I remember when the DMCA came out. It sounded terrible! Over the years, many sites have been delighted by its “Safe Harbor” provisions, protecting them from extra legal trouble so long as they jumped through some appropriate hoops. The truth is, DMCA is still as bad as it was 13 years ago.

It seems like what’s most needed is indeed what this article suggests: penalties for false accusations. The DMCA is too-heavily weighted toward a presumption of guilt.

As it is now, there is no real cost for filing a false DMCA takedown notice. It’s “all win.” If it’s valid, you win! If it’s invalid, you don’t lose! Filing a DMCA takedown notice is disruptive to the site owners. If they’ve been hosting something without any rights to do so, the disruption is necessary and fine. The filer is the wronged party, so disruption for the site owner isn’t our primary concern. HOWEVER, If the site owners have been hosting something perfectly legally, and the DMCA takedown notice causes a disruption, this can be catastrophic. It can severely impact their income, and for no good reason. In those cases, their ought to be some recourse for the wronged party, the legal users whose material was removed.

Instead, it’s all one-sided. The law is built to deal with legitimate uses of the DMCA, and has no real provision for the idea that any DMCA takedown notice might be invalid. There’s a counter-claim provisions that might be seen as dealing with mistakes, but it’s weak, and many of the abuses of the DMCA aren’t mistakes at all; they’re deliberate.