>Also keep in mind that before the DMCA you'd have received a lawsuit instead of a takedown in the first place.
I kind of doubt it. Filing a fraudulent lawsuit requires finding a lawyer who is willing to risk getting disbarred and putting yourself in front of a judge with the power to impose serious punishments for misbehavior. Filing a fraudulent takedown notice can be done by any jackass with an internet connection and you only get punished if the victim has the knowledge, will and finances required to hire a lawyer and go after you.
Who says that they'd all be fraudulent? I'd bet that there are more valid DMCA requests submitted than invalid. Sites like youTube would be buried in lawsuits.
The fact that the user in question by stipulation hasn't posted any infringing material. We're not talking about the effect on intermediaries.
Obviously if there were no safe harbor at all then the intermediaries would immediately cease to exist and the internet as we know it would disappear, probably to be replaced by something resembling The Pirate Bay.
Oh, that's good. Why do we have lawsuits in general then? I'd bet more guilty people are prosecuted than innocents. Let's make the economy of the judge's salary and assume everyone is guilty.
I kind of doubt it. Filing a fraudulent lawsuit requires finding a lawyer who is willing to risk getting disbarred and putting yourself in front of a judge with the power to impose serious punishments for misbehavior. Filing a fraudulent takedown notice can be done by any jackass with an internet connection and you only get punished if the victim has the knowledge, will and finances required to hire a lawyer and go after you.