An interesting report on Chilling Effects and DMCA takedown use/abuse.
Copyright infringement on the Internet is a serious issue— distribution of valuable works can occur in a flash, and value may be difficult to recapture—and the idea of a simple, inexpensive process to handle takedowns is a beguiling one. But at what cost comes this benefit? Our data reveal an unfortunately high incidence of questionable uses of the process. Copyright questions are often very dependant on individual facts. Even a sophisticated and careful sender may send a notice with claims that should be reviewed by a court before the target’s material is removed. In many instances, questionable uses may be unintended: deeper investigation of individual notices reveals that some notice senders simply seem not to understand the parameters of copyright law, and why should they?
Copyright law is an especially complex, nuanced and fact-specific body of legal rules. A clear, rigid, ex ante process such as 512 seems mismatched with a body of law that derives much of its value from flexibility and nuance.Policy concerns related to questionable takedowns seem likely to increase in importance—however successful or problematic the process is, our data show that its use appears to be rising. Some notices are certainly sent in order to accomplish the paradigmatic goal of 512— the inexpensive takedown of clearly infringing hosted content or links to infringing web sites. But our data also show the process is commonly used for other purposes: to create leverage in a competitive marketplace, to protect rights not given by copyright (or perhaps any other law), and to stifle criticism, commentary and fair use.