[liberationtech] Designing Fairness for DMCA

[riptidetempora at tormail.org]

Hello, I'm @RiptideTempora on Twitter. My background is in web
development. The other day I postulated a system for handling DMCA
takedown notices on an individual website level that would tip the scales
in favor of the users (whom are, as far as I can tell, currently shafted
by the current iterations of U.S. legislation).

The full text can be found here: http://pastebin.com/0uG85vna

The process would go something like this:

    1. Someone sends a DMCA Takedown Notice
    2. A new database entry in `dmca_takedowns` is created with the entire
email
       (with full headers)
    3. All infringing material are linked in the database to that takedown
notice
       which adds a message saying "A DMCA Takedown notice has been filed
for this
       [article/video/song/whatever]."
    4. All "authors" of the content are notified of the DMCA request by
internal
       message and by email of the DMCA Takedown Notice, which will
include the
       phone numbers and email addresses for ACLU, NLG, et al. should they
wish to
       file a counter-notice (which will also be public if sent to us, by
adding
       an entry to `dmca_counternotice` which is linked to the notice ID)
    5. A public index of pending (and resolved) DMCA Takedown Notices will
be main-
       tained which include the full emails and all affected content
    6. The maximum amount of time legally permitted (designated $lead)
will elapse
       to allow the original authors ample time to organize a counter-notice
    7. If no counter-notice is filed after $lead we will either amend or
disable the
       public availability of the content. The `dmca_takedown` entry will
be marked
       as "Taken Down"
    8. If a counter-notice is filed, we will disable the content after
$lead days
       and mark the `dmca_takedown` entry as "Counter-notice filed" to
comply with
       [my understanding of the law], then wait 14 days for the filer to
respond to
       file a lawsuit (during which time we will be in contact with the
authors who
       filed counter-notice).
    9. If after 14 days no lawsuit was filed, the takedown notice will be
marked as
       "14 days expired without lawsuit" and the content will remain
visible (but
       still be indexed on a separate page for "failed" DMCA Takedowns)
    10. If we receive notification that a lawsuit has been filed, we
disable access
        to the material and mark it as "Lawsuit Pending"

      In total, I anticipate 3 pages consisting of 2 lists, 2 list, and 1
list
      respectively:
         1. The front page will list:
            A. New DMCA Takedown Notices
            B. Counter-notice Filed
         2. There will be a "taken down" page for the sake of transparency
            A. Successful takedowns
            B. Content disabled, pending the outcome of a lawsuit
         3. There will be a "failed" page that lists unsuccessful takedown
            requests for the sake of transparency

I'd like to know if such a system would be legally viable or if it would
incur additional risks for a website that implemented such a system; and
further, what adjustments could be made to make this design more robust
under the current legal and political climates around copyright law?

Thank you for your time,
~RT