[Today's entry was contributed by new blogger JuNelle Harris. Linkage by yours truly. -RC]
Last week, in Online Policy Group v. Diebold, Cindy Cohn of the Electronic Frontier Foundation argued before a California federal district court that greater checks should be read into the notice-and-take-down/safe harbor provisions of the DMCA. Specifically, Cohn contended that parties that misuse the DMCA's procedures should be liable for damages incurred by those they target. In determining whether misuse has occurred, Cohn urged that the court should ask if the party invoking the procedures, after considering possible fair use defenses, believed that it had a "likelihood of success on the merits" in its claim of copyright infringement--the standard often used by courts in considering injunctive relief. This standard is consonant with the tremendous power vested in private parties by the DMCA, which essentially allows for prior restraints on speech, at least temporarily, without court review. Judge Jeremy Fogel indicated that he would issue a ruling in approximately two months.
A number of us from the Stanford Cyberlaw Clinic, whose own Jennifer Granick represented co-plaintiffs in the suit, and the Center for Internet and Society were in attendance. Cindy Cohn did an amazing job in oral argument. I thought, based on his questions, that Judge Fogel seemed genuinely troubled by the potential for abuse of the DMCA, but was uncertain of the legal grounds for reading the checks advocated by Cohn into it. It will be very interesting to see what his ultimate opinion is. In any case, Cohn's argument underscored the extent to which a better balance between intellectual property rights and free speech rights needs to be struck; it can only be hoped that this and other creative legal arguments will bring about this shift sooner rather than later.