User-driven websites — also known as online intermediaries — frequently come under fire for disabling user content due to bogus or illegitimate takedown notices. Facebook is at the center of the latest controversy involving a bogus takedown notice. On Thursday morning, the social networking site disabled Ars Technica’s page after receiving a DMCA takedown notice alleging the page contained copyright infringing material. While details about the claim remain unclear, given that Facebook restored Ars’s page yesterday evening, it’s a safe bet that the takedown notice was without merit.

Understandably, Ars Technica wasn’t exactly pleased that its Facebook page — one of its top sources of incoming traffic — was shut down for seemingly no good reason. Ars was particularly disappointed by how Facebook handled the situation. In an article posted yesterday (and updated throughout the day), Ars co-founder Ken Fisher and senior editor Jacqui Cheng chronicled their struggle in getting Facebook to simply discuss the situation with them and allow Ars to respond to the takedown notice.

Facebook took hours to respond to Ars’s initial inquiry, and didn’t provide a copy of takedown notice until the following day. Several other major tech websites, including ReadWriteWeb and TheNextWeb, also covered the issue, noting that Ars Technica is the latest in a series of websites to have suffered from their Facebook page being wrongly disabled. In a follow-up article posted today, Ars elaborated on what happened and offered some tips to Facebook on how it could have better handled the situation.

It’s totally fair to criticize how Facebook deals with content takedown requests. Ars is right that the company could certainly do a much better job of handling the process, and Facebook will hopefully re-evaluate its procedures in light of this widely publicized snafu. In calling out Facebook’s flawed approach to dealing with takedown requests, however, Ars Technica doesn’t do justice to the larger, more fundamental problem of bogus takedown notices.

As Mike Masnick explains on Techdirt, U.S. federal laws strongly discourage online intermediaries from trying to figure out if takedown notices are legitimate or not. If Facebook were to refuse to comply with a copyright takedown notice that subsequently turned out to be meritorious, it would lose its safe harbor provided for in 17 U.S.C. § 512(c). Should Facebook err in its judgment, therefore, it would potentially be on the hook for harsh copyright infringement penalties. In effect, the DMCA incentivizes what Masnick describes as “massive overreactions” by online intermediaries.

That’s not to say that there aren’t some simple steps Facebook could take to combat bogus takedown notices without exposing itself to additional liability, especially in “easy” cases, as Ars and others have argued. Verifying that takedown notices are associated with valid email addresses is one such step that Facebook apparently does not currently employ. Facebook could also be more responsive to users whose content has been disabled, at least when the content in question is highly visible.

Perhaps more importantly, Facebook should adopt a system for enabling users who believe their content has been wrongly disabled to file a counter notification. YouTube, for instance, has a slick online system that lets users challenge wrongful takedown requests. Under 17 U.S.C. § 512(g), an online service provider may restore previously-disabled content between 10 and 14 days after receipt of a valid counter notification if the content owner hasn’t initiated legal proceedings. It’s odd that Facebook hasn’t adopted an online counter notification system, especially given that service providers are shielded from liability if they respond to counter notices in accordance with section 512(g).

While it would be great if Facebook were to manually and thoroughly screen all user complaints and requests, expecting online intermediaries to pay for a live human being — say, an intellectual property lawyer or a paralegal — to vet the legal merits of each takedown notice is simply unreasonable. Facebook has more than 600 million active users, but a mere 2,000 or so employees (although that number may soon grow substantially). That’s over 300,000 users per employee!

And let’s not forget that Facebook is a free service. The company generated a scant $4 of revenue per user in 2010. Facebook’s going to have to do a much better job of monetizing its platform before we can reasonably expect it to vet legal requests on its users’ behalf. Even Google — with a head count and revenue more than ten times Facebook’s — is frequently chastised for not doing enough to identify bogus or otherwise invalid takedown notices. Based on some of the “horror stories” that have been reported recently, Ars Technica is lucky that Facebook restored its page within a day of its removal.

