MacArthur/MIT Press Series on Youth, Media, and Learning

Posted on January 10, 2008 by Phillips Academy

Last month, the MacArthur Foundation, along with MIT Press, announced the release of a series of new books on youth and new media. The series is a treasure trove.

I have been working my way through the six books over the past several weeks as I’m simultaneously working on late drafts of the book that Urs Gasser and I are writing on a similar topic, called Born Digital (forthcoming, Basic Books, 2008).

I’d highly recommend to anyone remotely interested in the topic to read these books. They are academic in style, structure and language, but remarkably accessible in my view. I’m not a social scientist, nor an expert in most of the fields that are represented by the authors (in fact, I’m not sure if there are any lawyers at all in the list of authors!), but the editors and authors have done a lovely job of making their fields relevant broadly.

For starters, the series Foreword, by the group of “series advisors,” is wonderful. I can’t imagine how six people came to agree on such a clear text, but somehow they did. There must have been a lead author who held onto the pen; it’s far too coherent to have been written by committee. (The advisors are: Mizuko Ito, Cathy Davidson, Henry Jenkins, Carol Lee, Michael Eisenberg, and Joanne Weiss. One imagines that the voice of the program officer at the MacArthur Foundation who made it all possible, Connie Yowell, is in there somewhere too.)

The Foreword is worth reading in full, but a few key lines: “Unlike the early years in the development of computers and computer-based media, digital media are now commonplace and pervasive, having been taken up by a wide range of individuals and institutions in all walks of life. Digital Media have escaped the boundaries of professional and formal practice, and the academic, governmental, and industry homes that initially fostered their development.” Those are simple statements, clear and right on. One of the reasons to pay attention to this topic right now is the pervasiveness, the commonplace-ness of the use of these new media, especially by many young people.

Also, their working hypothesis: “those immersed in new digital tools and networks are engaged in an unprecedented exploration of language, games, social interaction, problem solving, and self-directed activity that leads to diverse forms of learning. These diverse forms of learning are reflected in expressions of identity, how individuals express independence and creativity, and in their ability to learn, exercise judgment, and think systematically.” The work of the series authors, I think, bears out this hypothesis quite convincingly.

At the same time, the series advisors make plain that they are not “uncritical of youth practices” and note that they do not claim “that digital media necessarily hold the key to empowerment.” It is this spirit of healthy skepticism that one can hear through most of the essays in the series — and which is essential to the academic enterprise they’ve undertaken.

So far, I’ve finished the book on “Youth, Identity, and Digital Media” (ed. by David Buckingham) and “The Ecology of Games: Connecting Youth, Games, and Learning” (ed. by Katie Salen) and am part of the way through each of the others. Each one is excellent.

In the ID book, I found particularly helpful the first piece on “Introducing Identity” by David Buckingham, which took on the hard definitional and discipline-related questions of identity in this context. He put a huge amount of scholarship into context, with sharp critiques along the way. The essay by our colleague danah boyd (on “Why Youth (heart) Social Network Sites,” a variant of which is online) is already a key document in our understanding of identity and the shifts in conceptions of public and private (“privacy in public,” and the idea of the networked public — related to but not the same as Yochai Benkler’s similar notions of networked publics). And the notion of “Identity Production as Bricolage” — introduced in “Imaging, Keyboarding, and Posting Identities” by Sandra Weber and Claudia Mitchell — is evocative and helpful, I thought. The many warnings about not “exociticizing” (danah often using the word “fetishizing”) the norms and habits of young people and their use of technology, as well as echoes of Henry Jenkins’ work on convergence and his and Eszter Hargittai’s study of the participation gap came through load and clear, too. (I am pretty sure I can hear dislike of the term “digital natives” in between certain lines, as well.)

There’s much more to like in the book, and much more to work into our own understanding of ID in this environment, than I can post here. There’s an equal amount of insight in the Games book too. (The class I am co-teaching with David Hornik starts in 31 minutes and I should probably prepare a bit more than I have already.)

How Does a Foundation Program Officer Decide How to Make Grants?

