from the notice-and-takedown-is-broken dept
The DMCA has plenty of problems, but one of the more ridiculous is the whole concept of the "notice and takedown" procedure that service providers need to follow. Basically, if a copyright holder feels that its copyright is being infringed, it sends a DMCA notice to the service provider. In order for that service provider to keep its safe harbors that protect it from being liable for the content, the content has to be quickly taken down. At that point, the user can file a counternotice, but there's an extended period of time during which the service provider can consider the counternotice and decide whether or not to put the content back up. The reason it's set up this way is because the content companies who were pushing for the law convinced Congress that copyright violations online could be so damaging that content needed to be taken down immediately to prevent any "harm." The only "concession" to the fact that this process was likely to be abused was that filing a false takedown notice can get you in trouble as well. However, the process is still regularly abused to stifle speech.
Take for example, the latest example, presented by the EFF, who notes that Fox News has used the DMCA takedown process to pull down three clips from Fox News that were being used by a group called Progress Illinois who was using the videos as part of commentary on current events -- a common and valid fair use of content. However, since YouTube had to quickly pull down the videos and is now taking time to review the counternotification, it makes it nearly impossible for Progress Illinois to use the videos in a timely manner.
This is yet another example of how copyright is used to stifle free speech. This isn't just about "protecting" content or creating incentive to create more content. There's no commercial loss to Fox News to allow these videos to be used in this way. Forcing the immediate takedown serves only one purpose: to stifle free speech. In fact, you could make a decent argument that the DMCA violates the First Amendment with this policy (you know, "Congress shall make no law... abridging the freedom of speech...."). Given the seriousness of how such a process can stifle free speech, it's difficult to come up with a compelling reason why the DMCA shouldn't at least allow a "notice and notice" procedure, whereby the user accused of infringement is at least given a chance to respond before the content is taken down.
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