign jurisdiction. | There is no review process. No human being examines the case. The decision is made by an automated system trained to match pixels and audio patterns, without considering the legal context. The company that issued the takedown is based overseas. If the creator wants to contest the strike, he must submit personal information, accept legal liability, and prepare to defend himself in a foreign jurisdiction. | ||
Hiring a lawyer involves not just legal fees | Hiring a lawyer involves not just legal fees. It may also require booking a flight, for example from Florida to California, which is over 5,000 kilometers. If the accused is from another country, an interpreter may also be needed. He must navigate a legal system he has never dealt with. All of this happens only to defend the right of fair use, a right that should have protected him from the very beginning. | ||
This is how the DMCA handles fair use. It is not treated as a right but as an exception you have to defend manually, at your own risk and cost, with no guarantee that anyone will listen. | This is how the DMCA handles fair use. It is not treated as a right but as an exception you have to defend manually, at your own risk and cost, with no guarantee that anyone will listen. | ||
<blockquote>'''Section 512(c)(1)(C) of the DMCA''': "Upon notification of claimed infringement [...] the service provider shall respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."</blockquote>This clause requires platforms to take down content quickly when they receive a complaint. However, it does not require them to restore the content after a dispute is filed. The law protects platforms only if they remove the content, which gives them a strong incentive to delete first and ask questions later. This one-sided structure undermines the presumption of innocence and forces users to prove their legitimacy after the damage is already done. | |||
It is worth noting that '''<u>when this provision was written in 1998, most US lawmakers likely did not even have home internet access. The internet was not yet a global platform for mass publication and individual expression</u>'''. The DMCA was conceived to regulate the distribution of pirated software and physical media, not to moderate billions of user-generated posts on real-time content-sharing platforms. Its current application represents a distortion of the original intent, repurposed to control a digital ecosystem that did not exist when the law was passed. What is wrong with this framework is its outdated nature. | |||
==References== | ==References== | ||