Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act
Author(s): Jennifer Urban
Abstract: Digital Millennium Copyright Act, created a process that was intended to help copyright owners ensure rapid removal of allegedly infringing material from the Internet while guaranteeing compliant OSPs a safe harbor from liability for Internet users’ acts of copyright infringement. The U.S. copyright industry thus gained a new tool to combat the loss of billions of dollars (U.S.) annually from copyright infringement; OSPs, concerned about the direction of court decisions concerning their liability for their users’ copyright infringement, received protection from potential secondary liability. To qualify, OSPs must “accommodate” technical protection measures employed by copyright holders and implement policies for terminating the accounts of repeat infringers.Further measures are also required of OSPs in some situations, including the takedown of online material in response to a copyright-holder notice—the subject of this Article.
In negotiating the § 512 compromise, copyright holders sought to ensure that OSPs had incentives to remove infringing material, and OSPs sought to avoid lawsuits and judgments based on secondary liability for users’ acts of copyright infringement. The resulting § 512 safe harbor is granted to OSPs in exchange for the “expeditious” takedown, upon notice by the copyright holder, of allegedly infringing material. The alleged infringers are to be protected from mistaken takedowns and misuse of this rather remarkable extra-judicial process principally through a counternotice procedure, through which they can demand replacement of the material if the copyright owner fails to initiate a lawsuit.
Copyright-holders have had access to the easy-to-initiate takedown process afforded by 17 U.S.C. § 512 for nearly eight years, and a review of the law seems in order. Has this compromise between industries worked as planned? Has infringing material been removed from the Internet? How have Internet publishers fared, including businesses large and small, bloggers, critics, and the many other speakers who make use of the Internet? How, if at all, has the great democratization of expression afforded by the Internet been affected by a simple, expedient extra-judicial procedure for removing material? These questions are frustratingly difficult to answer, a difficulty exacerbated by the fact that § 512 takedown notices—a matter of private action like any other cease-and-desist letter—are not part of the public record.
But for nearly four years, the Chilling Effects project has attempted to fill some of the gaps in this knowledge by collecting and archiving cease-and-desist notices of all kinds. Chilling Effects has collected § 512 takedown notices from a variety of sources, including all notices received by Google Inc. For this Article, we analyzed nearly 900 of these notices along various axes in an attempt to begin answering some of these questions. Our research is ongoing, and presumably over time the data set will increase in depth and size. As such, this is a preliminary evaluation. Insofar as we have begun to answer some questions, we have also learned enough to raise more questions and establish directions for further research. Unfortunately, however, our findings comprise a rather negative snapshot of the ways in which the § 512 process is being used, and reveal little benefit to some of the constituencies it was intended to support.
In Part II of this Article, we explain the § 512 process. In Part III, we sketch the rationale and history behind § 512, and briefly note some of the predictions, hopes and concerns that § 512 inspired in industry players, policymakers and commentators. In Parts IV, V, and VI, we present our study of § 512 notices, including a description of the data set, our methodology and findings. In Part VII, we analyze the findings and make some suggestions for change to the safe harbor scheme set up by § 512.
Keywords: digital copyright