Reid (2021)
Contents
Source Details
| Reid (2021) | |
| Title: | Readability, Accessibility, and Clarity: An Analysis of DMCA Repeat Infringer Policies |
| Author(s): | Reid, A. |
| Year: | 2021 |
| Citation: | Reid, A. (2021). Clarity: An Analysis of DMCA Repeat Infringer Policies, 61. JURIMETRICS J, 405-41. |
| Link(s): | Definitive , Open Access |
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| About the Data | |
| Data Description: | “This project examined the repeat infringer policies of thirteen wireline broadband providers.” “This research examined three ISP policy documents: (1) terms of service (TOS), (2) acceptable use policies (AUP), and (3) stand-alone copyright policies. The relevant policies were found through a combination of searching for legal notices, policies, and terms of service links on an ISP’s main webpage. Once the various policies were located, the relevant provisions were identified, in part, by searching for the terms ‘copyright,’ ‘infringement,’ ‘DMCA,’ or ‘repeat infringer.’” |
| Data Type: | Secondary data |
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| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
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Abstract
“Internet access is an essential service in the digital age, and internet service providers (ISPs) are a powerful choke point in the digital ecosystem. The Digital Millennium Copyright Act (DMCA) offers statutory safe harbor protection from copyright liability on the condition that an online service provider (1) adopts, (2) informs subscribers of, and (3) enforces a policy to terminate repeat infringers, in appropriate circumstances. This study examines the second condition, namely how well an ISP informs subscribers of its repeat infringer policy. Other research has analyzed platform policies, like privacy policies and end user license agreements. However, there has been no systematic analysis of ISP repeat infringer policies. To fill this gap in the literature, the present study analyzes the readability, accessibility, and clarity of the repeat infringer policies of 13 ISPs, which collectively serve over 80 percent of the U.S. consumer market. Although these ISP policies differ in length and tone, their median readability score, per the Flesch readability formula, is “very difficult” for average readers. This raises the question whether average subscribers are indeed the intended audience for these policies. One wonders whether these nearly unreadable policies satisfy the DMCA’s safe harbor requirement to inform subscribers. By analyzing not only the readability metrics but also thematic similarities and differences of the ISP policies, this study fills another gap in the literature. The policies studied vary with respect to whether a repeat infringer was defined, whether a repeat infringer could be rehabilitated, and how long a repeat infringer’s termination period might endure. Some policies outlined the counter notification process, and some cautioned copyright holders against knowingly making misrepresentations in infringement notifications. However, a legal analysis of these counter notification processes highlights that ISP subscribers lack effective mechanisms to rebut allegations of infringement. The counter notification process is inapposite in the ISP context because there is no material to put back. Moreover, subscribers lack recourse against bad faith allegations of infringement because no material was wrongfully removed or disabled. The principles of due process demand better processes before the last mile of internet service is terminated on the mere allegation of copyright infringement.”
Main Results of the Study
The readability scores of the ISP policies related to copyright infringement and repeat infringers were analyzed. The median grade level required to comprehend these policies was 16.1 on the Flesch-Kincaid scale, which corresponds to a college graduate level. The readability scores ranged from 10.5 to 26.4 on the Flesch-Kincaid scale, indicating a wide range of difficulty levels. The median Flesch Reading Ease score was 24.35, which falls in the "very difficult" category. The scores ranged from 0 to 52.8. None of the policies met the standard "plain English" reading ease score of 60 or higher. The average American reads at a 9th grade level, so these policies require a higher reading level. The median word count for the repeat infringer policy sections was under 600 words. The word counts ranged significantly, from under 50 words to over 2,000 words. Nearly all ISPs mentioned repeat infringers in their policies, except for Mediacom. Most ISPs (62%) did not provide a definition of "repeat infringer" in their publicly available policies. Among the ISPs that did define repeat infringer, the definitions varied - some specified a number of notices that would trigger the policy. There was no consistent definition of "repeat infringer" across the different ISP policies. The policies were unclear on how alleged repeat infringers would be identified (by name, address, IP address, etc). Less than half (46%) of ISPs mentioned using a graduated response before terminating service for repeat infringers. The vast majority (85%) did not indicate the duration of account terminations for repeat infringers. Only 15% specified the termination period, which was 6 months in those cases. Policies differed on consequences for subscribers who continue to receive infringement notices after serving a termination period. Most ISPs (77%) indicated DMCA notifications factor into determining repeat infringer status. It also found that all ISPs provided contact information for DMCA notifications, with 77% specifying statutory requirements for effective takedown notices. However, 23% of ISPs only mentioned contact information without detailing notice elements. Four ISPs (31%) did not address subscribers' option to send DMCA counter-notices. While most ISPs used the same contact information for both notices and counter-notices, Cox Communication was an exception. Some ISPs remained silent on the elements of effective put-back notices. ISP policies showed different attitudes regarding whether they expressly stated that an infringement notice could act as a basis for terminating an alleged infringer, and the ISPs' policies offered different types of cautionary advice in terms of sending DMCA notices and counter-notices. ISP policies showed a stronger emphasis on cautioning against material misrepresentations in DMCA notices compared to counter notices, with a four-to-one margin. Recommendations to seek legal counsel were more pronounced for those sending counter notices. Analysis of these policies raised concerns about accuracy and currency, as 30% of ISP policies lacked last edited dates. Undated policies are inadequate for informing subscribers. The age of policies varied, with some being unexpectedly outdated despite ongoing litigation regarding repeat infringer policies. The readability of these policies indicated they were designed for legal professionals, with unexpected discrepancies and errors. Omitted effective dates and disclaimers about information accuracy further raised doubts about policy reliability and subscriber awareness.
Policy Implications as Stated By Author
The author does not make any explicit policy recommendations, but several essential points could reasonably be interpreted as implicit suggestions: Firstly, the DMCA's current framework is not suitable for § 512(a) subscribers because § 512(a) subscribers do not have material to disable or remove, and they are unable to effectively evaluate whether subscribers' use of copyrighted materials constitutes infringement or fair use the traditional DMCA notice, and counter-notification processes are not applicable. Moreover, the author points out that many ISP policies are currently unreadable, hindering subscribers' understanding of their rights and obligations. Lastly, the author underscores the importance of internet access as a gateway to the vast democratic forums of the internet. He argues that DMCA repeat infringer policies can threaten subscribers' access to these forums and implies that the relevant provisions should be reconsidered or modified.
Coverage of Study
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