Let me ignore for a moment the legal problems with copyright infringement allegation notices.

ISPs should not be liable for copyright infringement by users, and cutting off internet access for copyright infringement should not be a legitimate legal remedy. The internet is increasingly essential for applying to work, working, applying to colleges, completing secondary and tertiary education, and interacting with governments at all levels. The internet is also a crucial tool for expression protected by the First Amendment. Cutting off internet access would be an illegitimate penalty for defamation, and would be an illegitimate penalty for copyright infringement. Violations of civil law cannot override the First Amendment. In particular, copyright can't override the First Amendment: the authority of Congress to pass copyright laws is in the pre-amendment portion of the constitution, and the copyright laws themselves are federal statutes (which yield to the Supremacy Clause).

Now what about when someone sends notices alleging copyright infringement by an ISP's users (where by ISP I mean providers of access to the internet, rather than owners of websites)? First, such notices have no affirmative statutory basis and were given legal weight by a mistaken court decision [1]:

> The first safe harbor, codified at Section 512(a), applies to providers of “Transitory Digital Network Communications.”[24] Examples of these intermediaries are the companies that provide internet access generally, or what we refer to as “ISPs,” including broadband ISPs like Verizon and Cox.

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> The third safe harbor, codified at Section 512(c), applies to service providers that enable information to be “stored at the direction of users.”[27] When people speak of the “DMCA,” they are often referring to this safe harbor and the many internet services it covers, such as social media sites or YouTube, where users have published, or “stored,” some “information” they have expressed.[28] Most notably, this safe harbor, which is the most complex of the four in terms of its criteria, includes the requirement that providers abide by a “notice-and-takedown” system.[29] Under this system, the putative copyright holder or its agent sends a “notice,” which is sometimes colloquially referred to as a “takedown demand,” to the service provider alleging that some material a user has posted violates their copyright.[30] Having now been put on notice of potential infringement, the service provider must then act to quickly remove the allegedly infringing material to avoid sharing in liability for it.

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> In addition, Cox effectively created a new requirement for the 512(a) safe harbor for providers to receive and respond to takedown notices that the statutory text had never before required. Takedown notices are entirely products of the 512(c) safe harbor.[76] While the takedown notices described in 512(c) are also used in the context of the 512(b) and (d) safe harbors, the 512(a) safe harbor makes absolutely no mention of them.

Second, the Section 512(c) safe harbor still violates the First Amendment by design [1]:

> the DMCA requires the intermediaries to apply this censorship without there ever being a judicial finding that the speech or speaker activity was even wrongful.[7] Mere accusation is enough to force the intermediaries to take action, lest they lose access to the protection of the applicable safe harbor and find themselves staring down a potentially expensive infringement lawsuit. Thus, the safe-harbor system creates a situation where non-wrongful and constitutionally protected speech ends up being removed by the intermediary service it was expressed on because the law has established a mechanism to penalize these services if they do not.

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> If there is to be an obligation for a provider to act, that obligation should be triggered only after there has been a judicial finding of infringement, and not just when there has been the mere suggestion of it.

[1] https://www.rstreet.org/research/jawboning-in-plain-sight-th...