Article On Notice And Takedown Under The Digital Millennium Copyright Act

Michael Bradford Patterson (University of Georgia School of Law) recently published an article entitled, To Speak, Perchance To Have A Dream: The Malicious Author And Orator Estate As A Critique Of The Digital Millennium Copyright Act’s Subversion Of The First Amendment In The Era Of Notice And Takedown, 22 J. Intell. Prop. L. 177-207 (2014). Provided below is an excerpt from the article:

Because estates have the potential to make great sums of money after the creator of the work is dead, they have a vested interest in keeping that work secure and profitable. The internet is still relatively young and has transformed the way that we transmit information and display our created works. It only makes sense, therefore, that there is a legal mechanism in place allowing rights holders to assert copyright claims over material posted online. However, the current system is one that encourages bad copyright claims by “malicious” estates, and chills free expression on the Web.Moreover, the DMCA’s notice and takedown system inherently fails to record how often these negative effects occur. The system, which pulls material off the Web, also disincentivizes content uploaders from fighting back or litigating a fair use defense against a copyright holder.Thus, many of the “chilling effects” are felt, even if not seen directly. However, the estate cases highlighted above are indicative of the underlying problem online as this Note will further discuss.