'Who Watches the Watchmen?' An Empirical Analysis of Errors in DMCA Takedown Notices
57 Pages Posted: 17 Feb 2015 Last revised: 21 Oct 2015
Date Written: January 23, 2015
Under the Digital Millennium Copyright Act (DMCA) takedown system, to request for the takedown of infringing content, content providers and agents issuing takedown notice are required to identify the infringed work and the infringing material, and attest to the accuracy of such information and their authority to act on behalf of the copyright owner. Online service providers are required to evaluate such notices for their effectiveness and compliance before successfully acting on them. To this end, Google and Twitter as service providers are claiming very different successful takedown rates. There is also anecdotal evidence that many of these successful takedowns are "abusive" as they do not contain legitimate complaints of copyright or erroneously target legitimate content sites. This paper seeks to answer these questions by systematically examining the issue of errors in takedown notices. By parsing each individual notice in the dataset of half a million takedown notices and more than fifty million takedown requests served on Google up to 2012, this paper identifies the various types of errors made by content providers and their agents when issuing takedown notices, and the various notices which were erroneously responded to by Google. The paper finds in that up to 8.4% of all successfully-processed requests in the dataset had "technical" errors, and that additionally, at least 1.4% of all successfully-processed requests had some "substantive" errors. As all these errors are avoidable at little or no cost, this paper proposes changes to the DMCA that would improve the takedown system. By strengthening the attestation requirements of notices, subjecting notice senders to penalties for submitting notices with unambiguously substantive errors and clarifying the responsibilities of service providers in response to non-compliant notices, the takedown system will remain a fast, efficient and nuanced system that balances the diverse interests of content providers, service providers and the Internet community at large.
Keywords: DMCA, takedown notices, takedown requests, errors, Google, Megaupload
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