Even if Facebook improves its system, however, the underlying problem of bogus takedown notices is probably here to stay — that is, until Congress acts. Reopening the legislative debate over the DMCA is a risky gambit, but at least in theory, Congress could improve the statute by adopting some relatively minor tweaks.

First, the DMCA should do more to deter parties from filing invalid or bad faith DMCA takedown notices. Courts rarely punish parties for filing illegitimate takedown notices, as it is very difficult in practice to show  that a notice was filed in bad faith. All in all, the overwhelming majority of incidents of bogus takedown notices go unpunished, as I’ve discussed before on these pages.

Wendy Seltzer of Princeton’s Center for Information Technology Policy chronicled the chilling effects of DMCA takedown abuses in a recent Harvard Journal of Law & Technology article. She suggests a few legislative fixes to 17 U.S.C. § 512(f) to better balance the interests of users and rightsholders:

The law should require greater diligence: declarations on penalty of perjury to match those required by the respondent, and perhaps even a bond against erroneous claims. . . . Strengthening the counter-suit provisions could encourage a plaintiffs’ bar to take up these cases as private attorneys general. Stiffening the penalties against claimants who obtained takedowns through misrepresentation of infringement would encourage claimants to verify and support their claims of infringement or penalize them for failure to do so rather than allowing them to shift that burden to service providers and posters.

Congress should also create a safe harbor, notice-and-takedown system for online trademark infringement, as Elizabeth Levin has argued. While copyright takedown notices receive most of the attention in the IP debates, there’s no DMCA-esque process established in statute to provide for online intermediaries to disable and repost allegedly trademark-infringing content.

Five years ago this month, I penned a white paper on “Fact and Fiction in the Debate over Video Game Regulation” that I have been meaning to update ever since but just never seem to get around to it. One of the myths I aimed to debunk in the paper was the belief that most video games contain intense depictions of violence or sexuality.  This argument drives many of the crusades to regulate video games. In my old study, I aggregated several years worth of data about video game ratings and showed that the exact opposite was the case: the majority of games sold each year were rating “E” for everyone or “E10+” (Everyone 10 and over) by the Entertainment Software Rating Board (ESRB).

Thanks to this new article by Ars Technica‘s Ben Kuchera, we know that this trend continues. Kuchera reports that out of 1,638 games rated by the ESRB in 2010, only 5% were rated “M” for Mature. As a percentage of top sellers, the percentage of “M”-rated games is a bit higher, coming in at 29%. But that’s hardly surprising since there are always a few big “M”-rated titles that are the power-sellers among young adults each year.  Still, most of the best sellers don’t contain extreme violence or sexuality.

The primary criticism of these findings is that (1) violence is subjective and, therefore, (2) you can’t trust the industry to accurately rate it’s own content. Plus, (3) kids still see a lot of violent content, anyway.

Violence certain is subjective, as I’ve discussed here numerous times before. And it’s also true that the ESRB was created by the video game industry as a self-regulatory body to rate the content of games. That doesn’t mean the ratings are deceptive, however. Indeed, polls have generally shown parental satisfaction with the system, and when you compare ESRB ratings to independent rating schemes (like Common Sense Media’s) you see largely the same sort of labels and age warnings being affixed to various titles.  Sure, there are small differences at the margin, but they tend to be legitimately difficult cases (ex: how to rate a boxing game when the real-world equivalent is an actual sporting event that can be quite violent at times).

I’m never quite sure what to make of the third argument: that kids will still see a lot of violent games. If that’s true, is it the video game industry’s fault? Should no violent games be released because some kids might still find a way to see or play them? That’s an intolerable solution in a free society that treasures the First Amendment, of course.  Moreover, it really comes back to parental choice and responsibility.  When games cost $20 to $60 bucks a pop, it’s hard to even figure out how junior gets his hands on some of these games without Mom or Dad knowing. Moreover, even getting the game console into the house requires a significant outlay of cash, and even then, parents are prompted to set up parental controls when they get some of these devices. (All of them contain sophisticated controls but the initial configuration is slightly different on each).