Posted on November 13, 2007 by Phillips Academy

At the Berkman Center’s lunch speaker series, Gary Kebbel of the Knight Foundation is with us today. I’m not sure that I’ve ever seen such a public, open discussion by a program officer of a foundation about how they do their work in funding great projects. The Knight Foundation has been running the News Challenge for a few years, and they seek to learn and improve their processes each time. This year, they doubled the number of applications and, even more impressive, they reached out successfully to a global set of applicants (good news, we think, coming from the Global Voices-style perspective, as we do here at the Berkman Center). Knight has also continued to innovate with ways for people to submit public or private applications to the consideration process. One thing I learned: News Challenge applicants are free to read these comments, in the case of an open application, and then go back and revise and improve their application. They’ve also got a blog on PBS called Idea Lab, part of the PBS Media Shift blogging empire (hey! there’s David Ardia).

In the spirit of our interest in young people, Digital Natives, doing innovative things online: The most interesting experiment, from my perspective, is their work with MTV and MTV International on the Young Creators Award. They set aside $500,000 for this award, geared toward those 25-years-old and younger. Of the new young applicants, almost half are international.

Some of the upticks that they are seeing in the applications to this year’s News Challenge: Facebook applications, use of GPS-related tools, and place-tagging for wireless.

Grant-seekers and innovators and young creators around the world, watch Gary explain how the sausage is made when it comes to grant-making at the Knight Foundation. Watch also for commentary from uber-bloggers Ethan Zuckerman and David Weinberger and Lisa Williams, who are in the room here in real-time.

Eszter Hargittai on Digital Na(t)ives

Posted on October 30, 2007 by Phillips Academy

We have the great pleasure today at the Berkman Center of hearing from Eszter Hargittai, a prof at Northwestern, on her large-scale research project on how 18 / 19-year-olds use digital technologies. She’s also worked on problems related to what she calls the “second-level digital divide” over the past decade or so. She surveyed over 1000 students at the UIC, one of the most diverse research universities.

A set of important take-aways: she’s found a correlation between gender and the likelihood of creating and sharing digital content (women were less likely to share content online that they’ve created than men). But it turns out that skill level is actually the relevant factor, not gender: if you correct for skill-level, the gender difference goes away. She is also trying to figure out what these gaps mean in terms of opportunities for life chances.

Her research hones in on the fact that what matters are skill differences, not just technology access differences, when it comes to digital inequality. We need to provide training and education for kids in addition to access to the network. These findings — good news for her — are consistent with Eszter’s extensive body of work to date. And she’s plainly right. (This is much of what Urs Gasser and I are arguing in our book, Born Digital; we have to figure out how to say it half as elegantly as Eszter does.)

Eszter has an article coming out very soon, in a volume co-edited by danah boyd and Nicole Ellison, which makes a related set of claims. Her data inform the question of who uses social-networking sites (SNS). Women, she finds, are more likely to use SNSes than men (other than in the context of Xanga, where the numbers are reversed). People of with parents with lower academic backgrounds (which apparently correlates to lower social-economic status, (SES), backgrounds) are more likely to be MySpace users, and those with parents with higher educational backgrounds are more likely to use Facebook. (These data lead to conclusions much like what danah boyd claimed recently, and which kicked up a bit of a storm. See the 297 comments on danah’s blog.)

If you missed Eszter’s talk, it’s worth catching it online at MediaBerkman.

(Separately: she’s also got thoughtful comments on her blog about our pending Cookie Crumbles video contest.)

Born Digital

Posted on October 28, 2007 by Phillips Academy

For the past few years, Urs Gasser and I have been working on a book project together about a phenomenon that we have become obsessed with: how some young people, including our kids, use technologies in ways that are different that what we’ve seen before. The book is called Born Digital (Amazon seems not yet to know of Urs’ involvement; we’ll have to tell them). It’ll be out sometime in 2008, published by the good people at Basic Books.

(We decided to go with Basic Books because it is wonderful and we love the editors, and because they published the most important book in our field, Lawrence Lessig’s Code and Other Laws of Cyberspace and its sequel, Code 2.0. and other classics of the emerging digital literature, like The Cluetrain Manifesto.)

Our goals, among other things, in writing this book are to address and take seriously the concerns of parents and teachers and others perplexed by what’s going on; to highlight the wonderful things that some Digital Natives are up to; to make a series of policy arguments about what we ought to do about this phenomenon; and to set this issue in a global context — as part of the bigger story of globalization.

Two things prompt this blog-post: 1) to answer a persistent question we’ve been hearing from our friends and collaborators; and 2) to engage the assistance of anyone who wants to participate.

As with many overly-ambitious research projects, you start in one place and — you hope, I suppose — end up someplace a bit different that where you expected to get. That’s surely the case for us on this project.

