Robots, Pirates, and the Rise of the Automated Takedown Regime
Posted: 20 Apr 2015
Date Written: April 6, 2015
The notice-and-takedown provision of the Digital Millennium Copyright Act has become increasingly controversial, particularly with the ever-increasing use of "robo-takedown" requests -- an automated procedure by which a copyright holder locates allegedly infringing content online and then sends a takedown notice to an ISP. The rise of the robo-takedown request has been met with considerable backlash, with critics pointing to the high volume of content removal and instances of overbroad takedown requests as evidence of "abuse" of the notice-and-takedown procedure. With automated processes, there can appear to be little stopping copyright holders from regularly sending illegitimate takedown requests to ISPs, sometimes in massive numbers. Users are able to counter-notify under the DMCA to contest removal of their content, but use of the counter-notification procedure is difficult to track and seemingly rare. But, does the high rate of takedown and the seemingly low instance of counter-notification reflect “abuse” of the notice-and-takedown procedure, or does it simply mean that the DMCA is effective at combating digital piracy? This Note takes an empirical approach to exploring the issue of notice-and-takedown “abuse” with a focus on instances of robo-takedown. To do so, it identifies and analyzes all known instances of litigation arising from the notice-and-takedown procedure, isolating those instances that arise from section 512(c) user counter-notification as well as those that are predicated on section 512(f) misrepresentation claims. After presenting the empirical findings, this Note argues that robo-takedown procedures aren’t actually doing as much harm as believed, and that they, coupled with methods of strengthening user pushback procedures and lessening the risk of overbroad takedown requests, are actually an efficient means of combating the high volume of infringing content in the digital world.
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