Vosburg V. Putney, Leg Amputations, And The Overly-Censorial DMCA Notice

There was a case I remember reading in law school, about intentional torts, that stuck with me, for reasons that will probably be obvious once I tell you about it here.

But first a word about what we mean by the policy building block “intentional torts.” In general, torts are laws that help people be compensated for harms others cause them, and intentional torts are a particular species of them. They are also a finite species, because (as we will see) liability for intentional torts can kick in a little more easily than liability for negligence-based torts can, and there are consequences to being able to make liability trigger too easily. So while with negligence liability can trigger if people weren’t as careful as they should have been in doing whatever they did, with intentional torts we instead look only at whether the defendant had intended to do the act that caused the harm, regardless of how carefully they did it. Since people often intend to do the things they do, we therefore limit intentional tort liability to only a small, defined set of things that a person may have done so that people can’t suddenly find themselves potentially liable for absolutely everything they do.

One of those things that people can get in trouble for doing is battery (we also sometimes call this “assault,” which technically is different from battery, but not in a way that makes a difference for this story). Battery is basically the unwanted touching of another person without their consent. Because it’s an intentional tort (it also can be considered a crime, but such criminal offenses are handled in a different way also not relevant to this story) it doesn’t matter how careful you were in touching the other person; instead, no touching of a person without their consent is ok, so long as you had the intent to do that touching (accidental touching would therefore not create liability the same way, even if it hurt someone, because you had not intended to do it).

With that background, we now return to the tragic case of Vosburg v. Putney. In this case, two kids were sitting in a classroom, and one tried to get the attention of the other by lightly tapping his leg with this foot (behold, an intentional and non-consensual touching). Next thing you know, the kid whose leg was tapped starts screaming in pain. He’s rushed to the doctor and it turns out the tapping aggravated a case of (what likely was) bone sepsis such that his leg had to be amputated. His family then sues the family of the kid who had tapped him for damages.

The facts of this case are briefly as follows: The plaintiff was about fourteen years of age, and the defendant about eleven years of age. On the 20th day of February, 1889, they were sitting opposite to each other across an aisle in the high school of the village of Waukesha. The defendant reached across the aisle with his foot, and hit with his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a few moments he felt a violent pain in that place, which caused him to cry out loudly. The next day he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr. Bacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to see him the next day, on the 25th. There was a slight discoloration of the skin entirely over the inner surface of the tibia an inch below the bend of the knee. The doctor applied fomentations, and gave him anodynes to quiet the pain. This treatment was continued, and the swelling so increased by the 5th day of March that counsel was called, and on the 8th of March an operation was performed on the limb by making an incision, and a moderate amount of pus escaped. A drainage tube was inserted, and an iodoform dressing put on. On the sixth day after this, another incision was made to the bone, and it was found that destruction was going on in the bone, and so it has continued exfoliating pieces of bone. He will never recover the use of his limb. There were black and blue spots on the shin bone, indicating that there had been a blow. On the 1st day of January before, the plaintiff received an injury just above the knee of the same leg by coasting, which appeared to be healing up and drying down at the time of the last injury. The theory of at least one of the medical witnesses was that the limb was in a diseased condition when this touch or kick was given, caused by microbes entering in through the wound above the knee, and which were revivified by the touch, and that the touch was the exciting or remote cause of the destruction of the bone, or of the plaintiff’s injury. It does not appear that there was any visible mark made or left by this touch or kick of the defendant’s foot, or any appearance of injury until the black and blue spots were discovered by the physician several days afterwards, and then there were more spots than one. There was no proof of any other hurt, and the medical testimony seems to have been agreed that this touch or kick was the exciting cause of the injury to the plaintiff. The jury rendered a verdict for the plaintiff of $ 2,800.

The defense is bewildered. All the kid did was tap the leg! It was a harmless little tap! How can he be held responsible for the other kid losing his leg?

And yet the defense was held liable, because when it comes to intentional torts, liability comes down to whether you meant to do the thing you did, not whether you meant the harm that resulted.

