The Truth About DMCA Abuse and the CASE Act

The CASE Act Won’t Solve DMCA Abuse Problems

Supporters of the problematic CASE Act like to argue that the CASE Act will cure many problems that it won’t solve. Abuse of the DMCA silences critics and censors free speech, but the CASE Act will do absolutely nothing to address these problems. Here are just some of the reasons why the CASE Act doesn’t fix anything:

  1. The CASE Act will do nothing to stop automated notices, which have been found to have as much as a 33% error rate. 
  2. The CASE Act won’t stop copyright trolls, who actually want a legal proceeding to try to extort a settlement.
  3. It does not get falsely accused content back on the internet. Abusive notices will continue to keep content off the internet for 10-14 days after a counter-notice is filed. Just 10-14 days might as well be a lifetime for much content, permanently damaging a creator’s viability. This is censorship of legitimate non-infringing speech.
  4. It will do nothing to stop anticompetitive takedowns, as the goal of the sender is to have it down for a couple weeks, not to remedy a copyright infringement.
  5. It will do nothing to stop abuse of the DMCA to censor speech, because the abuser’s goal is to have the content down for a couple weeks, which is often the only timetable that matters.
  6. The bill’s proponents have argued that the CASE Act is actually good for alleged infringers. However, most of these proponents will opt-out of a CASE Act action if one is brought against them because they know it is not good for a defendant. It will be a waste of time for victims of abuse.
  7. Over 99% of copyright takedowns go unanswered with a counter-notice. Given that approximately one-third of takedowns are improper, the CASE Act does nothing to remedy why counter-notices are rarely filed to begin with. 
  8. Abuses by rightsholders on private DMCA-plus systems will continue. The threat of strikes and losing access to the platform is too great to risk for many online creators. 
  9. The amended language in the CASE Act allowing it to be used for DMCA abuse was not put in there to actually help. It was not discussed with anyone dealing with the impacts of DMCA abuse. Rather, it was cynically added to argue it was good for all sides of the debate. It is a false flag and does nothing to stop or help with abuse.

Examples of DMCA Abuse

A major music label sent a takedown notice on the Facebook live performance of a classical piece by Bach that was over 300 years old.

A video game developer sent a takedown notice on a critical review of a new game from the company.

A major cable news network sent a takedown notice on a YouTuber’s post-debate video before the livestream even happened, preventing him from hosting a video that night at all. 

After a Senator shot down a question from a cable news host, her team posted the interview to YouTube. However, the cable news network sent a takedown notice for the clip, preventing the Senator from sharing.

Amazon has had many instances of receiving takedown notices on books not violating copyright but rather to knock a competitor’s book off the top results, permanently harming the sales of the book.