Unfair Misuse: How Section 512 of the DMCA Allows Abuse of the Copyright Fair Use Doctrine and How to Fix It


Consider an upcoming election. The public engages in vigorous debate, online and off. Two weeks before the election, someone posts snippets of a politician’s manifesto on YouTube to illustrate the poster’s commentary. Upset, the politician issues a takedown notice to YouTube under § 512 of the Digital Millennium Copyright Act (hereinafter, “DMCA”), claiming the video violates his copyright. The politician demands that YouTube immediately take the post down. The candidate does not provide detailed justification, only selfserving and conclusory allegations. Even if both the candidate and the poster suspect that a judge would likely find the video to be protected under copyright’s well-established fair use doctrine,1Copyright Act of 1976, 17 U.S.C. § 107 (2012). See also Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, 24 HARV. J. L. & TECH. 171, 176 (2010). the candidate does not actually need to worry about whether the posting constitutes fair use – at least not for the next ten-to-fourteen days. This is because under § 512(g) of the DMCA, the candidate enjoys unprecedented power to require Online Service Providers (hereinafter “OSPs”) like YouTube to take down the posted material automatically and upon demand.2 Under the DMCA, the candidate may force the takedown of posted material for at least ten-to-fourteen days, regardless of the merits.3 Afraid of losing its safe harbor and of being sued for indirect copyright infringement, YouTube takes the video down. In exchange, YouTube gains immunity from secondary copyright infringement liability.4 This is the DMCA bargain; putative copyright holders suddenly become empowered to take down material they disapprove based only on an assertion that it violates their copyright. For their complicity, OSPs get legal immunity.

If the poster believes the material he or she posted constitutes fair use, the poster may issue a counter notice under § 512(g)(3) contesting the takedown. Unfortunately, by operation of DMCA law, the video must nevertheless stay offline for ten-to-fourteen days notwithstanding the counter notice.5 Ten-to-fourteen days later when the mandatory takedown period expires, the material is finally eligible for reposting. But now the election is over. Reposting is moot. Society’s right to engage in this valuable public discussion is forever lost. The mandatory ten-to-fourteen day waiting has effectively given the politician two weeks of free censorship.

In 1998, Congress established the “safe harbor” of § 512 of the DMCA.7 The safe harbor shields OSPs from secondary liability for copyright infringement for posts made “at the direction of a user” of an online service like YouTube, provided the OSP complies with certain statutory requirements.8 If the OSP fails to qualify for safe harbor protection, copyright infringement and liability are evaluated under traditional copyright law. The DMCA makes it clear that failing to qualify for a safe harbor does not limit any defenses a service provider may have.

The safe harbor benefits OSPs by shielding them from secondary liability for copyright infringement. It also benefits copyright holders by conferring upon them unprecedented power to force down all content they allege to be infringing, regardless of whether it actually infringes. The DMCA does not, however, adequately protect the legitimate interests of posters of online content against the automatic ten-to-fourteen day takedown power. This is because, under the DMCA, posters of online content are denied basic due process and protection for their non-infringing fair uses during this ten-to-fourteen day period. This article explains how the DMCA fails to sufficiently protect users’ rights by infringing on fair use and, consequently, chilling the academic, technical, commercial, political, and creative speech that makes the Internet so valuable.

This article proposes several much needed reforms to § 512, the core of which would be the removal of the automatic ten-to-fourteen day takedown period. This period results in an unnecessary prior restraint on fair use, without proof of copyright or a hearing on fair use. Adopting the amendments in this article will increase protection for fair use while continuing to protect copyright and maintaining OSP immunity from secondary liability for copyright infringement.