The following is Section II.B of the comment I submitted in the Copyright Office’s study on the operation of Section 512 of the copyright statute.
Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA’s potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content, the DMCA conditions its protection. And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.
In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.
Although some courts are now requiring takedown notice senders to consider whether the use of the content in question was fair, there is no real penalty for the sender if they get it wrong or don’t bother. Instead, service providers are forced to become judge and jury, even though (a) they lack the information needed to properly evaluate copyright infringement claims, (b) the sheer volume of takedowns notices often makes case-by-case evaluation of them impossible, and (c) it can be a bet-the-company decision if the service provider gets it wrong because their “error” may deny them the Safe Harbor and put them on the hook for infringement liability. Although there is both judicial and statutory recognition that service providers are not in the position to police user-supplied content for infringement, there must also be recognition that they are similarly not in the position to police for invalid takedowns. Yet they must, lest there be no effective check on these censorship demands.
Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user’s speech predicated on mere allegation. Mandatory injunctions are disfavored generally, and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful. To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.