In the wake of the DMCA takedown notice that forced Cryptome offline
, the EFF is pointing out yet another massive in with the DMCA's notice-and-takedown setup: it leads to a ton of collateral damage
in getting legitimate, authorized, non-infringing content blocked by overzealous takedowns. Obviously, there are lots of cases of false takedowns or where there's a fair use argument -- but even if we assume that (in this example) Microsoft's DMCA was justified, the fact that the entire site got forced offline should be seen as a major problem with the DMCA:
This illustrates a basic problem built into the DMCA safe harbors. Microsoft's notice targeted just one document. Network Solutions, however, couldn't take down that single document, so opted to take down the entire site. Thus, although Cryptome's beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome's posting was protected by the fair use doctrine). Because Network Solutions wasn't willing to take that small risk, a whole lot of speech was temporarily disappeared.
As the EFF notes, this happens because the notice and takedown process lets copyright holders go after "the weak link" by moving further and further upstream to find a player in the chain who will take down the content, even if it means taking down much more:
Copyright owners reach out to a "weak link," the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit--even if the service provider knows it will win--is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of "innocent bystander" customers.
The EFF also follows this up with a list of ways that upstream service providers should
react to such DMCA notices, and suggests that customers seek out service providers who will follow that course of action. Of course, the better solution would be to fix the DMCA, but that doesn't seem likely any time soon.