Google-funded report generates desired headlines and conveniently downplays the role of DMCA counter-notices–ignoring fact the system is weighted against rights holders
A new report on the DMCA notice and takedown system, Notice and Takedown in Everyday Practice, was released yesterday. Co-authored by researchers at Berkeley Law and Columbia University (collaborators for The Takedown Project), the release is clearly timed to generate buzz to coincide with the April 1st deadline for comments to the U.S. Copyright Office on the state of the 512 statute.
The study is said to offer, “a rare, in-depth, empirical look at ways online copyright disputes are handled between Internet companies, such as Google and YouTube, and content creators, such as movie, music, and publishing companies.” Hmmm, color me a tad suspicious of any piracy-related report funded by Google*.
You can read the full 160 page document here, and despite the fact Google is a main funder, I was hopeful that the report would provide an honest look at the current sad state of the DMCA notice and takedown system. What initially encouraged me was this paragraph in the Berkeley Law announcement:
The co-authors reveal how online copyright issues have led to problematic practices that threaten free expression, but they also highlight methods that effectively protect both content creators and providers.
However, my hopes for a fair examination of the issues were (mostly) dashed by this tidbit:
Although there are “counter notice” procedures for users, it is unclear if they work well.
Of course, I really shouldn’t be surprised by this intentional oversight, particularly when the research is conducted through the generosity of Google. How can one purport to do an, “in-depth, empirical look at ways online copyright disputes are handled between Internet companies, such as Google and YouTube, and content creators, such as movie, music, and publishing companies” without finding clarity on a major piece of the current notice & takedown process?
Drilling down into the actual report I found summary regarding counter-notices on page 128:
Study 1 OSPs described hesitating to encourage targeted users to send counter notices, even when it seemed appropriate, for fear of creating liability risk for targets and themselves. Unbalanced liability standards—fear of suit by copyright holders but not users—creates incentives for OSPs to take down material. Moreover, some of the main targets of large-scale requests— search services—have no service relationship with targets or any duty to inform them that links are being removed, making it highly unlikely that the target would know to send a counter notice. Further, as we discuss in recommendations, section 512 currently leaves unclear whether search engines are protected for putback like hosting entities, exacerbating the challenge. Overall, the counter-notice process’s procedural features make it difficult for OSPs to use it as intended. The counter notice process contains other flaws. In Study 1, OSPs described it as intimidating and confusing for targets.
I am not an attorney, but in my anti-piracy work I’ve repeatedly found the counter-notice system to be weighted against the rights-holder. I ran the above statement by a couple of copyright law experts and they agreed the concerns regarding OSP’s (online service providers) increased liability seems suspect. The only thing required by a counter-notice is that the sender provides real contact information (a good thing). The Takedown Project touts the need for “greater transparency” in the notice & takedown system so it would seem that identification of the parties involved in a copyright dispute is only fair.
I’ve written about my experience with sending a takedown notice on YouTube (for the removal of a full-length feature film that uploaded) and having the sender respond with a counter-notice. BTW, in contrast to the report’s characterization of the process, YouTube makes it very easy. Once the counter-notice (claiming “fair use”) was sent, I was powerless because the law requires the sender of the DMCA takedown to go to court to enforce a request. Since the filmmaker I represented didn’t have the financial resources to do that, YouTube reposted the ENTIRE FILM 10 days later. You tell me, who is the loser in this scenario? It’s one that’s happened to me multiple times on YouTube. Why does the report downplay the frequent abuse of the counter-notice system?
I’m also curious as to why researchers had such difficulty finding examples of counter-notices? Obviously the vast majority of takedown notices are valid and would be unlikely to generate a counter-notice but if takedown abuse is as rampant as researchers claim, there must be enough to cull meaningful data from. Yet, according to the researchers, “…all available evidence suggests that counter notices are simply not used. It is indicative of the problem that the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates.”
It’s worth noting that the Lumen database (previously Chilling Effects) that provided researchers with the takedown notices used in the study offers a tool for generating a counter-notice. Why doesn’t Lumen offer a database for counter-notices too? Did researchers simply give this issue short shrift because data was more difficult to come by, or because it would be an inconvenient truth, or both?
I brought up my concerns about counter-notice abuse with Berkeley researchers in 2014
In fact, in October of 2014 I participated in the USPTO’s ongoing series of public multi-stakeholder forums on improving efficiency the DMCA Notice & Takedown system. At the time Brianna Schofield, a teaching fellow at the clinic who assisted with the report’s research, gave a presentation about the study. As part of the Q & A follow-up I raised the issue of invalid/inaccurate counter-notices with her, hoping to bring attention to the issue. I’m disappointed to see that this issue didn’t garner a more rigorous look.
Although I haven’t had time to give the report a thorough reading, even with a cursory review I found more cause for skepticism.
The report makes for good (false) headlines, but the data is suspect
Berkeley Law’s story announcing the report’s findings claims that a study “found nearly a third (28.4%) raised at least one question about their validity.” Of course this characterization is intended to raise eyebrows, details of which can be found on page 2 of the research summary:
Study 2’s quantitative analysis revealed deficiencies in notice and takedown procedures, especially automated requests, as all takedown requests in the sample appeared to be automated. Nearly 30% of takedown requests were of questionable validity. In one in twenty-five cases, targeted content did not match the identified infringed work, suggesting that 4.5 million requests in the entire six-month data set were fundamentally flawed. Another 15% of the requests raised questions about whether they had sufficiently identified the allegedly infringed work of the allegedly infringing material. The analysis further identified significant questions related to the availability of potential fair use defense, complaints grounded on improper (non-copyright) claims, and requests sent to defunct web sites.