In my opinion, the combination of the excellent ESRB ratings and the outstanding current generation console controls has resulted in one of the great user-empowerment success stories of modern times.  Parents have been given valuable information about games to make decisions regarding what is appropriate for their families and then also given the tools to take action on that information by establishing console settings in line with their household values. Sounds like an ideal state of affairs to me. And, better yet, as the data above illustrate, parents don’t even have to worry about most games being inappropriate for kids!

Now, excuse me while I get back to playing “Plants vs. Zombies” on the XBox with my kids!  What a great game that is. The whole family is loving it.

Nate Anderson of Ars Technica has posted an interview with Sen. Al Franken (D-MN) about Defining Internet “Freedom”. Neither Sen. Franken nor Mr. Anderson ever get around to defining that term in their exchange, but the clear implication from the piece is that “freedom” means freedom for the government to plan more and for policymakers to more closely monitor and control the Internet economy.  The clearest indication of this comes when Sen. Franken repeats the old saw that net neutrality regulation is “the First Amendment issue of our time.”

As a lover of liberty, I find this corruption of language and continued debasement of the term “freedom” to be extremely troubling. The thinking we see at work here reflects the ongoing effort by many cyber-progressives (or “cyber-collectivists,” as I prefer to call them) to redefine Internet freedom as liberation from the supposed tyranny of the marketplace and the corresponding empowerment of techno-cratic philosopher kings to guide us toward a more enlightened and noble state of affairs. We are asked to ignore our history lessons, which teach us that centralized planning and bureaucracy all too often lead to massively inefficient outcomes, myriad unforeseen unintended consequences, bureaucratic waste, and regulatory capture.  Instead, we are asked to believe that high-tech entrepreneurs are the true threat to human progress and liberty. They are cast as nefarious villains and their innovations, we are told, represent threats to our “freedom.” We even hear silly comparisons likening innovators like Apple to something out of George Orwell’s 1984. 

To be clear, I am not saying everything will be sunshine and roses in a free information marketplace. Mistakes will be made by those innovators and there will even be short-term spells of what many would regard as excessive corporate market power. The question is how much faith we should place in central planners, as opposed to evolutionary market forces, to solve that problem.  Those who truly love liberty and real human freedom would have more patience with competition and technological change and be willing to see how things play out. In other words, “market failures” and “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up responses than by coercive, top-down approaches.

The decisive advantage of the market-driven approach is nimbleness. It is during what some might regard as a market’s darkest hour when some of the most exciting disruptive technologies and innovations develop. People don’t sit still; they respond to incentives, including short spells of apparently excessive private power. But they can only do so if they are truly free from artificial constraint from government forces who, inevitably, are always one or two steps behind fast-moving technological developments. Thus, we shouldn’t allow the cyber-collectivists to sell us their version of “freedom” in which markets are instead constantly reshaped through incessant regulatory interventions. That isn’t freedom, it’s tyranny.

More insulting to me is the continued repetition of this balderdash about how Net neutrality is “the First Amendment issue of our time.”  As I’ve pointed out before here before in my essay on “Net Neutrality Regulation & the First Amendment,” the Internet’s First Amendment is the First Amendment, not some new, top-down, heavy-handed regulatory regime that puts Federal Communications Commission bureaucrats in control of the Digital Economy. America’s Founding Fathers intended the First Amendment to serve as a shield from government encroachment on our liberties, not as a sword for government to wield to reshape markets and speech according to the whims of five unelected bureaucrats at the FCC. Anyone who suggests otherwise is engaging in revisionist history of the highest order.

Sadly, however, countless people seem to buy into this twisted vision of “Internet freedom” today. They stand ready to empower the techno-planners, to call in the code cops, and to roll out the tech pork barrel in their invitation to Washington to give the Digital Economy a great big bear hug.

You can call this vision many things, but pro-freedom is not one of them.  As Berin Szoka and I have argued here in the past, true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest” — an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.

If you stand for liberty, the choice of which conception of “Net freedom” to embrace is simple.

ArsTechnica has a great write-up of WashingtonWatch.com’s earmarks project and a top earmark hunter, Andi Osiek.

