from the because-they-wrote-the-laws dept
So what can or should be done in those situations? At one point, some Brazilian officials had suggested effectively putting the public domain and fair use on par with copyright -- and thus equalizing the punishments for violating either. There is some poetic justice in such a setup. Given the insanity of today's statutory damages rates (which can lead to up to $150,000 for infringement of a single item), would it be reasonable to then say if you take down something incorrectly, you are opening yourselves up to similar damages?
Defenders of copyright would argue that's way too harsh, though they'd do so without any hint of realization that those penalties are way too harsh for today's infringement as well. Besides, they wouldn't have to worry if they only issue proper takedowns.
Of course, the problem with that is that you're effectively creating a "two wrongs" situation, rather than fixing the bad situation. You could argue that if you set it up so that the two sides had to be in lockstep, then that might actually encourage copyright holders to be more willing to come to the table to reduce statutory damages to more reasonable levels, though this also explains why they'd fight as hard as they could against any such proposal.
In the end, I really don't know what the proper response is -- but it does seem clear that the ability to falsely censor content online, thanks to the DMCA and bogus notices and automated systems, is a real problem that needs to be fixed.