Arguments against the takedown provisions of the DMCA are voiced frequently in the Internet community and have made this law the most controversial piece of legislation ever passed on the Internet. “In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright infringement. As a result, the DMCA has developed into a serious threat to several important public policy priorities” The most common arguments against are that the DMCA causes “the chilling effect,” jeopardizes fair use, impedes upon competition and innovation and is frequently abused.
The chilling effect used to describe the fear of free expression and scientific research because of the threat of legal persecution. “In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.”(lawdictionary) The progression of useful arts and sciences is impossible without an understanding of what has already been done over the course of time in these fields. If copyright laws block that information, progression cannot occur which contradicts the basic philosophy of the DMCA to promote useful arts and sciences.
Fair use states that a user may use copyrighted materials without permission of the original author for certain purposes so long as they are not for personal monetary gain, educational in purpose, a social commentary or criticism, research, news reporting or library archiving. The work must meet a four-part balancing test to qualify as fair use. “By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public’s fair use rights.”(unintended) Because access aversion of any kind, infringing or not is illegal under the DMCA, fair use is not protected, and essentially irrelevant. The DMCA has wiped out the entire field of Cryptography, the study of techniques for secure communication in the presence of third parties by threat of legal action brought on by entertainment companies that don’t want people studying how to encrypt and decrypt codes. These attacks are also an example of the ways in which the DMCA impedes competition and innovation in the fields of computer science.
Now that the DMCA had been in effect for more than a decade its shortcomings and failures are becoming more apparent. “Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors” because content is often removed regardless of whether or not infringement has occurred to avoid lawsuits and most users neither have the time nor monetary resources to fight false DMCA claims, they rarely happen. (socialinternetlawyer)