Considering Fair Use: DMCA’s Take Down & Repeat Infringers Policies
24 Communication Law & Policy (2019) DOI: 10.1080/10811680.2018.1551036
45 Pages Posted: 3 Apr 2019 Last revised: 5 Apr 2019
Date Written: March 7, 2019
Courts have recently clarified some aspects of the Digital Millennium Copyright Act safe harbor system, yet other aspects remain hazy. In this haze, ISPs are incentivized to over-block content, and copyright holders are allowed to give a narrow, subjective reading of a user’s fair use. Subjectively, copyright holders can, in good faith, hold objectively unreasonable views about fair use. The asymmetry between copyright holders’ rights and remedies and users’ rights and remedies threatens socially valuable speech and creates a chilling effect. And the risk of extra-judicial termination of Internet access under vague and variable repeat infringers policies threatens fundamental First Amendment interests. Policy changes are proposed to harness fair use considerations to protect First Amendment interests in the digital sphere. The calculus and consequence for sending takedown notices should be recalibrated. By curbing copyright overreach and minimizing the chilling effect, the potential for robust exchanges over new communication technologies can be realized.
Note: “This is an original manuscript/pre-print of an article published by Taylor & Francis in Communication Law and Policy on 07 Mar 2019, available at: http://www.tandfonline.com/10.1080/10811680.2018.1551036.”
Keywords: DMCA, take down, repeat infringers policy, copyright, fair use
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