2016. Jennifer Urban, Joe Karaganis, Brianna Schofield
American Assembly and Berkeley Law
"Notice and Takedown in Everyday Practice" is a set of empirical studies into the DMCA’s notice and takedown process. Despite its importance to copyright holders, online service providers, and Internet speakers, very little empirical research has been done on how effective notice and takedown is in addressing copyright infringement, spurring online service provider development, or due process for notice targets.
Our report is the most in-depth research we know of to date into this system. It includes three studies that draw back the curtain on notice and takedown: using detailed surveys and interviews with more than three dozen respondents, the first study gathers information on how online service providers and rightsholders experience and practice notice and takedown on a day-to-day basis; the second study examines a random sample from over 100 million notices generated during a six-month period to see who is sending notices, why, and whether they are valid takedown requests; and the third study looks specifically at a subset of those notices that were sent to Google Image Search.
The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated, “bot”-based systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering.
The second and third studies revealed surprisingly high percentages of notices of questionable validity—mistakes are made by both by "bots" and by humans. In one study, we reviewed automated notices—created, sent, and processed largely by computers. These notices overwhelmingly targeted well-known infringing sites and requested removal of major copyright holders’ assets, which may lessen concerns that mistakes would have negative effects on expression. Unfortunately, however, they also exhibited a number of flaws. One in twenty-five of the takedown requests (4.2 percent) targeted material that clearly did not match the copyrighted work, and nearly a third (28.4 percent) raised at least one question about their validity—ranging from failure to identify the materials in dispute to targeting potentially legal uses. These percentages translate to many millions of notices in the entire set—for example, the 4.2 percent translates to about 4.5 million notices.
The other statistical study raised further concerns. These requests tended to be sent by smaller senders—individuals and small businesses—apparently by humans rather than computers. But they exhibited even more flaws. A full seven out of ten (72 percent) presented questions about their validity. More than half (all problematic) were from one individual sender. Even without her notices, however, 36.8 percent were questionable. These notices often targeted social media, blogs, and personal websites, raising even greater questions about their effect on expression.
The United States Copyright Office recently issued a “Notice of Inquiry” (a formal study) of the DMCA’s notice and takedown process, with comments due on April 1, making this research very timely. The findings strongly suggest that the notice and takedown system is important, under strain, and that there is no “one size fits all” approach to improving it. Based on the findings, we suggest a variety of reforms to law and practice