June 15, 2024

Intent Requirements in the State Super-DMCA Bills

Several readers point out that the state super-DMCA bills contain language requiring an “intent to harm or defraud a communications service”, and they suggest that such a requirement makes the bills less harmful than I had said yesterday.

I disagree, for two reasons.

First, although some of the offenses created by the bills do require an “intent to harm or defraud”, the part of the bills to which I objected yesterday does not contain such a requirement. All that is required in the way of intent is an intent to conceal the origin or destination of a communication – and that intent would be inferred, presumably, if somebody took an action that had the predictable effect of concealing origin or destination.

Second, even if such language did apply to the part of the bills under discussion, I would still be worried (though less so). “Intent to defraud” doesn’t bother me, but “intent to harm” does, given the danger that “harm” could be construed broadly. In a competitive marketplace, people often take legitimate actions that harm the interests of one competitor. If I switch my lunch beverage from Pepsi to Coke, that action could be said to harm Pepsi; but surely my intent to switch beverages does not belong in the same category as an attempt to defraud Pepsi.


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