Faza: It’s the Content, Stupid!
One thing I believe everyone can agree on is that the safe-harbour (aka “notice-and-takedown”) provisions of the DMCA aren’t working as they should. Problem is that there’s a… ahem… considerable difference of opinion regarding what is wrong with them.
The creative sector’s perspective should be well known to You, gentle Reader, but I shall take the liberty to sum up the gist of it. The safe-harbour provisions shield service providers from liability for infringements perpetrated by their users, provided they expeditiously take down infringing content of which they have been notified – that is how it works in practice, at least. The statute actually contains language pertaining to Red Flag knowledge of infringement (that is: the service provider knowing that a particular upload is infringing before being told), but the courts have, thus far, read this bit out of existence.
In case you don’t believe me, just go on YouTube and search for any full album download. Odds are good that the uploader will provide such Red Flag knowledge in the description – by stating outright that they do not own the work and are therefore infringing. Does YouTube care? Not a whit. Maybe just as well, because nobody else seems to (I’m especially thinking of the judiciary here; perhaps it is merely a matter of nobody bothering to actually file a suit based on this).