Notice and Take Down: Copyright Protection or Blatant Censorship?

-- By NelsonHua - 5 Jan 2015

In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) to lend “reasonable assurance” to copyright holders of “protect[ion] against massive piracy” on the internet. As a whole, the Act extended the reach of an already restrictive copyright regime, through means such as anti-circumvention provisions (which effectively create a cause of action for copyright holders entirely outside of the recognized limits of substantive copyright rights) and increased penalties for infringement. In the name of balancing these measures with the public interest, Congress created a “safe harbor” for various forms of service providers.

In the past sixteen years, our experience navigating the DMCA has shown that this “safe harbor,” while effective at protecting the interests of service providers, fails to protect the free expression of individuals from corporate abuse of the statute. Given such costs to the public, the “assurances” offered by the DMCA to copyright holders are anything but “reasonable.” If the DMCA is anything more than a work of compromise solely between the lobbyists from Hollywood and those from Silicon Valley (though perhaps it is not), section 512 should be amended to reflect a “notice and notice” system, rather than the “notice and take down” system currently in place.

Abusing “Notice and Take Down”

As anybody familiar with the basic contours of copyright law would know, section 512 of the DMCA provides a “safe harbor” for providers of user-directed services. Under the statute, such service providers are exempt from direct and secondary liability for copyright infringement where the provider lacks knowledge (constructive or actual), and upon notification of infringement, “expeditiously” removes the offending content. This is referred to in practice as the process of “notice and take down.”

While DMCA takedown is often used in the context of actual infringement, it has also been persistently abused. Whenever a service provider receives a takedown notice, it is often in their immediate economic interests to take down the allegedly offending content without any significant inquiry – the vast amount of notices that the provider of any widely-used service receives on a daily basis makes it impractical to investigate any single request extensively. As a result, parties have exploited the DMCA, along with the private economic interests of service providers, in order to squelch political speech, circumvent “fair use,” and even prevent the exercise of legitimate individual copyright holders.

Counter-notices, Abuse Penalties, and Transparency Reports

In cases of abuse, users may submit a counter-notice to restore removed materials. This is not sufficient redress. Users may not be sophisticated enough to do so, or perhaps may fear the threat of litigation. Either way, the system mires what would otherwise be a simple matter of individual expression in procedural measures.

Section 512 also imposes liability for damages on abusive parties who “knowingly materially misrepresent” a case of infringement. However, while some users and even a service provider have teamed up to pursue liability, a recovery for possibly damages does little to abate the dignitary and free expression harms involved in a takedown. And as with the counter-notice process, the possibility of a cause of action merely mires expression in procedure.

Additionally, some service providers have been lauded for transparency reports that highlight specific examples of notice and take down abuse. Likewise, the Electronic Frontier Foundation (EFF) maintains a “Takedown Hall of Shame,” publicly censuring abusive parties. Service providers also do take a stand, perhaps contrary to their interest, for consumer rights. That being said, when the statutory system is broken, it is insufficient to rely on private corporations acting against what might be in their own interest to protect user rights.

“Notice and Notice” and Free Software

Outside of overhauling copyright as a whole, which also may be desirable, there is a simple but effective statutory solution to prevent parties from abusing the DMCA to censor service users. Rather than adding procedural hurdles to curb abuse, Congress should change the language of section 512(c) to reflect a “notice and notice system” like that which is used in Canada.

Notice and notice, as opposed to notice and takedown involves a notification from a copyright holder of infringement to a service provider, which, instead of taking down the allegedly offending material and waiting for a counter-notice, forwards the notification to the user. Though the Canadian system varies in some ways, such as in creating a safe harbor entirely separate from notice and notice procedures which has not been legally tested yet, the general idea could be imported into section 512 by opening the safe harbor for service providers participating in a notice and notice process. This process appropriately places the burden on copyright holders to submit compelling notices, as opposed to burdening users, who may not be legally sophisticated, to submit counter-notices.

Although supporters of notice and takedown would contend that their approach is necessary as a matter of efficiency, the Canadian approach has been shown to be sufficiently effective – the service provider Rogers has noted that of the approximately 5% of its users receive a notice, only 5% of that cohort receives a second notice, and only a third of that group receives a third notice.

Of course, individuals can also avoid the possibility of notice and take down abuse altogether by turning to Free Software. Users should host their own content on a personally owned server. Decentralized Free Software alternatives exist for Facebook, Youtube, and more. By taking personal content out of the hands of service providers that should generally only be expected to maximize their own profits, a user entirely eliminates the possibility of a third-party removing their content as a result of an abusive notice.