Note amid this gobbledygook that phrases like one in 25 actually equals only 4.2% but meanwhile that means 4.5 million over six months…sounds like a lot until you remember that Google handles 2 million requests per day. Adding to the confusion over results is that this “report” actually consolidates 3 separate studies making it difficult to figure out which end is up and what percentage means what…purposeful chaos. In study number 3 one bad actor was responsible for 53% of problematic takedowns tallied. Throw out a bunch of percentages hoping they stick somewhere, somehow…
Strikingly, nearly 53% of the Google Image Search takedown requests were from one individual sender, Ella Miller.17 All of these requests appeared to be improper subject matter for DMCA takedown—none were copyright complaints.
BTW, she’s described as a “European individual who is embroiled in an online dispute about modeling photographs taken of her.” Along with eye-popping percentages, the report includes a myriad of pretty charts to display this colorful, yet dubious data. Why bother to include this particular red herring’s notices in the study when the report notes they weren’t copyright complaints?
More striking is the question, why did researchers include this outlier’s data in their results?
It’s also ironic so much weight is given to notices sent by Ms. Miller given researchers’ glib dismissal of false counter-notices with the observation that “the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates.” Meanwhile, the majority of problematic takedowns highlighted in the report were bad faith, bogus takedown notices from one overseas model.
If Ms. Miller is such a problem, take her to court. After all, a legal counter-notice requires a sender to be truthful and to swear, under penalty of perjury, that the document is correct. Talk about blowing something out of proportion. One confused, overzealous individual with a grudge is not representative of the millions who send legit DMCA takedown notices.
Of course, for folks in the Googlesphere these bogus numbers generated by the study had the desired effect…prompted, as if on cue, screaming headlines in Variety that read, Policing the Pirates: 30% of Takedown Requests Are Questionable (Study). Google lobbyists in Washington are no doubt quite pleased as they circulate this particular press clipping around town.
Personal blogs and social media sites are often used (knowingly) to promote piracy
Bogus headlines aside, the report also predictably raises the oft-used canard of free speech, that the DMCA is used as a nefarious cudgel against those poor bloggers et al (never mind that it was apparently the notorious “less sophisticated” Ms. Miller who was doing most of the targeting).
The third study, which focused on notices from less sophisticated senders, raised still greater concerns. These notices often targeted social media, blogs, and personal websites, raising questions about their effect on freedom of expression—and more than seven out of ten (72%) presented questions about their validity. Strikingly, more than half (all problematic) were from one individual sender. Of the rest, 36.8% were still questionable.
Again, my experience fighting piracy has repeatedly led to personal blogs and social media accounts with Google’s Blogger platform and Facebook leading the way. In fact, blogs hosted by Google (Blogspot sites) seem to offer pirates an easy and affordable way to set up shop to distribute their stolen movies and music. I can state without hesitation that all the DMCA notices I sent to remove pirated movies off Blogger’s Blogspot.com sites (and there have been hundreds) were accurate.
Everyone agrees that the DMCA is in dire need of an overhaul for the 21st century, but to conveniently ignore the fact that it currently puts content creators at a distinct disadvantage is disingenuous. It’s also worth reminding this report’s readers to remember who’s behind it, where the money comes from, and what types of entity finds support via its legal advocacy. Let’s just say that indie artists whose works are routinely stolen and monetized (aided by companies like Google) aren’t included.
There are some positives in this report, particularly the suggestion to improve access to takedown technology for indie artists. From page 149 of the report:
In Congressional testimony, 359 representatives of independent artists and other smaller senders also criticized a lack of meaningful access to the more sophisticated enforcement methods (including automation, REO contracts, and monetization strategies) available to larger copyright holders. Although we did not speak with small senders directly, we note that the competition issues that arise with content filtering and monetization issues (see Section III.E.) also affect independent artists, smaller labels, and other individual creators. Further information-sharing and research efforts would also be beneficial:
- Exploring ways to make monetization models more available to independent artists, smaller labels, other individual creators, and follow-on users.360
- Exploring how to make automated tools to search for potential infringements more available to independent artists, smaller labels, and other individual creators.361 Crucially, these tools must follow the best practices outlined above in order to avoid exacerbating the issues we observed with mistake and abuse. In general, any expansion of automated systems should occur in combination with the liability-balancing measures suggested in Section V.D.1 in order to ensure that mistaken or abusive notices are minimized.
In my view this should be a key part of any effort to update the DMCA. There’s no reason OSPs cannot implement technology designed to offer a more efficient and effective takedown process. Making such tools available to creators of all stripes could help mitigate the negative impact of online piracy and copyright infringement.
One of the report’s authors, Joe Karaganis, vice president of The American Assembly at Columbia University, pulls out another favorite anti-copyright meme when he offers this summation that suggests a “rebalancing” is in order.
Ideally, I hope that our work convinces policymakers that some rebalancing of responsibilities is required so that the senders of notices are a bit more on the hook for bad takedown requests.
Sorry Joe, but there’s already a “hook” in place to deter “bad” takedown requests….the counter-notice. Of course, as I explained earlier in this post, that discussion was conveniently side-stepped by these studies.
And so it goes…overblown data, fancy charts, Google talking points, suspect timing….
Clearly there are ways to update the DMCA that will benefit consumers and creators alike, but making false claims about how the law does or doesn’t work won’t accomplish much beyond reinforcing well-worn tech talking points in advance of efforts to remake the DMCA.
In the meantime I can suggest one very simple way to lower these questionable takedown numbers…companies like Google should do more to prevent online piracy and copyright infringement.
*Here’s what the report says about its funder in its acknowledgements on page 5:
We are grateful for funding support from Google Inc. as a gift to The American Assembly and from the Sloan Foundation for its support through the Berkeley Law Digital Library Copyright Project. Neither funder directed our approach in any way, and neither funder reviewed any methods, data, results, or reporting before public release.