I think the secondary risk factor is that access to the legal system is expensive and time-consuming, especially for an individual.
A counterclaim process, even if as streamlined and fully supported as possible, is still a legal operation which involves time and money that many people are not going to have, especially for small-scale and legitimate fair-use scenarios. If you copyright claim some video from Sony or IBM, they've got a legal team on retainer to get it back up. A top-tier "content creator" who's earned six or seven figures and his career depends on the video staying up might hire a lawyer and fight for it. But the guy who's using a video clip as a fair-use part of a non-commercial discussion is probably going to fold instead of going out of pocket to defend himself.
So we'd see the system falling back to "no response/takedown" for many important real-world use cases anyway.
If DMCA spam had a cost to it-- perhaps a deposit that had to be filed with the court, refundable if there is no counterclaim, or actual prosecution of bad-faith actors for perjury, that might help make it a tradeoff rather than a wholesale giveaway to the copyright industry.
A counterclaim process, even if as streamlined and fully supported as possible, is still a legal operation which involves time and money that many people are not going to have, especially for small-scale and legitimate fair-use scenarios. If you copyright claim some video from Sony or IBM, they've got a legal team on retainer to get it back up. A top-tier "content creator" who's earned six or seven figures and his career depends on the video staying up might hire a lawyer and fight for it. But the guy who's using a video clip as a fair-use part of a non-commercial discussion is probably going to fold instead of going out of pocket to defend himself.
So we'd see the system falling back to "no response/takedown" for many important real-world use cases anyway.
If DMCA spam had a cost to it-- perhaps a deposit that had to be filed with the court, refundable if there is no counterclaim, or actual prosecution of bad-faith actors for perjury, that might help make it a tradeoff rather than a wholesale giveaway to the copyright industry.