The cause would seem to be very slight for so great and serious a consequence. And yet the plaintiff’s limb might have been in just that condition when such a slight blow would excite and cause such a result, according to the medical testimony. That there is great uncertainty about the case cannot be denied. But perfect certainty is not required. It is sufficient that it is the opinion of the medical witnesses that such a cause even might produce such a result under the peculiar circumstances, and that the jury had the right to find, from the evidence and reasonable inferences therefrom, that it did.

And in the big picture, such a rule can make sense, because a harm has occurred, and the long-standing premise behind intentional torts is that it isn’t fair for victims to have to bear the cost of that harm when the reason it accrued was because of something else another had intended to do (and did). Here, of course the tapping kid never meant for this particular harm to have occurred (his friend losing his leg). But he did mean to do the thing that caused the harm (the tapping). With intentional torts we don’t condition liability to the intent to produce a harm, just that there was a harm, thanks to an act the defendant had intended to do that is covered by one of those intentional torts (here, non-consensual touching). If we didn’t do things this way (and had not allowed recovery in this case), it would have effectively announced to victims of battery that they would be out of luck if they somehow ended up more or less hurt when others hit them than their batterer intended for them to be hurt. And the upshot would be to basically invite people to wander around hitting others, since they might never be held to account for it unless they specifically had intended to cause the degree of injury that resulted. “Too bad about your bloody nose, because I only meant to give you a bruise” should not be a defense, and that’s why liability for these sorts of intentional torts is keyed instead to the intent of behind the act and not the resulting harm.

Unfortunately, however, such cavalier indifference to the specific consequences of one’s acts appears to be an actual defense when it comes to copyright, and that’s a problem.

As I explain why I should, of course, note that I am mixing up apples and oranges here, because copyright and intentional torts are areas of law that live in their own universes. And one needs to be extremely careful in mixing up notions of tort law with other areas of law, particularly when trying to potentially apply it in the context of information technology. Sometimes it absolutely does not belong in the regulatory conversation, particularly when tort liability would have the effect of itself impinging on expression. And sometimes we need for tort law not belong, more practically, because tort law (including intentional torts) is a creature of state law, and the Internet is an interstate technology for which pre-empting state law can be critically important so as not to let the Internet accidentally be crushed by potentially unlimited and contradictory state regulation. (This concern is why we argue so strongly in favor of the pre-emption provision of Section 230.)

As it turns out, copyright law (including Section 512 of the Digital Millennium Copyright Act) has been found to pre-empt state laws that might otherwise bear on copyright law’s reach, including, as we will see, intentional torts. While on one level this pre-emption may make sense because copyright law is a right that exists nationally and thus needs to be treated the same in every state, the problem is that when we remove tort law from the regulatory conversation we sometimes change the policy balance it otherwise helped strike, and in unanticipated ways. As has happened here, as intentional torts have given way to the terms and provisions of the DMCA.

Obviously we’re not talking about intentional torts like assault or battery here but other sorts of intentional torts, such as intentional interference with contract. Many jurisdictions have historically allowed claims for various forms of intentional interference because public policy generally has not liked for people to be able to wander around upending others’ affairs any more than it has liked people to be able to wander around doing physical violence. So torts like these have historically emerged to deter such behavior, where real harm could result from the intentional acts of others.

Which returns us to the DMCA, which not only fails to effectively discourage such intentional meddling, but has outright invited it thanks to the flood of invalid takedown notices its provisions have unleashed. Which is why the Vosburg case came to mind a few months ago after reading about the takedown notice that wrongfully took down the Intercept article about the Little Rock police department’s abuse out of the Google search engine. It may have been a small thing that the sender did to include that single URL in its takedown demand, but the result of this intentional inclusion was to cut off someone else’s expression from the public, and that is a real, serious, cognizable injury. And even if the takedown sender never intended to have this particular author’s article suppressed the sender did intend to send a takedown notice demanding its removal, which then caused such a harm.

