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October 21, 2004


The whole idea of the takedown provisions is that ISPs should not have to determine for themselves who is right or wrong before taking action. (I mean, were the European ISPs really supposed to take time out of their busy schedules to research the life history of Eduard what's-his-name? If ISPs had such an obligation, everyone would be complaining about how onerous *that* is.) Instead, their task is simply to preserve the status quo ante -- ante the website going up -- immediately, until the whole thing can be sorted out in court. And almost everyone forgets the counter-notification process, which means that a 10- to 14-day clock for plaintiffs starts ticking as soon as the prospective defendant sends a form letter back to their ISP.

The theory behind Section 512(c) -- and it's not outlandish -- is that an infringed work can be copied and redistributed so quickly over the Internet that postponing relief until the facts are sorted out, either by the ISP or a court, effectively denies plaintiffs an effective remedy. True, it's not a particularly elegant solution, but it's a reasonable way to grapple with the changed circumstances posed by the Internet.

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