|Robots, Pirates and the Rise of the Automated Takedown Regime: Using the DMCA to Fight Piracy and Protect End-Users
|Carpou, Z. (2016) Robots, Pirates and the Rise of the Automated Takedown Regime: Using the DMCA to Fight Piracy and Protect End-Users. 39 Colum J.L. & Arts 551.
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|About the Data
|The study sought to identify cases of litigation concerning “user pushback” on takedown requests using Westlaw, finding 24 in total. Three discrete categories were apparent:
• Where the user filed a counter-notification, but the complainant pursued the infringement claim anyway (4 cases)
• Where a counter-notification was filed and the complainant did not pursue a copyright infringement claim, but the user filed a claim of misrepresentation (16 cases).
• Where both the complainant pursued an infringement claim, and the user pursued a misrepresentation claim (4 cases).
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“This Note argues that automated notice-and-takedown processes are in fact the most efficient means available to deal with the high volume of infringing content in the digital world, but that the counter-notification procedure needs to be strengthened to provide more protection to noninfringing users in the event that their content is removed. Further, the process of scanning for and identifying infringing content must be improved to lessen the incidence of overbroad requests. Part I of this Note provides background on the Digital Millennium Copyright Act (“DMCA”) and the evolution of the notice-and-takedown procedure. Part II outlines the problems with the current state of the notice-and-takedown environment, provides an overview of the data available on takedown requests, and presents an empirical analysis of all known litigation arising from user pushback on such requests in an attempt to shed new light on the amount of noninfringing content that is actually targeted. The overarching aim of Part II is to help answer the question of whether takedown requests, generally speaking—but with an emphasis on robo-takedown requests—tend to be abusive in practice, or if instances of overbroad requests are the exception rather than the norm. Finally, Part III suggests ways in which automated notice-and-takedown processes can be refined to strike a better balance between copyright holders, ISPs, and the general public."
Main Results of the Study
Overall, the amount of litigation regarding takedown requests since the Diebold case has been low. Following a comparison with data gathered by Seng (2014), the author suggests that where users choose to counter-notify, the right holder is unlikely to pursue a complaint of copyright infringement. This may either be due to the erroneous nature of the initial complaint, or otherwise a choice not to pursue litigation - the author speculates that this may be due to a weak copyright claim in the first place (and indeed in no case where a counter-notification was specifically mentioned did this fail). Indeed, the author reminds readers that notices should only be filed in “good faith belief” that the material complained of is infringing, suggesting that any claim would be pursued in litigation. This does not appear to be the case, as right holders do not choose to defend their claims in court following receipt of a counter-notification. As such, where a copyright claim is weak, the likelihood of success when a user claims misrepresentation increases.Cases where automated notice-and-takedown measures were employed, such as Disney Enterprises Inc v Hotfile Corp, appear to be de facto unable to comply with the requirements of the DMCA, as they cannot distinguish between infringing and non-infringing content.
Policy Implications as Stated By Author
The author suggests that rather than outright condemning automated procedures for notice-and-takedown, energies should instead be focussed on improving them. Part of this process involves holding right holders accountable where they are found to abuse the system (e.g. repeatedly targeting legitimate works).Given the ongoing use of robots, users should be educated on the process of filing a counter-notice (e.g. on how to better identify legitimate claims on receipt of a notice) as the possibility of erroneous removal of content is ever-present.Finally, a “notice-and-staydown” system should be employed to ensure infringing content, once identified, is permanently removed - the author claims this will encourage right holders to target pirates as opposed to legitimate uses.
Coverage of Study