osewalrus (osewalrus) wrote,

Let's Go Crazy Over A Good Copyright Decision

A district court in California found that a copyright holder must consider whether a use is permissible before filing a DMCA notice and take down.

For me, the issue here is about cost shifting and abuse of discretion. The DMCA is supposed to be a balance between a right holder's concern that infringing material is being made available, requiring immediate take down to prevent further injury, and the right of the person posting the content, since the content may not infringe.

Because DMCA notice generally imposes no cost on copyright holders, it has been widely abused. DMCA notices get cranked out and most folks don't have the resources to challenge them. And people can suffer real economic harm by having their non-infringing websites taken down even for brief periods of time. Weighting this toward the rights holder also creates serious issues for time sensitive critical or political speech. OTOH, the argument is that the unsophisticated content holder will not risk sending a legitimate DMCA take down if the cost of doing so depends on a difficult legal judgment.

I've written on this subject before. My feeling here is that no system is perfect, and this one is very documentably out of whack in favor of rights holders making automated spurious claims and imposing serious costs on others. I think requiring them to do some due diligence first or risk paying costs is reasonable, even if it will ultimately prevent some meritorious suits.

Public policy is trade offs.

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