And this wrongful takedown is hardly an isolated incident. Wrongful takedowns are hardly exceptional; this plague of prior restraint strikes all the time – see for instance this fairly hot-off-the-presses story of someone whose car was wrecked by a stupid stunt driver having his video about the incident deliberately targeted for removal by the stupid stunt driver for the purpose of silencing his complaint about the wreck, which the driver had effected by sending a meritless takedown demand to the platform his victim was using to host his video. But whether the censorial harm from the wrongful DMCA takedown notice was deliberately intended, like in the case of the stunt video, or not necessarily directly intended, as perhaps was the case with the Little Rock article, significant censorial harm has still accrued, and all as a result of intentional acts, including the sort interfering intentional acts that tort law has historically helped deter – but can’t here, because courts have found that sending a wrongful takedown cannot qualify as an intentional tort, because the DMCA, as a creature of federal copyright law, pre-empts them.

In theory the DMCA is supposed to instead provide its own remedy for wrongful takedown notices, with the provision at Section 512(f). And from time to time that statutory language helps a tiny little bit to right such censorial wrongs, but ever since the Lenz “dancing baby” case, this provision has been largely toothless, thanks to the Ninth Circuit having read into the statute extra words that mute any significant deterring effect Section 512(f) might have had. As a result, few takedown senders are actually deterred from sending bad takedown notices, because there’s simply no consequence to them if they do. None via the DMCA, and none via state tort law, which the DMCA now renders inapplicable.

Thus we have left people vulnerable to very real injuries without any hope of legal remedies, and practically no deterrence to those who would hurt them, who are now basically invited to send their bad takedown notices with abandon since they are so unlikely to ever have to pay for the harm that they cause. Such a state of affairs is a far cry from the traditional legal world we used to live in, which the Vosburg case highlighted. Tort law evolved over the decades and centuries to give us a legal framework that can support our modern notion of equity and fair play. In general, as a society, we just don’t think it’s fair for someone to be able to hurt another without being liable for the harm their action caused, and so tort law evolved as a tool to help restore balance. Yet because we have now cast aside its restorative help, with no effective replacement, we have not just abandoned important legal tools but the equitable principles such legal doctrines once stood for.

Of course, sometimes there may indeed be very real reasons to revisit tort doctrines, and sometimes we indeed have, such as when imposing tort liability too easily would chill behaviors we’d also like to be able to see happen more freely, particularly expressive ones. (Such thinking bears a bit on why we have something like the Section 230, because we want to not have the expressive benefits of Internet intermediaries be chilled by the threat of liability, although Section 230 itself is only about the rules for when liability may be shared with third parties and not about any exception to traditional rules of direct tort liability, as this discussion is about.) It is perfectly reasonable to choose to override that historical trend when traditional tort liability doctrine no longer serves our public policy interests as well as a new legal regime might.

But such is not the case with copyright. There is no legitimate, or constitutional, policy benefit to allowing people to obliterate the lawful speech of others, let alone so unaccountably. On the contrary, the sending of an illegitimate takedown notice is an entirely volitional, discretionary act that causes real harm, and it’s weird that we would not impose liability for these sorts of volitional, discretionary acts as we normally would for other such intentionally interfering actions. Especially when pre-emptively overriding the intentional tort regime has the effect of overtly damaging free expression. The fear that sometimes arises, like in the Section 230 context, that mixing up tort law with expression might potentially interfere with the expression, isn’t present in these cases; rather, here we have a situation where tort law as we’ve historically understood it would actually protect expression, and certainly far better than the alternative legal regime we replaced it with does, which is hardly at all.

And that’s a huge problem, because if that’s what copyright law, via the DMCA, is going to do – supplant long-standing tort laws – then it needs to do what state law cannot anymore and provide its own practical and effective remedies so that people who are wrongfully victimized by these sorts of intentional actions by another can reliably be made whole again. We aren’t in one of those situations where we’ve left behind tort law for good reason, and where new legal regimes can be fairly seen as more effective tools for meeting our policy goals. Far from being a more effective tool, copyright law is instead only encouraging even more wrongful injury.

As Congress considers revisiting the DMCA, reconciling it with our traditional norms of fair play and equability should be one of its highest priorities, especially when the cost of it being as out of step as it has been is so high.