Recently, professors from the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and Columbia University’s American Assembly issued a report summarizing three studies on takedown notices under the Digital Millennium Copyright Act regime.
The report is enlightening and very useful, with an accessible executive summary, primer on the law, and insightful analysis and recommendations helpful to anyone who deals with DMCA notices even occasionally. A few highlights follow on the lessons we can draw from the three studies published in the report:
Information about service provider and copyright holder norms is hard to find. Study 1 summarizes interviews with online service providers and copyright holders/agents. Both groups have generally proven reluctant to share information about their practices, even with researchers. Service providers worry that speaking publicly will make them targets of copyright trolls or the recipients of a deluge of takedown notices; copyright holders and agents worry that revealing some of the methods they use to find allegedly infringing work online could result in potential infringers working around those methods. But study participants emphasized how little they knew about how their peer companies act in regards to takedown notices, and expressed a wish for greater transparency in this regard. By promising confidentiality to the participants, Study 1 appears to be the first to examine the real-life practices of service providers of various sizes, as well as of copyright holders and agents – and to give companies a valuable snapshot view into how their peers act on takedown notices. One of its most notable gleanings is the revelation that, despite public focus on algorithms, filtering, and automated takedown systems, the majority of services providers still use manual methods of processing DMCA notices.
Weaknesses in automated sending algorithms lead to erroneous notices. Study 2 looks at a random sample of takedown notices and finds that those generated through the application of algorithms contained certain types of mistakes that humans would not make, such as confusing a documentary that included the word “Bees” in the title for a song by “The Bees” band, or sending thousands of takedown notices targeting websites that had been defunct for over a year. Online service providers have limited options for correcting such errors (which affect approximately 30 percent of notices), especially if they do not have the resources necessary to manually review millions of notices. Copyright holders, on the other hand, would be wise to monitor and to audit the agents they use. Copyright agent algorithms vary in quality, and while some copyright agents regularly conduct manual spot checks and correct and adjust their algorithms, others simply blast away on generic and overly broad keywords (such as, apparently, the word “bees”). Takedown notices that target fair uses, fan works, or even authorized works can generate negative press for copyright holders, cost them fans and legitimate customers, and even expose them to legal threats or action.
Individual senders are less likely to understand the law. Study 3, supported by anecdotes from Study 1, shows that individual/inexperienced senders are more likely to make fundamental mistakes in their DMCA takedown notices, including leaving out portions of the notice that are required by statute, and even misusing the notice (e.g., to address trademark, privacy, or defamation concerns rather than copyright concerns). Many online service providers, including some with automated notice-processing systems, now flag notices from new senders for manual review because they believe such notices have higher error rates. Moreover, some specific abusive senders appear to send multiple defective notices to multiple services, including one individual who accounted for half of the total notices in Study 3. The report recommends a number of steps for clarifying proper notice use to potential senders, including (1) redesigning online forms to more clearly identify the specific concerns they are intended to address (e.g., copyright infringement, trademark violation, privacy intrusion, etc.), which would help to reduce senders' erroneous reliance on DMCA notices as a universal complaint mechanism; (2) providing educational materials explaining what copyright protection is and how fair use generally works; and (3) providing clear instructions, via an easy-to-use interface, for creating a proper takedown notice containing all of the required elements.