Takedown in Two Worlds: An Empirical Analysis

Abstract

In its nearly two decades of existence, the Digital Millennium Copyright Act’s “notice and takedown” process has become both a source of controversy and a primary means of addressing online copyright disputes. Yet there is little empirical research into the use of notice and takedown or its effectiveness. Because it depends on the private communications and actions of copyright holders, online service providers, and targets, notice and takedown operates largely within a difficult-to-study “black box.” This article contributes to the literature with an empirical look at two sets of takedown notices. It digests findings from two quantitative studies of takedown notices in the Lumen database, reported fully in the three-study report, Notice and Takedown in Everyday Practice (available at https://ssrn.com/abstract=2755628), and peer-reviewed here.

The first study, of notices sent to Google Web Search, shows a heavy reliance by large rightsholders on automated infringement detection and notification, and tends to support their assertions that they focus their enforcement resources on large-scale infringement. At the same time, 31% of these notices raised questions related to their accuracy and statutory compliance. The second study provides a snapshot of takedown as used by one set of smaller notice senders — individuals and small businesses sending to Google Image Search. In this study, notices were more likely to target social media sites, blogs, and personal websites, and 70% of the notices raised questions. While both studies revealed surprisingly high percentages of notices of questionable validity, the questions raised tended to differ. The automated notices in the first study predominantly exhibited issues identifying the works in question, while the notices sent by smaller rightsholders in the second study predominantly exhibited issues with the underlying claim. Accordingly, while notice sending appears to need improvement, there is no “one-size-fits-all” approach. Both “worlds” of notice sending need to be accommodated. We therefore suggest a set of voluntary best practices, educational efforts, and modest legal reforms directed to the different issues we observed.

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