Looking for Fair Use in the DMCA's Safety Dance

Abstract

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. This Article puts forth a "fair-use friendly" way of reading the DMCA to better protect users of online services. This Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech.

Keywords: Cyberlaw, intellectual property, fair use, copyright, legislation, statutory interpretation, civil procedure, DMCA, Digital Millennium Copyright Act, 512, intermediary liability, take-down, takedown, counter-notice, counter-notification, counternotice, Lenz, McCain, Ashcroft