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:”

Keywords: DMCA, take down, repeat infringers policy, copyright, fair use

Suggested Citation

Reid, Amanda, Considering Fair Use: DMCA’s Take Down & Repeat Infringers Policies (March 7, 2019). 24 Communication Law & Policy (2019) DOI: 10.1080/10811680.2018.1551036, Available at SSRN: or

Amanda Reid (Contact Author)

UNC at Chapel Hill ( email )

Carroll Hall
Campus Box 3365
Chapel Hill, NC 27514-3365
United States
919.962.3037 (Phone)

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