Let's look at a typical case of an improper DMCA notice: the one CNN recently sent YouTube over a conservative web site's video that I think is a clear example of a non-infringing fair use. While I have my quibbles about the way YouTube handles such situations, and the DMCA is not perfect, I think virtually all of the blame should be directed at the party that sent the notice: CNN. Let me explain.
To do that, we need to step back more than a decade, to the dawn of the Internet era, as the relevant players were devising the rules that would govern this new world. One of the many issues to be addressed was this: under what circumstances -- if any -- should a host of material provided by a third party be held liable if that material infringes on a copyright owner's rights? Consider some of the options available to lawmakers as they drafted the law that would eventually be known as the Digital Millennium Copyright Act of 1998 (or, more precisely, the portion of the DMCA known as the "On-Line Copyright Infringement Liability Limitation Act"):
Option 1: Hosts are never liable. Under this option, if, say, someone posted an entire pre-release copy of Wolverine to YouTube, Fox would have no recourse whatsoever against YouTube. Fox could send YouTube an angry letter, demanding that YouTube remove the video, but YouTube could simply ignore the letter, safe in the knowledge that it would prevail in any copyright suit brought by Fox. Fox could theoretically sue the poster and get an injunction forcing him to ask YouTube to remove the video, but that person might be anonymous, or in Mongolia, or impossible to find, or even dead -- and thus it would be exceedingly difficult, expensive, time-consuming, and often impossible to go this route. This option would provide no practical way for copyright owners to vindicate their legitimate rights under the Copyright Act, and was properly rejected. (I should, however, point out that the "never liable" option is pretty much exactly the rule Congress adopted for non-copyright torts like libel. Under Section 230 of the Communications Decency Act, YouTube simply cannot be held liable for a libelous video posted by a third party, and cannot be ordered to remove it -- even after a court has definitively determined that it is indeed libelous.)
Option 2: Hosts are always liable. Under this option, YouTube would be automatically liable for copyright infringement as soon as someone posted Wolverine to the site. A quick response to a takedown notice from Fox might limit damages, but isn't a defense. What would be the result of such a rule? A site like YouTube (or Fox's corporate cousin MySpace and countless others) that hosts material provided by others without human pre-review would likely not exist. The volume of user-posted material is simply too great to permit human pre-review, and making the wrong call could result in a fatal damages award. "Always liable" is just as untenable as "never liable," and was properly rejected by Congress as well.
Option 3: Hosts are sometimes liable. The right solution, of course, involves balancing the legitimate interests of copyright owners against the benefits of sites that host user-posted material (benefits that accrue to both the sites and society at large). Sites that make reasonable efforts to combat copyright infringement are protected from ruinous lawsuits; sites that tolerate and profit from it, aren't. To be sure, the devil is in the details. In the DMCA, Congress set up a system (about 7 years before YouTube even existed) that says basically this: if a site registers with the Copyright Office, and promptly removes material upon receipt of an infringement notice from a copyright owner, and terminates the accounts of repeat infringers, and doesn't specifically know about and profit from infringement, then it won't be held liable for copyright infringement based on material provided by others. Like most legislation, the final result was an imperfect compromise, but the dirty little secret is that neither major copyright owners nor big hosts are eager to for a re-write, as they fear that any new law could turn out to be much worse than what we have today.
So back to the CNN video posted by "Founding Bloggers": Some claim that the DMCA forced CNN to remove the video. That is false. Don't take my word for it; here's what the House Commerce Committee DMCA Report (page 54) actually says:
The Committee emphasizes that new Section 512 does not specifically mandate use of a notice and take-down procedure.... [T]he service provider is free to refuse to ‘‘take down’’ the material or site—even after receiving a notification of claimed infringement from the copyright owner. In such a situation, the service provider’s liability, if any, will be decided without reference to new Section 512(c).(my emphasis). Well, say some as a fall-back, the DMCA may not technically require YouTube to take down videos whenever it gets a DMCA notice, but it provides a strong incentive to take down those videos, even when the DMCA notice is bogus -- which is just as bad. To which I respond: yes, there's a strong incentive to comply -- but compared to what? The DMCA did not invent the concept of a demand letter. Nor did it invent the concept of a bogus demand letter. Lawyers have been sending demand letters (both legitimate and bogus) for centuries -- probably millennia -- and they send them today in every area of law, not just copyright. And recipients often have a strong incentive to comply, even in the case of meritless demands, because it may be cheaper and less of a hassle than fighting. That's unfortunate, and the law has ways of addressing that, although often unsatisfactorily.
To further illustrate this point, imagine what the world would look like today if the DMCA had never been enacted. If Fox found a copy of Wolverine on YouTube, it would probably send an infringement notice -- it just wouldn't be called a "DMCA notice." And what would the law look like if the DMCA hadn't passed? Obviously this is speculation, but I think it would look pretty much like what we have today: a set of judge-created rules somewhere between "the host is always liable" and "the host is never liable." Hosts who cooperated with copyright owners in combating infringement would probably fare OK; hosts that tolerated and encouraged it, wouldn't. And that is just how the law was shaping up before the DMCA was enacted in 1998. See Religious Technology Center v. Netcom On-line Communications Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995). The safe-harbor provisions of the DMCA are indeed viewed as a codification of the Netcom decision; as the House Report (page 11) put it: "the [DMCA] bill essentially codifies the result in the leading and most thoughtful judicial decision to date: [Netcom]." (Admittedly, this oversimplifies things a bit; Netcom is more relevant to the 512(a) safe harbor for ISPs as opposed to the one in 512(c) for hosts like YouTube, but it remains true that, on the whole, Section 512, which contains the safe harbors, was much more a codification of existing law than a departure from it.)
I'm the first to admit the DMCA isn't perfect. For example, as to the counternotice process, I think the 10-14 business day re-posting window is too long (especially in certain circumstances), and I could come up with a few other tweaks. And -- though they are rare compared with the vast number of perfectly valid takedown notices -- bogus notices no doubt exist. They should be exposed; public shaming works wonders.
But the bottom line is that the DMCA is not the cause of bogus takedown notices, or takedowns themselves. Copyright owners who send bogus notices -- whether by ignorance or arrogance or overreaching or simply mistake -- are the ones at fault, and the ones who should be held responsible for their errors.
What about YouTube: do they bear blame for complying with a meritless notice like CNN's? I don't think so, or at least not very much. They're a big company, and they have every right to try to minimize their potential liability. (They are fighting off a billion-dollar copyright suit, after all.) YouTube provides a valuable service, to millions, for free; it's a bit churlish to look this gift horse too hard in the mouth. And, given the vast number of DMCA notices (again, the vast majority of which are valid) that YouTube receives, I have sympathy for their argument that it is impractical to have lawyers review each notice before determining whether to comply. However, the number of counternotices it receives is small. It would be practical for YouTube/Google lawyers to review each video that is subject to a counternotice, and, if they determine that the video is non-infringing (because, for example, it's a fair use), YouTube could re-post it right away, without waiting for the 10-14 business day window to close.
Even after more than 10 years of living with the DMCA, there's still a lot of uncertainty about what exactly it means, and who gets to benefit from its safe harbors. Viacom v. YouTube may bring some welcome clarification, if it results in a judicial opinion rather than settlement. But I do think we know enough to conclude that the sender -- and not the statute -- is the proper target of criticism when a bogus takedown notice results in a bogus takedown.