So, first off, the issue. It’s a definitional issue, always an important starting point in a research project. We began this project interested in a distinction that others thought up and have pursued in various way: the difference between “Digital Natives” and “Digital Immigrants.” (There’s an interesting short history, which we track, of the etymology of these terms, a subject for another day.)

We wanted to hone in on what it means to be a Digital Native and what the practices and lives of Digital Natives tell us about our society and about our future. One of the primary struggles we’ve faced is that these two terms alone — Digital Native and Digital Immigrant — are unsatisfactory on their own. They give rise to discomfort on several levels.

One, we’ve heard a few times that the term “Digital Native” carries with it connotations that are not all good, that it’s un-PC. That concern is worth acknowledging and talking through with anyone concerned about it, but given that we think it’s a wonderful thing in most ways to be a Digital Native (or, indeed, native to many other environments, like Boston, my hometown — “I am a Boston native” and am proud of it), I think that’s not a crisis.

The deeper discomfort comes from what is a little math problem:

– Not all people born during a certain period of history (say, after the advent of BBSes) are Digital Natives. Not everyone born today lives a life that is digital in every, or indeed any, way. For starters, only about 1 billion of the 6.7 billion people in the world have regular access to the supposedly “World Wide Web.” In other cases, young people we are meeting choose to have little to do with digital life.

– Not all of the people who have the character traits of Digital Natives are young. The term “Digital Immigrant” doesn’t describe those people either — people like Urs and me, like our colleagues at the Berkman Center who are over a certain age — who live digital lives in as many ways, if not more, than many Digital Natives. Many of us have been here as the whole digital age has come about, and many of our colleagues have participated in making it happen in lots and lots of crucial ways.

We’ve been struggling hard with this problem. One of the benefits of “still writing” this book (we have a full draft, but are far from ready to go to print) and being in the throes of interviews and focus groups is that we are still working on getting it right.

We started out asking whether there is a straight “generational gap” between those Born Digital and those who were not. The point of our research, in the first instance, is to take up these terms Digital Native and Digital Immigrant, and work them over. What I think we’ve found is that age is relevant, but not dispositive. What I think we are describing in our book is a set of traits — having to do with how people interact with information, with one another, and with institutions — that are more likely to be found in those Born Digital, but not certainly so. Many people Born Digital have some but not all of these traits. Many people who were not Born Digital — you (who read this blogpost) and me and Urs and perhaps most Berkmaniacs, to be sure — have these traits and more, more even than most Digital Natives. That’s essential to the puzzle of the book. There is a generational gap, but it’s not purely a generational gap. It’s more complicated.

So, here is a typology which we think emerges from what we’ve learned:

1) those who are Born Digital and also Live Digital = the *Digital Natives* we focus on in this book (to complicate things further: there is a spectrum of what it means to live digitally, with a series of factors to help define where a Digital Native falls on it);

2) those who are Born Digital (i.e., at a moment in history, today) and are *not* Living Digital (and are hence not Digital Natives);

3) those who are not Born Digital but Live Digital = us (for whom we do not have a satisfactory term; perhaps we need one — our colleague David Weinberger suggests “Digital Settlers”);

4) those who are not Born Digital, don’t Live Digital in any substantial way, but are finding their way in a digital world = Digital Immigrants; and,

5) those who weren’t Born Digital and don’t have anything to do with the digital world, whether by choice, reasons of access or cash, and so forth.

There may be more categories, but these are the essential ones. Our book focuses on the first — those Born Digital and who Live Digital lives. Though it’s not the focus of this particular book, the third category is also deeply relevant to the narrative.

It may well be that there will prove to be a generational divide between those Born Digital and those not Born Digital. What we are focused on here, though, is the particular population — rather than the generation — of those who were both Born Digital and Live Digital, and what their lifestyles and habits and mores mean for the present and the future.

As it often the case, danah boyd says it better than I could in her talk at 4S earlier this fall:

“While I groan whenever the buzzword ‘digital native’ is jockeyed about, I also know that there is salience to this term. It is not a term that demarcates a generation, but a state of experience. The term is referencing those who understand that the world is networked, that cultures exist beyond geographical coordinates, and that mediating technologies allow cultures to flourish in new ways. Digital natives are not invested in ‘life on the screen’ or ‘going virtual’ but on using technology as an artifact that allows them to negotiate culture. In other words, a ‘digital native’ understands that there is no such thing as ‘going online’ but rather, what is important is the way in which people move between geographically-organized interactions and network-organized interactions. To them, it’s all about the networks, even if those networks have coherent geographical boundaries.”

