Most Internet professionals have some familiarity with the “notice and takedown” process created by the 1998 US Digital Millennium Copyright Act (the DMCA). Notice and takedown was conceived to serve three purposes: (1) it created a cheap and relatively fast process for resolving copyright claims against the users of online services (short of filing a lawsuit); (2) it established steps that online services could take to avoid liability as intermediaries in those disputes—the well-known DMCA “safe harbor”; and (3) it provided some protection for free speech and fair use by users in the form of “counter notice” procedures.
The great virtue of the notice and takedown process for online services was (and is) its proceduralism. To take the most common example, if a service reliant on user-generated content followed the statutory procedures, acts on notices, and otherwise lacked specific knowledge of user infringement on its site (the complicated “red flag” knowledge standard), it can claim safe harbor protection in the event of a lawsuit. Services can make decisions about taking down material based on substantive review and their tolerance for risk. The resulting balance enabled a relatively broad scope for innovation in search and user-generated-content services.
This basic model held for about a decade. Beginning around 2009, however, the practice of notice and takedown changed dramatically, driven by the adoption of automated notice-sending systems by rights holder groups responding to sophisticated infringing sites. As automated systems became common, the number of takedown requests skyrocketed. For some online services, the numbers of complaints went from dozens or hundreds per year to hundreds of thousands or millions. In 2009, Google’s search service received less than 100 takedown requests. In 2014, it received 345 million requests. Although Google is the extreme outlier, others services—especially those in the copyright ‘hot zones’ around search, storage, and social media—saw order of magnitude increases. Many others—through luck, obscurity, or low exposure to copyright conflicts—remained within the “DMCA Classic” world of low-volume notice and takedown.
This report explores the implications of this shift for users, internet companies, and rightsholders, based on a series of interviews with major stakeholders and on two quantitative studies of the integrity of the notice and takedown process.