There is no such thing as “self-evident” fair use. Mixing fair use and § 512(f) is a recipe for dismantling the notice-and-takedown/putback process. That process, despite imperfections, is currently the bedrock of the Internet's copyright system. If copyright owners and Internet users are exposed to liability where a use is potentially fair or unfair, a chilling effect will often prevent them from exercising their rights.

Fortunately, Congress did not design such exposure to liability into the notice-and-takedown process. Instead, Congress created penalties for copyright owners and Internet users who engage in “subjectively improper actions.”192 This fact is made clear by the statute, legislative history, and authoritative case law.

Unfortunately, plaintiffs continue to file complaints against copyright owners alleging violations of § 512(f)'s knowing material misrepresentation standard because the plaintiffs believe that they are engaging in fair use. Moreover, these plaintiffs continue to base their claims on language from the Diebold opinion, which is bad law under Rossi. So far, these cases have not resulted in judicial opinions. If a subsequent case does reach the point where a judge puts pen to paper (or fingers to keyboard), the § 512(f) claims of this nature should be rejected.

But this does not mean that users of copyrighted material who believe their activities to be fair, as well as copyright owners whose material is put back online as the result of a counternotice asserting the fair use privilege, have no recourse. The notice-and-takedown process itself contains a mechanism for Internet users to protect their ability to engage in fair use: the putback process.193 The process also contains a mechanism for copyright owners to protect their exclusive rights: infringement suits.194 Congress intended most disputes related to notice-and-takedown to be resolved by way of these mechanisms rather than pursuant to § 512(f).195

There is no doubt that the putback process is not perfect; at times, it takes as many as fourteen days for material to be reposted. Accordingly, Congress should consider shortening this timeframe. However, a thorough examination of the impact that doing so would have on copyright owners should be undertaken first. While fourteen days offline may seem like a long time in our fast-paced world,196 this window is meant to allow a copyright owner time to prepare and file a complaint against the user, which is a prerequisite for preventing putback.197 Although the time frame should be shortened, large copyright owners can-in the meantime-take steps (such as posting instructions on the websites for users who wish to object to takedown notices) similar to those taken by Viacom during the controversy over Stop the Falsiness. Actions such as these would serve to speed up the putback process in cases in which a copyright owner mistakenly targets unobjectionable or fair use material.198

The notice-and-takedown process is flawed because it allows a lot of infringing activity to go unchecked unless copyright owners invest substantial resources to police infringement199 and because it sometimes results in noninfringing material being removed from the Internet.200 However, the notice-and-takedown process has helped create the vibrant Internet marketplace in creative content that we currently enjoy, and until Congress develops something better, courts should avoid lessening its efficacy.