Study Identifies Flaws In Internet Take-Down Process

Laura Quilter and Jennifer Urban at the University of Southern California, have released a summary report of findings from their study of takedown notices entitled "Efficient Process or 'Chilling Effects'? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act." Section 512 grants safe harbor from secondary copyright liability to online service providers as long as they respond to cease-and-desist letters from copyright complainants by pulling their users’ information—web pages, forum postings, blog entries, and the like—off the Internet. Among the authors' conclusions:

• Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);
• Notices to traditional ISP’s included a substantial number of demands to remove files from peer-to-peer networks (which are not actually covered under the takedown statute, and which an OSP can only honor by terminating the target’s Internet access entirely); and
• One out of 11 included significant statutory flaws that render the notice unusable (for example, failing to adequately identify infringing material).
• Over half—57%—of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
• Over a third—37%—of the notices sent to Google targeted sites apparently outside the United States.

"The surprising number of questionable takedowns we observed," write the authors, "taken in conjunction with the ex ante removal of content, the minimal remedies for abuse of the process, and the lack of knowledge about the counternotice procedures, suggest that few are well-served by the current Section 512 process, and some or many individuals, as well as public discourse and the Internet’s value as an expressive platform, may be harmed."