Karaganis and Urban (2015)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Karaganis and Urban (2015)
Title: The rise of the robo notice
Author(s): Karaganis, J, Urban, J
Year: 2015
Citation: Karaganis, J., & Urban, J. (2015). The rise of the robo notice. Communications of the ACM, 58(9), 28-30.
Link(s): Definitive
Key Related Studies:
Discipline:
Linked by: Bar-Ziv and Elkin-Koren (2018)
About the Data
Data Description: Close examination of a representative sample (1800) of the 108 million takedown requests sent to Google Search during a six-month period in 2013.

Interviews and surveys in 2014 having as subjects providers of services over the Internet. The number of the interviewees and surveyed is not stated.

Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • A semester in 2013
Funder(s):

Abstract

The great virtue of the notice and takedown process for online services is its proceduralism. To take the most common example, if a service reliant on user-generated content follows the statutory procedures, acts on notices, and otherwise lacks specific knowledge of user infringement on its site (the complicated "red flag" knowledge standard), it can claim safe harbor protection in the event of a lawsuit. Services can make decisions about taking down material based on substantive review and their tolerance for risk. They may also adopt technologies or practices to supplement notice and takedown, though the law makes no such demands beyond a requirement for repeat infringer policies. The resulting balance has enabled a relatively broad scope for innovation in search and user-generated-content services. As one entrepreneur put it in our recent study of these issues, notice and takedown was "written into the DNA" of the Internet sector. The rights holder companies are slowly winning on enforcement and the largest Internet companies have become powerful enough to fend off changes in law that could threaten their core business models.

Main Results of the Study

  • In the last five or six years, the practice of notice and takedown has changed dramatically, driven by the adoption of automated notice-sending systems by rights holder groups responding to sophisticated infringing sites.
  • For some online services, the numbers of complaints went from dozens or hundreds per year to hundreds of thousands or millions. In 2009, Google’s search service received less than 100 takedown requests. In 2014, it received 345 million requests.
  • As automated notices overwhelmed small legal teams, targeted services lost the ability to fully vet the complaints they received. Because companies exposed themselves to high statutory penalties if they ignored valid complaints, the safest path afforded by the DMCA was to remove all targeted material. Some companies did so. Some responded by developing automated triage procedures that prioritized high-risk notices for human review (most commonly, those sent by individuals).
  • The DMCA+ measures included the use of content filtering systems, such as YouTube’s ContentID and Audible Magic. They included special takedown privileges for trusted senders; expanded profiling of users; restrictive terms of service; modifications to search functionality; and other approaches that stretched beyond the DMCA’s requirements.
  • Smaller services sometimes ceded control of takedown to rights holder groups, in some cases via direct back-end administrative access. Larger services with more leverage sought to retain control but, in some cases, adopted blocking or content filtering systems as part of their risk assessments.
  • Today, for online services with significant copyright exposure, the DMCA’s procedural balance is, practically speaking, obsolete. Practices shift the balance of protection from users to rights holders, and hold out the statutory remedies as, at best, last resorts for user and services
  • According to smaller services surveyed, traditional DMCA compliance appears fragile—dependent on rights holder forbearance or inattention that could change at any time.
  • Google takes down 97.5% of requests. This percentage proved, in our surveys, to be on the low end for companies that receive large numbers of automated notices.
  • 1 in 25 (4.2%) of the requests sampled were fundamentally flawed—simply targeting the wrong content
  • One-third of requests (28.9%) had characteristics that raised concerns about the validity of the claim
  • Despite the resources Google invests in this process, almost none of these notices, statistically speaking, receive substantive examination.


Policy Implications as Stated By Author

  • Automation has transformed notice and takedown from a targeted remedy for specific acts of infringement into a large-scale strategy for limiting access to infringing content. At one level, this looks like a fruitless enterprise: an endless game of whack-a-mole against a resilient and multijurisdictional file-sharing community
  • Stronger liability for reckless or malicious notice use might be a good step in curbing the worst notice practices, which can include deceptive or predatory behavior
  • Both copyright and freedom of expression are best served by clear statutory protection and human judgment regarding their contexts and purposes.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 1800
Level of aggregation: Takedown requests
Period of material under study: 2013