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Does it work as intended? I guess that all depends on intent and perspective.

We’re pretty sure that AT&T and other companies (the pipes) are using packet content examination to prioritize and/or degrade certain kinds of traffic (ie, a reason they’re against net neutrality), and they mention that they may perform surveillance of the network in their terms of service. We’ve had reports of Time Warner doing similar things here in Austin. Theoretically, beyond being an egregious breach of privacy (with some pretty terrible implications for important legal protections such as privilege), those actions would seem to me that they would lose their DMCA Safe Harbor protections for online service providers, as they are both inspecting content and directing the way the traffic is being handled based on what’s in those packets. I recently mentioned this to an attorney active in the area, and he waived it off- they don’t care. They’re not the ones being sued, and they’re actively working with the content industries (or in some cases they are the content industries).

On the other hand, we have Google/YouTube et al. (the servers), who are being sued, do care about the safe harbors and rely heavily on those protections. Naturally, those protections are actively being worked against by both lobbying efforts and actions in the courts, as content industries jump on lawsuits challenging their safe harbor status.

And then we have an example of where the Safe Harbor “works” but not in a way that’s particularly satisfactory: Wendy Seltzer’s NFL/YouTube posting. She posted it. The NFL sent a cease-and-desist. It got taken down. She counter-notified. It got put back up. Then *the NFL sent another cease-and-desist.* So apparently content owners can apparently just continue sending cease-and-desist forms, leading to a ridiculous cycle of adding and removing content until someone gives up or some other type of harassment or similar lawsuit begins. She counter-notified. It got put back up. *sigh*

So, do the safe harbor protections work as intended? We know that DMCA notifications are being used, sometimes properly and sometimes improperly. So do they protect legitimate interests? Sure. Do they hurt legitimate interests? Sure. Do people have an incentive to comply with the DMCA requirements? You would think so- but the network service providers don’t seem to care. Those safe harbor protections are better than nothing, and vital for some server services- but they don’t adequately protect the public interest in the use of copyrighted material.

The results of the Viacom/Google suit- if not settled- will be telling.

And now, the NFL is using property rights and contracts to severely limit news. Again, legally permissible- but certainly in poor form.