> No that is NOT my point, in fact I specifically said: "it would still be improper to try to enforce a CR when the 'alleged' infringement is obviously permissi

> No that is NOT my point, in fact I specifically said: "it would still be improper to try to enforce a CR when the 'alleged' infringement is obviously permissible under the Fair Use Doctrine". Although I think you knew that and did not intent to include the word "not" in the above statement, in which case, yes, it is improper to send out a DMCA Notice when you know the alleged CR is being used permissibly under Fair Use. Sorry, my response was confusing. By "to actually get to will_brown's point" I meant "to address" your point, because then I did mean to disagree with you :) I agree with you that fair use is almost certainly considered by attorneys before advising about filing suit, but unfortunately in practice, the repercussions for filing suit while on the wrong side of even obvious fair use are unlikely enough that it often is done. There are of course always going to be legitimate disagreements over what constitutes "obviously permissible" under fair use, and cases that seem obvious to some will still end up in court. But there are many, many flagrant abuses of the system, under the same kind of incentives that give us SLAPPs, with the same issues of not enough legal tools to fight them without also having plenty of money to back you up. For some examples, check out this EFF article[1] after Rush Limbaugh used the DMCA last year to take down clips from his show used to criticize what he said after the whole Sandra Fluke testimony thing. It also includes a host of other examples of people using takedown notices in this way, from Uri Geller to network news programs. It highlights the example of Michael Savage v the Council on American–Islamic Relations, where Savage did take them all they way to court after the notice/counternotice dance, the judge did dismiss the claims under fair use, but did not award attorneys fees. If CAIR had instead been an individual or a poor advocacy group, it's likely that Michael Savage would still have taken them to court, but there would be huge disincentives for that other party to allow the situation to escalate to that level. Better to not file a counternotice and just accept defeat than go into massive debt (hence the comparison to SLAPPs). In any case, I do agree with you that that's how the law is structured, and there are likely many ethical lawyers out there going through exactly that decision process, and we never hear about it. My point is merely that, like the "knowingly materially misrepresent" clause in the DMCA, the disincentives to being a bad actor are often toothless (and just the threat of a fight are enough to prevent people from even getting to the stage where they do have any legal remedies), so there are plenty of bad actors. And unfortunately, the people most likely to want to trample fair use rights are also often able to afford a lawyer willing to make forays into expanding intellectual property rights in new directions at only a small to moderate risk. [1] https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michael-savages-bogus-copyright-theory https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michae...