What we seek to describe in this book is an emerging global culture of people relating to information, one another, and institutions in ways that, taken together, has great promise for the future of democracies. Digital Natives — people born digital — give us reason for hope that this global culture could emerge. Some of their behaviors also give reason to worry, at the same time, about things like privacy, safety, information overload, and IP worries. We need to take these problems seriously and get in front of them, without ruining the environment that makes all the wonderful things possible.

In this book, we argue in favor of greater connectivity. That connectivity might be between parents or teachers or lawmakers who don’t live any part of their lives online and our kids who do. That connectivity might be between those in industry who are threatened by what these kids and others (us) are up to online and the culture that we represent. That connectivity might be between technology companies and their users, whose identities they seek otherwise to control. That connectivity might be between those of us in the rich world and those in less rich parts of the world, as GV makes possible. And so forth.

That leads to the request for help, or at least invitation to participate. Our goal is to carry out much of this research and writing in a public way. To that end, we’ve got a wiki at DigitalNative.org where anyone can come and contribute. Much of what we’re reading and learning shows up on this wiki. We’d love to plug our work into the work of others, and learn from what others are learning.

We are lucky to have an amazing team of people at the Berkman Center and the Research Center on Information Law at the University of St. Gallen in Switzerland working with us on this research, too, including the focus groups and interviews we’re conducting. Our work is coming along much better than it otherwise would with the able guidance and critiques of this team at our backs. We are lucky, too, to be able to read the work of many social scientists, cultural anthropologists, neuroscientists, psychologists, teachers, and others — people like Mimi Ito and our colleagues at the Berkman Center, danah boyd, Corinna di Gennaro, Shenja van der Graaf, and Miriam Simun — who understand aspects (or the whole) of the phenomenon we take up here far better than we do. We’d love to have your help, too, in working through these problems online.

Throwing Code Over the Wall to Non-Profits

Posted on August 27, 2007 by Phillips Academy

Total blue sky, inspired in part by a wonderful gathering pulled together by Jake Shapiro at PRX and Vince Stehle at the Surdna Foundation, picking up on thoughts from various contexts:

If I could start (or otherwise will into existence) any non-profit right now, what it would do is to develop and apply code for non-profit organizations that are under-using new information technologies for core communications purposes. The organization would be comprised primarily of smart, committed, young coders and project managers, primarily, who know how to take open source and other web 2.0-type tools and apply them to connect to communities of interest. (Perhaps some coders would volunteer, too, on a moonlighting basis.)

There are a bunch of problems it would be designed to solve. There are lots of non-profit organizations, such as public media organizations or local initiative campaigns or NGOs in fields like human rights, for instance, that would like to leverage new technologies in the public interest — to reach new audiences for their work and to build communities around ideas — but have no clue as to how to go about doing it.

I think the stars are aligned for such a non-profit to make a big difference at this moment of wild technological innovation. There are lots of relevant pieces that are ready to be put together. Ning and many others have developed platforms that could be leveraged. SourceForge has endless tools for the taking and applying to solve problems. Blogs, wikis, social networks (think of the Facebook open API), and Second Life (or whatever you’d like to experiment with in the participatory media space) are also easy to put to work, if you know how. Most small organizations know that Digital Natives (and many others) are spending lots of their lives online. There are others who do things like this — consider the wonderful Tactical Tech in the global environment, as well as those who do development for political campaigns, like Blue State Digital — whose learning might be leveraged here. There is plenty of “pain in the marketplace,” as venture guys might say. There are smart coders coming out of schools who want to do well enough by doing good in a mission-driven organization (think of the geekiest members of the Free Culture movement). The goal would be to take these technologies and making them work for carefully targeted customers in the non-profit space.

The non-profit would require a reasonable pile of start-up capital to get set up and to have ballast for lean times, but it would have a revenue model. It would charge for its services, on an overall break-even basis. It would not develop things for free; it would develop things for cheap(er) and with real expertise for non-profits that need access to the technologies. (One could imagine a sliding scale based upon resources and revenue and so forth.) It would also have a training services arm. Clients would be required to pay for some training, too, so that the organization would have an internal capacity to keep up the tool that’s developed for them.

