> How many times over and over[0] has HN loudly lamented the DMCA takedowns, decried how awful it is to have state censorship—and one without any meaningful adversarial process?
DMCA does have an adversarial process. You're more likely thinking of e.g. YouTube's automatic DMCA-like process.
That process means fuck all because the providers who honor DMCA takedowns often do so instantly, but basically say “you can never host this content here again, ever” and don’t give any fucks about whatever stupid appeal process you do. I had Heroku take down my business with zero notice due to a malicious dmca and did exactly this. They offered zero paths other than “get a different provider”. They also disabled my entire account and all of my sites, not just the allegedly offending site. They refused to even respond to any further inquiries on the matter
The incentives are structured to make immediate takedown the path of least resistance. Yes, in theory, they can do otherwise; why would they spend money and effort doing otherwise?
Providers not liable under DMCA still do this anyway. It's not worth fighting for anything at all, to them. They'd rather lose your $10/month of revenue than take a 0.01% chance of a $100,000 lawsuit. Try getting a false abuse report on almost any VPS provider.
The keyword is "meaningful". The DMCA's counter-notice process is intimidating to use [1]. The DMCA as a whole is written in a way that effectively forces platforms to remove content targeted by unsubstantiated DMCA infringement notices [2]. (Tangentially, courts have read the DMCA's repeat infringer provision to apply to more parties than the text requires [2].)
YouTube's Content ID process, unfair as it is, is net fairer than the DMCA [3].
DMCA does have an adversarial process. You're more likely thinking of e.g. YouTube's automatic DMCA-like process.