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Comment by greglindahl | Hacker News Reader

Search engines only show what's posted by other people, so while they're a convenient target, they aren't the actual bad actor.

Our legal system tends to attack actual bad actors, not convenient targets. Unless the Internet is involved. The way RTBF and DMCA work, search engines bear 100% of the cost, and people don't ever go after the actual bad actors.

By the way, in the US, if Tabloid X publishes Eric's photo, that's 100% legal thanks to the First Amendment, as long as the photographer agrees. Eric has no part. Attacking search engines on behalf of Eric, in the US, not so cool. Europe doesn't have free speech, so, no problem.

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> Europe doesn't have free speech, so, no problem.

Europe definitely has free speech (all the countries I know of anyway, Europe has a lot of different countries). There is just a different definition of what exactly is free speech and what is something else (some racist things are not considered free speech).

RTBF is Europe-wide, you have courts that make precedents like that which are Europe-wide even though Europe has a lot of different countries.

And sure, I'm sure you'd call what you have free speech. But that's not the way the US defines it.

> RTBF is Europe-wide

Nope it's not, it's an EU law and EU !== Europe. Europe has 51 countries while the EU only has 28. Just like Mexico is not in the US, a ton of European countries are not in the EU.

> The way RTBF and DMCA work, search engines bear 100% of the cost, and people don't ever go after the actual bad actors.

RBTF, maybe, but how is the DMCA this way? Certainly not the takedown notice/counternotice provision, which doesn't create new liability, only a special shield from any pre-existing liability.

> how is the DMCA this way? Certainly not the takedown notice/counternotice provision, which doesn't create new liability, only a special shield from any pre-existing liability.

The problem is that the shield has value to the search engine in excess of the cost to the search engine (but not the cost to the censorship victim) of removing the information. It reduces their risk, even when the risk is low because they would be likely to win, and removes the cost of having to litigate the issue even if they do win, so the search engine takes the deal and then executes ~all the notices even when they're bogus.

Which is a direct cost to the censorship victim compared to handling it the way Section 230 does it, and an indirect cost to the search engine because it has them paying to process the removal of legitimate information and reduces the value of their service to customers -- just not enough of an indirect cost to give them the incentive to refuse, because the brunt of the cost is on the third party being censored.

The DMCA causes huge costs for search engines because of all of the bogus takedowns, which people can send without any consequences. Congress could fix that aspect of the law, but has chosen not to.

> The DMCA causes huge costs for search engines because of all of the bogus takedowns

The search engine could ignore all takedowns and be in exactly the same situation as it would be without the DMCA; the safe harbor provision isn't a mandate on them, it is a benefit to them. They deal with takedowns because the cost of doing so is less than the cost of copyright liability they would have without the DMCA, which means the DMCA is saving them money, not imposing a cost.

Er, ok, I formed my opinion as to the relative liability cost as the executive in charge of DMCA of a search engine that raised $63mm. I dislike appeals to authority on HN as much as the next person, but you sure seem confident at knowing something about small search engines that only a small number of people actually have experience with.

And if you've never gotten a DMCA takedown from Perfect 10, you probably don't understand the true terror of the DMCA process.

> The search engine could ignore all takedowns and be in exactly the same situation as it would be without the DMCA; the safe harbor provision isn't a mandate on them, it is a benefit to them. They deal with takedowns because the cost of doing so is less than the cost of copyright liability they would have without the DMCA, which means the DMCA is saving them money, not imposing a cost.

You're treating the safe harbor and notice and takedown as indivisible when they obviously aren't. Conditioning the safe harbor on notice and takedown is a huge cost compared to the alternative used in CDA 230.

> You're treating the safe harbor and notice and takedown as indivisible when they obviously aren't.

They obviously are both part of the DMCA, so you can't say that the DMCA imposes costs based on the notice and takedown condition for the safe harbor, because ignoring that condition leaves the host in the same position they would be in without the DMCA.

You can say that the notice and takedown requirement reduces the cost savings of the safe harbor compared to the hypothetical policy of an unconditional safe harbor, or one with alternative sets of conditions, but that's a very different claim than the DMCA imposing costs.

> They obviously are both part of the DMCA, so you can't say that the DMCA imposes costs based on the notice and takedown condition for the safe harbor, because ignoring that condition leaves the host in the same position they would be in without the DMCA.

The safe harbor and the anti-circumvention rules are both part of the DMCA too, but it's silly to argue that the anti-circumvention rules don't impose net costs because if you average them together with the safe harbor it comes out somewhere near neutral. They don't cease to be divisible just because they were enacted at the same time. Otherwise you could justify anything by just finding something which is as good as the target thing is bad and lumping them together on the same side of the scale.

>Europe doesn't have free speech, so, no problem.

Just because hate speech isn't protected doesn't mean we don't have free speech.

Thanks for the downvotes, folks, it really encourages discussion!

> Europe doesn't have free speech, so, no problem.

No-where[1] has the US's extremist version of freedom of speech. Europe has a different form of free speech, and in this example Eric's right to be forgotton probably doesn't trump Someone's right to publish true information.

I guess there'd be some judicial attempt to balance these two rights: Does Eric pose a continuing risk to the public from drunk driving? Is Eric a public figure who's claimed to never have driven drunk? Was this a one off event that happened many years ago, never repeated? This would be something courts are able to decide.

https://en.wikipedia.org/wiki/Article_10_of_the_European_Con...

You missed my actual point, which is that the search engine is just showing what a website published. RTBF attacks the search engine in that case, not the actual website.

And you've missed the point that RTBF isn't automatic, and that it is balanced against the right for search engines to publish information.

With all of the cost pushed on the search engine. Which is a huge barrier to entry, yet Europe says it wants more search engines.

BTW, search engines don't "publish" information in the US sense of the word. The way Russia forces Yandex to self-censor is that Yandex is liable for everything they show to users. That's 'publishing' in the US sense. Newspapers have publishers, and the publisher is the person you sue if you think the newspaper has libeled you.

Meanwhile, Europe (mostly) doesn't consider RTBF to be censorship because it only involves censoring search engines and not newspapers. Except that people are filing RTBF against newspaper site search, too.

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