A new report released today (March 29) offers a rare, in-depth, empirical look at ways online copyright disputes are handled between Internet companies, such as Google and YouTube, and content creators, such as movie, music, and publishing companies.
The report, Notice and Takedown in Everyday Practice, is co-authored by Berkeley Law’s Jennifer Urban and Brianna Schofield, together with Columbia University’s Joe Karaganis. Its title refers to a law passed in the late 1990s that attempted to resolve online copyright issues: the Digital Millennium Copyright Act (DMCA), specifically the notice and takedown provisions of Section 512.
The co-authors reveal how online copyright issues have led to problematic practices that threaten free expression, but they also highlight methods that effectively protect both content creators and providers.
“Our report includes three studies that draw back the curtain on notice and takedown,” Urban said. “The findings strongly suggest that the system is important, but under strain, and there is no ‘one size fits all’ approach to improving it.”
Legal compromise
The DMCA was the product of a legislative compromise between online service providers (OSPs) and copyright holders. For OSPs, the compromise meant they weren’t liable for copyright infringement, as long as they removed disputed materials in response to takedown requests. For copyright owners, the takedown requests allowed them to more easily manage online infringement without going to court to enforce their rights.
But notice and takedown has long been controversial as an extra-judicial process in which the online service provider is the decision maker in a private dispute. Although there are “counter notice” procedures for users, it is unclear if they work well.
Early on, peer-to-peer file sharing “blew things up,” said Urban, a clinical professor of law and director of the Samuelson Law, Technology & Public Policy Clinic. Among other things, it has caused some copyright holders and OSPs to escalate takedowns using automated systems, which raises further questions of accuracy and due process.
Three studies
The three studies that comprise the “Notice and Takedown” report include interviews with OSPs and copyright holders, as well as analyses of actual takedown notices.
The first study, based on confidential surveys and in-depth interviews with nearly three dozen online service providers and notice senders, found that notice and takedown is perceived as crucial to both sides, but that it has some flaws.
Internet companies consider the liability protections “central to their ability to operate,” said Urban. “Though we talked to many different kinds of OSPs, from large companies to much smaller providers, they all relied heavily on the ‘safe harbor’ protection they receive for following notice and takedown,” she said.
Copyright holders appreciated the relative ease of notice and takedown, but complained that it limits the ability to address large-scale infringement.
While the fundamental compromise behind the law remains crucial, the process as practiced is “not wholly satisfactory to any party in the chain,” said Brianna Schofield, a clinical teaching fellow. In particular, users who face copyright infringement charges have limited due process to contest the claims, and a high proportion of takedown requests are problematic.
For some major players, “the scale of online infringement has led to automated “bot”-based systems that leave little room for human review or discretion,” Urban added.
The second and third studies found direct evidence of a sobering number of questionable requests. These studies quantitatively examined two random samples of takedown notices from more than 108 million requests sent over a six-month period to Google. One study focused on automated notices sent by large copyright holders targeting large-scale infringement—in theory, the easiest cases for takedown—and found nearly a third (28.4%) raised at least one question about their validity.
The third study, which focused on notices from less sophisticated senders, raised still greater concerns. These notices often targeted social media, blogs, and personal websites, raising questions about their effect on freedom of expression—and more than seven out of ten (72%) presented questions about their validity. Strikingly, more than half (all problematic) were from one individual sender. Of the rest, 36.8% were still questionable.
Recommendations
In response to these findings and other government reform efforts, the report offers recommendations for best practices and statutory reform that would better balance the interests of copyright holders, service providers and targets, while preserving the benefits of the system.
Joe Karaganis, vice president of The American Assembly at Columbia University said, “Ideally, I hope that our work convinces policymakers that some rebalancing of responsibilities is required so that the senders of notices are a bit more on the hook for bad takedown requests.”
The report’s findings are timely. The U.S. Copyright Office is currently evaluating the costs and burdens of the notice and takedown process on large- and small-scale copyright owners, online service providers and the general public. The deadline for submitting comments to the Copyright Office on the DMCA is April 1.
A number of Berkeley Law students and alumni provided research assistance on the report, including Sérgio Alves, Jr.,’14 (LL.M.), Christina Farmer ’14, Shaina Hyder ’14, Alicia Intriago ’16, Tigist Kassahun ’15, Shweta Kumar ’16, Leighanna Mixter ’16, Smita Rajmohan LL.M. ’14, Kirsty Watkins LL.M ’15 and Lydia Anderson-Dana ’16.