Use Defenses Hollow Promise After Safe Harbor!

The traditional copyright used defenses of de minimis use and Fair use are left a hollow promise in the wake of the DMCA safe harbor provision.  Although these defenses are still valid and relevant defenses in a court of law the problem is the vast majority of information removed from the internet in accordance with take-down notices never reaches the inside of a courtroom.  The moving parties are acutely aware of this statistic and as such they are none-too-shy in sending out take-down notices, and why should they be?  From their prospective the goal is the removal of the information which can be achieved by sending the notice to which the ISPs will almost certainly acquiesce.  That means to assert the defense the posting individual would have to drag themselves into the courtroom, but of course their confusion as to the extent of these defenses since they are judged on a balancing test without a bright line rule, is likely to exacerbate their fear of potentially serious criminal and civil penalties which will outweigh the intrinsic value they are likely to attach to the speech in the first place.  Thus, without a procedural safe guard against censorship by proxy the defenses are only available to a very narrow field of potential defendants and the protection they promise is gutted for all others.