Back from vacation and digging out, I will be furiously working over the weekend to check the data we collected, flag earmarks that made it into bills, and award the prizes to the top earmark hunters in the contest.

I’ve been blathering on about this week’s big Supreme Court decision in FCC v. Fox, [See Parts 1, 2, 3, 4, 5], so I thought I would just wrap this series of essays up with a collection of other articles and views on the decision in case readers are looking for alternative perspectives:

Mainstream Media Stories

• Associated Press
• Reuters
• New York Times (+ more analysis)
• Washington Post
• Wall Street Journal
• Legal Times
• TV Week
• Variety
• Kansas City Star
• USA Today
• Ars Technica

Conservative, Religious, & “Family” Groups

• Parents Television Council
• Common Sense Media
• Concerned Women for America
• Town Hall.com

Free Speech Advocates or Other Views

• The SCOTUS Blog
• Free Expression Policy Project (Marjorie Heins)
• ACLU
• Media Access Project (Andy Schwartzman)
• Center for Creative Voices in Media (Jonathan Rintels)
• First Amendment Center (David Hudson)
• Free State Foundation (Randy May)
• Michael Dorf
• Marc Randazza
• Reason’s Hit and Run
• Volokh Conspiracy (Eugene Volokh)
• TechDirt

Ars Technica has just posted the transcript of a friendly debate I recently engaged in with Harvard University law professor John Palfrey about the future of Section 230 of the Communications Decency Act and online liability more generally.  Our debate got started last fall, shortly after I penned a favorable review of John’s excellent new book (with Urs Gasser), Born Digital: Understanding the First Generation of Digital Natives.  [Listen to my podcast with John about it here.]  Although I enjoyed John’s book, I also raised some concerns about his call in the book to reopen and revise Section 230, specifically to address child safety concerns.  At the time, John and I were working together on the Berkman Center’s “Internet Safety Technical Task Force” and we decided to begin an e-mail exchange about the future of 230 and online liability norms more generally.  The result was the debate that Ars has just published.

In our exchange, I begin by asking John to more fully develop some statements and proposals he sets forth in Born Digital.  Specifically, he and co-author Urs Gasser argue that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.” They also suggest that “There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.” Specifically, the call for “strengthening private causes of action by clarifying that tort claims may be brought against online service providers when safety is at stake,” although they do not define those instances.

Using those proposals as a launching point for our discussion, I challenge John as follows:

I’m troubled by your proposals because I believe Section 230 has been crucial to the success of the Internet and the robust marketplace of online freedom of speech and expression. In many ways — whether intentional or not — Section 230 was the legal cornerstone that gave rise to many of the online freedoms we enjoy today. I fear that the proposal you have set forth could reverse that. It could lead to crushing liability for many online operators-and not just giants like MySpace or Facebook-that might not be able to absorb the litigation costs. Could you elaborate a bit more about your proposal and explain why you think the time has come to alter Section 230 and online liability norms?

And John does and then we go back-and-forth from there.  Again, you can read the whole exchange over at Ars.

It was a great pleasure to engage in this exchange with Prof. Palfrey and I look forward to what others have to say in response to our debate.  I am working on a longer paper looking broadly at the rising threats to Sec. 230 and the increasing calls for expanded online liability and middleman deputization.  I will use whatever feedback I get from this exchange to refine my paper and proposals.

I’m pleased and humbled to have been named one of the Ars Technica/Tech Policy Central “People to Watch” in 2009. Along with my opposition to the REAL ID national identification scheme, they cite my work opposing the E-Verify national worker background check system (which would ultimately require a national ID).

Considering how the economic stimulus bill may be a vehicle for mandating broader use of E-Verify, the first thing you might see from watching me in 2009 might be an angry and disappointed advocate for liberty.

Julian Sanchez will be liveblogging the election returns tonight – poor soul – for a new infotainment outlet: Ars Technica’s Law & Disorder blog (or journal, if you prefer). The inaugural post lays out what it’s about.

He’s as smart and informed as they come, Julian is, so you’d be well-served to keep one eye on Law & Disorder.