Chilling Effects, Automation, and the DMCA: An Empirical Perspective

48 Pages Posted: 27 Jun 2018

See all articles by Jon Penney

Jon Penney

University of Oxford - Oxford Internet Institute; Citizen Lab, University of Toronto; Princeton University - Center for Information Technology Policy; Harvard University - Berkman Klein Center for Internet & Society; Dalhousie University - Schulich School of Law

Date Written: June 27, 2018

Abstract

When the Digital Millennium Copyright Act (DMCA) was enacted by the United States Congress in 1998, few likely predicted its central enforcement scheme — the “notice and takedown” system in section 512 — would prove so influential globally, serving as a model for similar legislation around the world. Nor, it can be surmised, did they envision the DMCA, twenty years on, standing at the forefront an emerging new legal and technological challenge — the increasing automation of legal processes — as the DMCA itself is increasingly automated with the number and scope of DMCA notices and removal requests growing exponentially by the day. These developments render even more salient one of the most enduring criticisms of the DMCA and its notice and takedown system: that it has a significant chilling effect on speech and expression online. Yet, empirical studies on the DMCA more generally are very rare, and no recent study has specifically examined DMCA notice chilling effects. The study discussed in this Article aims to address this void, with two original empirical DMCA case studies — one survey based, and another based on an analysis of 500 Google Blogs and 500 Twitter accounts that have received DMCA notices. This empirical legal study’s original findings include noteworthy evidence of DMCA notice chilling effects online, differential impacts on certain individuals and groups, as well as empirical insights as to automated enforcement of copyright and its impact on internet users

Suggested Citation

Penney, Jonathon, Chilling Effects, Automation, and the DMCA: An Empirical Perspective (June 27, 2018). Available at SSRN: https://ssrn.com/abstract=3203276

Jonathon Penney (Contact Author)

University of Oxford - Oxford Internet Institute ( email )

1 St. Giles
University of Oxford
Oxford OX1 3PG Oxfordshire, Oxfordshire OX1 3JS
United Kingdom

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7
Canada

Princeton University - Center for Information Technology Policy ( email )

C231A E-Quad
Olden Street
Princeton, NJ 08540
United States

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA Nova Scotia 02138
Canada

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
PO Box 15000
Halifax, Nova Scotia B3H 4R2
Canada

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