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Comment by SpelingBeeChamp | Hacker News Reader

Your understanding is correct, but how does that relates to my point about compelled speech?

You won't be on the hook for a DMCA violation if you give up the right to control what's on your website?

If you don't post this thing on your website [read: restore the content], you are violating the law?

If YouTube didn't have you agree to TOS before uploading a video, you may have a point here. In it's current state though, YouTube has carte-blanche permission to remove anything they want, not just disagreeable content. The concept of free speech does not give you the ability to renegotiate service agreements, unfortunately.

My point is that in some cases, the DMCA appears to require OSPs (YouTube, in this case) to restore content that has been the subject of a DMCA takedown.

I don't see how that is compatible with the idea that YouTube has the right to not host content on their website. It's their website. How can a counter-notification take away - even for an instant - YouTube's right to control what's on YouTube?

They can certainly demand it, but there's no recourse if Google simply says they don't want to host it. Nobody is guaranteed a spot on YouTube by the first amendment, and DMCA doesn't override the pre-existing precedents of contract law. If they truly demand a restoration of removed content, then they are free to do so with servers that they pay for.

Conversely then, how does the DMCA not violate the first amendment by silencing speech? Is there actually any difference in the direction of application of this regulation?

The DMCA takedown system is an exemption to copyright law; violate it, and you lose its safe harbor and go back under ordinary copyright law. Copyright law does not violate the First Amendment because the Constitution specifically allows for it:

> To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

and the First Amendment does not override it; it is specifically worded "Congress shall make no law".

The Copyright Clause is also specifically worded. " The Congress shall have Power To..."

The first Amendment absolutely overrides it. That's what an "Amendment" is.

Reproducing a copyrighted work beyond Fair Use is not "speech".

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