Under the Digital Millennium Copyright Act, rightsholders have an easy way to take down online material they dislike: send a takedown notice to a website or an ISP. The target of the letter has the right to object by filing a counter-notice, but even if that happens, the targeted material must remain offline for 10 to 14 days before being reposted. If this restriction isn't followed, the ISP or website in question could lose its "safe harbor" from lawsuits.

This provision of the law means that the DMCA can be used to silence speech, even in cases where the material has not been found by a judge to be infringing. This was an issue with John McCain's presidential campaign, where news organizations filed takedowns with YouTube about several McCain clips which used their footage. Despite the urgency of the issue (the election was only weeks away), YouTube publicly refused to put the clips back up before the counter-notice window expired; it had the legal right to do so, but the company refused to expose itself to the liability.

According to a letter from YouTube lawyer Zahavah Levine, "The real problem here is individuals and entities that abuse the DMCA takedown process."

The fact that the law can so easily be used to shut down commentary and criticism without judicial oversight raises freedom-of-speech questions, and courts have generally looked askance on anything that slaps "prior restraint" on speech. Copyright scholar Wendy Seltzer, who runs the Chilling Effects clearinghouse and has targeted the NFL over its wide-ranging copyright notice, has been working on a paper (PDF) that makes this exact free speech argument. The draft paper has already been making the rounds of the copyright Twitterers and sites like Techdirt, so it's already being read in unpublished form.

In the paper, Seltzer argues that "federal law, through copyright and the DMCA, bears direct responsibility for the chilling restriction on online speech... Depriving speakers of opportunities for publication and dissemination can be tantamount to banning speech; pressuring distribution points can cut them off."

One of her key points is that the law gives rightsholders the power to demand takedowns, but copyright infringement is often unclear. "Copyright law and its fair use provisions, of course, are far from a bright line," she writes. "Many of the cases ISPs are called in to adjudicate pursuant to DMCA notices are fact-specific disputes even courts would be unable to decide on summary judgment."

Given the notorious difficulty of making such judgments, Seltzer believes that the DMCA gives too much power to those making the takedown requests. Through the safe harbor rules, ISPs and companies like YouTube have every incentive to remove content immediately, and most targets of takedowns don't bother to file counter-notices. The result: a cheap and easy way for companies (and even groups like Scientology) to have material removed from the Internet.

"The takedowns resulting from DMCA notifications bear many of the hallmarks of prior restraints on speech," she writes. "They are imposed to limit speech before any adjudication on the merits of the copyright claims. While takedowns are defected by private actors, the ISPs are acting 'in the shadow of the law,' motivated by the state action that established the DMCA. Government cannot insulate itself from responsibility for this abridgment of free speech by routing its influence through third-party ISPs."

Seltzer does admit that most takedown notices are not purposely designed to stifle criticism. "It is likely that many people posting copyrighted music or movie files in their entirety had no objective other than avoiding payment for commercially available work," she writes. "Some posters of others' images and text will have no fair use or other defenses... [but] the argument here does not depend on proportions; the volume of infringement does not excuse a regime systematically vulnerable to speech-stifling errors."

The law could be tweaked to fix some of these problems. Takedown notices could be limited to "claim commercial appropriation of entire works, requiring proof to be submitted along with the notification so ISPs could make informed determinations." Eliminating the 10 to 14 day takedown period could help, as could boosting penalties against those who purposely misuse DMCA takedowns.

But Seltzer's preference would be a wholesale revamp of the law, one that corrects "the fundamental flaw that targets of notifications are presumed guilty, and punished with the loss of speech, before they can contest the charges."