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Online Disclosure Bill Raises Multiple Constitutional Concerns

An online disclosure bill aimed at stamping out piracy is raising a number of concerns including the potential free speech violations.
Kim Davies via Flickr
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After passing two committees without resistance a measure billed as online labeling is drawing stiff criticism.  That’s because the True Origin of Digital Goods Act appears to preempt federal copyright law.

Rep. Jeannette Nunez (R-Miami) says her bill is very straightforward.  It’s all about protecting consumers on the internet by requiring sites that disseminate commercial music and movies to share their identity and contact information.  

“This bill would require owners and operators of websites that deal in the electronic dissemination of commercial music or movies to disclose their true names, physical address, phone numbers or email on the websites in a location readily accessible to consumers,” Nunez says.

But critics of the measure are pulling no punches.

“We’re asking you to vote no on this bill because we believe it violates the First Amendment,” Michelle Richardson of the American Civil Liberties Union says.  “The First Amendment protects the right to speak anonymously.  The Supreme Court has been clear that anonymous speech is not a pernicious fraudulent practice.”

Dineen Wasylick with the Electronic Frontier Foundation echoes her sentiment, saying, “This compelled speech is in direct conflict with the longstanding principle that individuals have the right to speak anonymously.”

They argue requiring site operators to share their personal information could have a chilling effect on speech. 

The idea behind Nunez’s bill is that bad actors—people posting someone else’s material—won’t want share their information, and they’ll be less likely to do so if content owners can take them to court.  But Rep. Daryl Rouson (D-St. Petersburg) points out there’s already a system in place for taking down offending content.

The Digital Millennium Copyright Act, or DMCA, lays out a procedure for copyright holders to ask that their material be taken down from sites where they haven’t authorized it.  For instance, Taylor Swift’s official YouTube page has videos for her singles, but versions posted by others come up with no sound.  This is one of the new approaches YouTube has used in response to complaints under the DMCA. 

But in response to Rouson, Nunez is adamant her bill isn’t about copyright. 

“Representative Rouson,” she says, “that’s specific to copyright law.  This bill is specific to labeling and disclosures.”

And that’s sort of the problem. 

Although the bill doesn’t say anything about copyright specifically, its creates a new way to bring people to court for offenses that traditionally fall under the copyright statute.   Because that’s federal, Matt Schruers a lawyer with the Computer and Communications Industry Association, says it raises concerns of pre-emption.   

“The Constitution has already reserved in Article one, section eight, clause eight, the power to regulate intellectual property to the federal government,” Schruers says.   

“I will acknowledge that the bill is styled as a consumer protection statute,” he continues. “And in fact, the consumer confusion issues are traditionally reserved to the states.  But the bill mentions consumers infrequently, and there’s no requirement of confusion at all.”

Schruers warns that a proliferation of similar laws in other states would actually undermine the industry’s ability to respond to infringement claims.  

Many lawmakers who earlier promised Nunez their support wavered.  One voted against it.  One voted for it, but warned he wouldn’t be able to on the House floor unless major changes were made to scale the measure back.   

There’s no doubt Nunez’s bill is broad.  Take for instance the definition of commercial recording or audiovisual work.  It encompasses video or audio recorded not just for sale or rental but also for performance or exhibition to the public, and whether the content owner expects to make money on the recording doesn’t matter.  So, anything made for public distribution would qualify—including things like say political campaign ads. 

Up until an amendment added at Thursday’s final committee stop, Rep. Nunez’s own campaign site—which includes links to four of her campaign ads—would technically have violated the provisions of her law.  That’s because while it includes her name, phone number and email, it doesn’t include a physical address.