It's happened again: Bogus claims of copyright infringement brought down perfectly legitimate content--this time while a lot of people were watching. Vobile, a content identification technology, shut down a live Ustream feed of the Hugo science fiction award, in early September, after airing clips from nominated TV programs as Doctor Who and Community.
As our friends at the Electronic Frontier Foundation (EFF) made clear, this is outrageous. It comes down to corporate censorship, in fact.
Bots cannot consider use of copyrighted material with the understanding a human can provide, of course. All they can do is to match copyrighted content, and the Internet is full of work that employs copyrighted material under fair use. The Digital Millennium Copyright Act (DMCA) currently requires an Internet Service Provider to take down any material that a copyright holder flags, and bots do the flagging.
Will remix culture be strangled at birth? Not if users really understand what their fair use rights are. First, users who do understand their rights can, even under today's law and practices, demand counter-takedowns and reinstatement of their work. They need to know that they're in the right, though. One tool to help: The Code of Best Practices in Fair Use for Online Video. Another tool: Reclaiming Fair Use, the book that explains fair use in a user-friendly way.
Second, if enough people know what their fair use rights are, then they will be able to push back on laws that encourage corporate censorship, and on policies, treaties, terms of service and practices that encroach upon their ability to express themselves in a participatory era.