Notice and Takedown: Online Service Provider and Rightsholder Accounts of Everyday Practice

Abstract

Section 512 of the Digital Millennium Copyright Act established both "safe harbors" from liability for online service providers and the well-known "notice and takedown" process for removing online infringements of copyrighted material. In the ensuing two decades, the notice and takedown process has become a primary tool for raising and resolving copyright disputes in the United States.

But despite its influence, there is little empirical research describing § 512's operation or its effectiveness. This article digests findings from a qualitative study, reported fully in the three-study report, Notice and Takedown in Everyday Practice (available at https://ssrn.com/abstract=2755628) and peer-reviewed here, that helps fill this gap. Through detailed surveys and interviews with nearly three dozen respondents, we provide the first detailed account of how § 512 is implemented and experienced by online service providers and large rightsholders. All respondents agreed that the § 512 safe harbors and the ability to take down infringing material remain fundamental. But the online copyright enforcement ecosystem is also highly diverse, and all participants face challenges. The findings suggest that the notice and takedown system is important, under strain, and that there is no "one size fits all" approach to improving it. Based on the findings, we suggest a variety of best practices and limited legal reforms.

Keywords: copyright, section 512, notice and takedown, takedown, intermediary liability, intermediary, enforcement, infringement, empirical