I could imagine it loosely based in a big, open, low-rent space in Central Square in Cambridge, right between MIT and Harvard, with collaborators around the world. I suspect there are others doing something like this, but I am constantly surprised by the number of times I am at meetings or conferences where prospective customers tell me they don’t have a provider for their needs.

Keith Sawyer's Group Genius

Posted on August 11, 2007 by Phillips Academy

On the long flight from Boston to Shanghai, I read R. Keith Sawyer‘s recent book, Group Genius. It’s definitely a worthwhile read for anyone who cares about how innovation really works as a functional matter; anyone who runs any kind of an organization; and anyone who ever struggles with trying to do something creative, whether alone or with others. Sawyer takes on the romantic myth of the solo author/inventor/genius with a persuasive argument about “the unique power of collaboration to generate innovation.” I happen to be pre-disposed to thinking he’s right, but the many examples he gives (Morse, Darwin, Picasso, companies like Whole Foods, YouTube, and Google, and so forth) helped to clarify my own thinking about innovation and creativity and how they come to pass.

A few thoughts that the book sparked in me (Sawyer talks a lot about “sparks”), for which I am grateful:

– Urs Gasser, Colin Maclay and I have a long-running series of conversations about collaboration across institutions, interdisciplinarity, and international comparative work in our field. It’s our shared (I think!) view that it would be very, very hard, if not impossible, effectively to study what we study — the implications of changes in information technologies on society, with an emphasis on law and policy — without collaborating with others. The Berkman Center, our shared professional home, works best, in my view, when it makes possible collaboration between creative people, some of whom work at Berkman/HLS and others who are just friends. In a more formal sense, we work deliberately with other institutions, like Urs’s Research Center for Information Law at the University of St. Gallen; JZ’s Oxford Internet Institute; Lawrence Lessig’s Stanford Center for Internet & Society; Jack Balkin and Eddan Katz’s Information Society Project at Yale Law School; our partner institutions in the OpenNet Initiative (the University of Toronto’s Citizen Lab; University of Cambridge; and OII); and so forth. I am not certain that we are accomplishing “group genius” through any of these collaborations, but I am quite sure that our work would be much less richly rewarding without them. As the Berkman Center morphs from an HLS-based institution to one that draws more formally on the work of others at Harvard in the next year, we hope that our work will continue in this direction of more interdisciplinary, more comparative, and more creative.

– It made me reflect, too, on Urs’s recent blog-post about his two week stay with us in Cambridge this summer. We spent a good bit of time (never enough, of course) talking about what we want to say in the book that we are co-authoring, Born Digital, and what we hope to accomplish in the related Digital Natives project. This is a field in which many, many good and smart people have been working very hard to understand how young people use new information technologies and what it means. We hope for our work on this book and this project to be complementary, not competitive, to this emerging body of work. As lawyers, but also scholars interested in interdisciplinary work, we’ve spent a lot of time recently thinking about what our “comparative advantage” is — what is it that our training and mode of analysis can enable us to offer to an increasingly rich body of literature. Our goal has to do with both understanding what others have come to know through good empirical and qualitative study; to use a global, not local, lens in assessing this emerging population (rather than generation) of digital natives; and then to offer useful thoughts on how to move forward to head off the worst problems (encroachments on privacy, intellectual property concerns, information overload/credibility issues) and take advantage of the opportunities (innovation, new modes of teaching and learning, civic activism, semiotic democracy). After conversations with Urs, Ethan Zuckerman, danah boyd, and others, I’m freshly persuaded that meaningful, lightweight collaboration is essential to doing sound work in our field (not that we’re there yet, but working on it, and the Group Genius argument helps a lot in this regard).

– Fundamentally, I’m persuaded also that our highest calling at the Berkman Center may be to create an environment in which scholars and teachers can do better work than they’d do on their own.

