Abstract
In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement.1 Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.”2 An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.”3 In addition to being the product of consensus, these measures must be “available . . . on reasonable and nondiscriminatory terms” and also “not impose substantial costs . . . or substantial burdens.”4 Although ostensibly thorough, these guidelines are too imprecise and elusive to actually guide service providers and right holders toward a consensus; the term “standard technical measures” remains undefined and possibly undefinable more than a decade after passage.