Urban, Karaganis and Schofield (2017a)
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Source Details
| Urban, Karaganis and Schofield (2017a) | |
| Title: | Notice and takedown: online service provider and rightsholder accounts of everyday practice |
| Author(s): | Urban, J. M., Karaganis, J., Schofield, B. L. |
| Year: | 2017 |
| Citation: | Urban, J.M., Karaganis, J. And Schofield, B.L. (2017) Notice and takedown: online service provider and rightsholder accounts of everyday practice. 64 J. Copyright Soc’y 371. |
| Link(s): | Open Access |
| Key Related Studies: | |
| Discipline: | |
| Linked by: | Erickson and Kretschmer (2019), Urban, Schofield and Karaganis (2017b) |
| About the Data | |
| Data Description: | The study consists of semi-structured interviews with 29 online service providers (OSPs) and 6 major notice senders (including rightholders, trade associations and REOs). Interviews caught to determine how the notice and takedown system has been perceived and operationalised in the USA. |
| Data Type: | Primary data |
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| Data Analysis Methods: | |
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| Country(ies): | |
| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
| Time Period(s) of Collection: | |
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Abstract
“Section 512 of the Digital Millennium Copyright Act established both "safe harbors" from liability for online service providers and the well-known "notice and takedown" process for removing online infringements of copyrighted material. In the ensuing two decades, the notice and takedown process has become a primary tool for raising and resolving copyright disputes in the United States.
But despite its influence, there is little empirical research describing § 512's operation or its effectiveness. This article digests findings from a qualitative study, reported fully in the three-study report, Notice and Takedown in Everyday Practice (available at https://ssrn.com/abstract=2755628) and peer-reviewed here, that helps fill this gap. Through detailed surveys and interviews with nearly three dozen respondents, we provide the first detailed account of how § 512 is implemented and experienced by online service providers and large rightsholders. All respondents agreed that the § 512 safe harbors and the ability to take down infringing material remain fundamental. But the online copyright enforcement ecosystem is also highly diverse, and all participants face challenges. The findings 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 best practices and limited legal reforms.”
Main Results of the Study
The findings highlight many diverging opinions on the success of the notice and takedown system:• There is wide agreement that the basic features of this system function well (e.g. the ability to remove infringing content without the time and expense of a lawsuit). OSPs in particular find the liability provisions fundamental to the operation of the online environment today, with a respondent expressing that OSPs “live or die” by safe harbours.• Nonetheless, there are notable frustrations with the current system. Rightholders complain of problems in tackling large-scale, offshore infringement, of which notice and takedown is described as a management tool as opposed to a solution. From the perspective of OSPs, inaccurate or problematic notices put strain on resources by undermining due process and curbing free speech (with OSPs describing the risk of non-compliance as being greater than the removal of non-infringing content). OSPs universally agree that a lack of disincentive or remedy for erroneous notices amplifies this problem. From the users perspective, OSPs note that counter notices are still rarely used, and this system is overall inadequate; rightsholders nonetheless report some faith in the process.• OSPs who use a DMCA Auto process find that this often collapses into a DMCA Plus regime (including filtering, trusted sender programs and direct takedown privileges). The ability to adopt such regimes is related to an OSPs political power and success, which may in turn impact market entry for smaller platforms. In particular, smaller platforms (that implement a classic DMCA system) find they are increasingly left out of political debates regarding notice and takedown systems. They report concerns that DMCA Plus regimes, combined with any softening of safe harbour legislation, may force them into competition with better-equipped and resourced OSPs, in turn undermining entrepreneurialism and the standing of small service providers.
Policy Implications as Stated By Author
The authors caution against a “one-size-fits-all” approach to notice and takedown. They caution against any substantive changes which may impact the competitive environment for OSPs, and specifically warn against abolishing safe harbour legislation. Instead, modest statutory amendments are suggested, including:The submission of notices under penalty of perjury, as with counter notice senders; a modification of the misrepresentation threshold, and; reform of statutory damages. As echoed in the counterpart study Urban, Karaganis and Schofield (2017b), the authors suggest certain voluntary measures to improve the notice and takedown system, including:• Increased human review, both for initial filtering and idenfitication of “rogue” sites, and for ongoing spot-checking of algorithmic decision making. • More advanced technological methods, including the development of improved identification algorithms (that detects more than just e.g. URL or file-name), and a system which automatically rejects flawed notices (e.g. that are directed at a defamation disputes, or have incomplete or missing information).
Coverage of Study
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