A few modest critiques:

– Sawyer’s last chapter talks about policy approaches to “Creating the Collaborative Economy.” Several of his proposals relate to intellectual property. Curiously, this chapter was the least persuasive to me of the book’s 11 chapters, even though I expect that I roughly agree with what he argues in his seven proposals. I think I was left unconvinced in part because it’s hard to talk about copyright terms, patent reform, mandatory licensing, non-competes, the standards-making processes, and other complex legal puzzles in a paragraph each. There’s at least one counter-argument for each of the arguments he makes that’s worth exploring, in most instances from the point of view of an economist. Also, with some of the arguments, such as “3. Legalize Modding,” I agree with the gist of the argument, but I wonder about the specifics of what Sawyer writes. First, how much of a problem there is in reality — is the DMCA Section 1201, with its current exceptions, standing in the way of much modding (other than very specific circumvention of TPMs that surround copyrighted works) in practical terms? Maybe, but there’s a serious empirical question to be answered. Sawyer claims: “There are thousands of people like the extreme bike jumper who invented a way to keep his pedals from spinning. One reason they don’t share is that those modifications are often illegal. The U.S. Digital Millennium Copyright Act — designed to prevent users from making illegal copies of software, music, and movies — has the side effect of making it impossible to modify the products consumers purchase.” (p. 223) While I’m no big fan of DMCA Section 1201, to which Sawyer refers here, it’s not the case that most consumer modifications of things they buy in general are illegal. The DMCA 1201 makes illegal just the circumvention of effective technological measures designed to protect copyrighted works — a much more narrow statement than the one that Sawyer makes here. So, the ban he refers to is the ban on the act of circumventing a certain set of technologies, not the making of modifications to something you’ve bought (copyright, separately, might disallow certain modifications under the exclusive right to make derivative works, but that’s a different argument). I realize that the act of circumventing and making the modification are related, but they’re different, to be sure. In short: while the punchlines may be right in this final chapter, the analysis perhaps warrants its own book, rather than a short chapter.

– One thing in the book puzzled me; I am not sure if others who have read it had the same question. On p. 108, he’s talking about how the most creative scientists also happen to be the most productive. The argument, building upon the work of Dean Keith Simonton, reads in relevant part: “… the sheer productivity of a person — the raw output of creative products — is correlated with the creative success of that person … it turns out that for any given creator, the most creative product tends to appear during the time of most productivity. Paradoxically, slowing down and focusing on one work makes a person less creative.” (pp. 108 – 9). In the graph on that same page, titled the Distribution of Scientific Productivity, I think it shows those scientists with the fewest articles to the far left of the graph (with the greatest number of scientists on this end of the graph) and the most articles (and fewest scientists accomplishing this feat) on the far right. (Separately, I wonder if it is a Pareto distribution?) In any event, the text seems to place Darwin at the “left in the figure” (emphasis mine), whereas I would have expected Darwin to be at the right of the figure. (p. 108) I might be misreading this section or misunderstanding the graph, or perhaps it’s just a typo. It’s not that important; I think I get the point of the argument.

Separately, on recommendation engines: As an aside, I logged into Amazon.com to link to Sawyer’s book there. I noticed that my first recommended book in Amazon is William Gibson’s Spook Country. The Amazon recommendation engine is clearly getting good: that’s the most recent book I bought, at Logan Airport before I left (sorry, Amazon; nice try, though!).

Viacom Believes Fewer Than 60 Take-Down Mistakes

Posted on February 4, 2007 by Phillips Academy

I’ve been e-mailing with Michael Fricklas of Viacom since I posted about Jim Moore’s home video that got caught in Viacom’s 100,000 take-down push on Friday. Mr. Fricklas wrote to me a few times during their process of assessing how many errors they made out of 100,000. Today, he wrote: “… we’re achieving an error rate of .05% – (we have under 60 errors so far)” and that “we’ll know more as users respond to communication from YouTube”. He noted also: “Wish it was zero.”

So, let’s take Viacom at its word for the moment. A few interesting questions of law pop out from here:

1) If Viacom is right 99,940 times out of 100,000. What rights do those 60 people have when they choose to push back? Just to have the file put back up? Do they have a further claim against Viacom? Or against YouTube, for that matter?

2) Mr. Fricklas asserts that “Under DMCA, I believe that YouTube needs to retain the material and repost it if an individual believes that the copyright notice was in error.” I suppose that Section 512(g) does include the presumption that YouTube (or similarly situated party) must hold on to the allegedly infringing material once taken down, since they may have to put it back up pursuant to counter-notification. But the process of what the intermediary has to do is not explicit. What happens to the analysis if YouTube has retained nothing, and the original person who posted it retained nothing but has a very strong fair use case or an outright winner on copyright grounds? Does DMCA need to say more than it does by way of a process to protect users? There’s also the question of what policy is required to handle repeat infringers, which has caused a lot of confusion on university campuses.
Some good exam questions buried here.