The DMCA Has a Process Problem
I have been thinking a lot about the Digital Millennium Copyright Act lately, not just as a law student interested in copyright, but as someone who has watched the system operate in real life.
The DMCA is usually described as a balance. Copyright owners need a practical way to respond when their work is copied online. Users need protection from overbroad takedowns that remove lawful speech, criticism, commentary, or creative work. Platforms need a framework that lets them respond to claims without being forced to litigate every dispute immediately.
On paper, the process sounds simple enough. A copyright owner sends a takedown notice. The platform removes or disables access. If the user believes the removal was mistaken, the user can submit a counter-notice. If the copyright owner disagrees, the dispute can move into a formal legal process.
But the more I look at how the system works in practice, the more I think the real problem is procedural. The process does not always get to play out.
I have seen this problem from both directions.
A friend of mine once had a live church choir performance flagged online. The music was classical. The underlying composition was long in the public domain. The recording was not a commercial studio recording; it was a live performance by the choir. Even if an automated system thought it sounded like another recording, that should have prompted a more careful analysis.
That is the over-removal problem. Lawful material can disappear because a system misidentifies the work, treats a public-domain composition as if it were still protected, or assumes that one recording is the same as another.
But I have also seen the opposite problem more personally.
Recently, I found myself looking at the other side of the DMCA process. I had to think through what happens when someone believes their own copyrighted work is being used online without permission, considers fair use, and still forms a good-faith belief that the use is not lawful.
That experience made me realize how strange the process can become. Even after the copyright owner identifies the specific work, identifies the specific unauthorized use, and explains why they believe the use is not fair use, the platform may still refuse to act because it thinks the use might be fair use. In that situation, the alleged infringer never has to submit a counter-notice. No court reviews the dispute. No formal legal process begins. The platform’s internal reviewer becomes the practical decisionmaker.
This is especially strange because the law already requires copyright owners to consider fair use before sending a DMCA notice. That requirement makes sense. But once the copyright owner has done that analysis and formed a good-faith belief that the use is not fair use, the next step should not be for a private platform to casually substitute its own speculative fair-use judgment.
The issue becomes even more complicated after the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith. Warhol emphasized that fair use requires looking at the specific use being challenged. It is not enough to say that a copyrighted work appears in a new context or next to commentary. The question is what purpose the challenged use actually serves.
That matters for photographs. A website might use a photograph of a person on a critical webpage about that person. The page may contain commentary. But if the photograph is simply being used as a profile image, headshot, or identifying portrait, then the use may be serving the same purpose as the original photograph: depicting and identifying the person shown.
The problem is not simply that platforms remove too much. It is also not simply that platforms remove too little. The deeper problem is that platforms increasingly decide whether the legal process gets to happen at all.
The DMCA was supposed to create a compromise between copyright protection and free expression. But a compromise only works if the procedure actually operates. The question is not only whether copyright owners or users have too much power. The question is whether the process still works for either of them.