Today, it is encouraging to hear another Senator - now, Senator McCain - speak up for fair use, but it is also worth noting that McCain voted for the Senate version of the DMCA. Regardless, McCain's request to YouTube contains an intriguing premise: implicit in it is the assumption that fair use can be protected under Section 512 as it exists without amendment. In this Article, I test McCain's assumption, asking whether we can interpret Section 512 to better foster fair use. I believe that we can. In this Article, I argue that copyright owners must consider fair or other non-infringing uses before sending take-down notices, and that users should be able to send counter-notices on the basis of fair or non-infringing use. Although neither conclusion is obvious from the face of the statute, both are strongly supported by examinations of legislative history as well as of the statute itself, particularly in light of the fact that DMCA take-downs essentially permit ex parte seizures of speech that might never be permitted in civil actions. In the spirit of the forum for which this Article was prepared, and with the aim of keeping length reasonable, the Article assumes a basic knowledge of copyright law, particularly regarding the distinctions between direct and secondary liability as well as fundamentals of fair use.

Part I recounts the concerns that prompted the drafting of Section 512. It also discusses Senator Ashcroft's addition of counter-notification procedures. Although those procedures are not as clear as they could be, the legislative history leaves no doubt that Ashcroft felt strongly that fair users need not go to court to have removed materials put back.

Part II addresses intermediaries. After noting how the notice and take-down process has been pervasive and led to a broad remix culture, Part II turns to Senator McCain's suggestion that intermediaries like YouTube consider fair use before removing political videos. Unfortunately, Section 512's safe harbors give intermediaries little incentive to accept McCain's suggestion. Instead, the statute as it exists encourages intermediaries to operate with blinders, ignoring user content until a take-down notice is received. Moreover, failing to remove materials after a take-down is received might expose intermediaries to potentially significant liability.

Instead, I argue that fair use might be better protected through proper construction of the take-down, counter-notice, and misrepresentation provisions. With that in mind, Part III addresses copyright owners, for which a recent case provides support. In Lenz v. Universal Music Corp., the court held that owners who deliberately ignore fair use before sending take-downs could be liable for knowing material misrepresentations under Section 512(f). Lenz reached the right result. In the ex parte context of take-downs (where works are taken down without prior involvement of the user), fair use must be considered by the owner. Plus, failure to consider fair use may be willful blindness by the owner. By requiring owners to stop-and-think, the Lenz case may deter frivolous take-downs.

In Part IV, I turn to how Section 512 should be interpreted regarding users. Because a stop-and-think rule for take-downs will not cure all problems with abusive take-down notices, users need a safety valve. Moreover, fair use is highly indeterminate, and in many cases a lawyer who considers fair use might reasonably conclude that the law is sufficiently unclear that a take-down can be sent in good faith. In both cases, the materials will still be taken down. Therefore, users must be permitted to send counter-notices based on fair or other non-infringing uses. In other words, "mistake or misidentification" must include not just errors of fact, but also arguable errors of law. This conclusion is preferable to forcing fair users to go to the expense and delay of litigation to obtain restoration of fairly used materials. Any concerns about a flood of frivolous counter-notices may be amply countered by the fact that users who send frivolous put-backs expose themselves to potentially significant copyright liability, as well as potential liability for making misrepresentations in connection with a counter-notice. Regarding more arguable cases of fair use, the burden of filing suit should be on owners who seek to limit speech.