What is it about?

To qualify for DMCA safe harbor protections, an ISP has both immediate and on-going requirements: (1) it must expeditiously respond to a copyright holder’s takedown notice, and (2) it must adopt a policy for terminating Internet access to repeat infringers. Federal courts have recently clarified some aspects of the safe harbor system, nevertheless other aspects remain hazy. In this haze, ISPs are incentivized to over-block and err on the side of removing content – including lawful content.

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Why is it important?

The asymmetry between copyright holders’ rights and remedies and users’ rights and remedies threatens socially valuable speech and creates a chilling effect for others. Moreover, the risk of extra-judicial termination of Internet access under a vague and variable repeat infringers policy threatens fundamental First Amendment interests.


This article proposes several policy changes that would harness fair use considerations to protect First Amendment interests in the digital sphere. Specifically, the calculus for sending takedown notices should be recalibrated. We certainly need takedown processes that protect copyright holders, but not at the expense of the public interest. To properly safeguard our civil liberties, the takedown process should be amended and should include added protections against improper account termination pursuant to repeat infringers policies. By curbing copyright overreach and minimizing the chilling, the potential for robust exchanges over new communication technologies can be fulfilled.

Dr. Amanda Reid
University of North Carolina at Chapel Hill Louis Round Wilson Special Collections Library

Read the Original

This page is a summary of: Considering Fair Use: DMCA’s Take Down & Repeat Infringers Policies, Communication Law and Policy, January 2019, Taylor & Francis, DOI: 10.1080/10811680.2018.1551036.
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