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Notice and Takedown in Everyday Practice

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Notice and Takedown in Everyday Practice Electronic copy available at: http://ssrn.com/abstract=2755628 Electronic copy available at: http://ssrn.com/abstract=2755628 NOTICE AND TAKEDOWN IN EVERYDAY PRACTICE Jennifer M. Urban, Joe Karaganis & Brianna L. Schofield © 2016 Jennifer M. Urban, Joe Karaganis, and Brianna L. Schofield. This work is licensed under a Creative Commons Attribution 4.0 International License. Jennifer M. Urban is Clinical Professor of Law at the University of California, Berkeley School of Law and Director of the Samuelson Law, Technology & Public Policy Clinic. Joe Karaganis is Vice President at The American Assembly at Columbia University. Brianna L. Schofield is Clinical Teaching Fellow at the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley School of Law. THE TAKEDOWN PROJECT This report is part of the Takedown Project, a global network of researchers studying the role of notice and takedown procedures in addressing conflicts between copyright, privacy, and freedom of expression. More information can be found on the project’s website, http://takedownproject.org. ACKNOWLEDGMENTS AND DISCLOSURES We are deeply grateful to our survey respondents and interviewees for generously contributing their time and expertise, and for candidly sharing their “on the ground” experiences with notice and takedown. This work would not have been possible without both data and funding resources for the coding effort. We thank Adam Holland and Wendy Seltzer of Lumen (formerly Chilling Effects) for facilitating access to the Lumen data, which forms the basis for our quantitative work. 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. We are also grateful for Nash Information Services’ in- kind donation of the OpusData database and expert database customization advice. We are indebted to the individuals who have generously lent their time, skill, and expertise to the project: Kristoff Grospe for his assistance with the development and management of the qualitative and quantitative studies; Martyn Joyce for building and maintaining our customized database, coding and querying interfaces, and randomization and search algorithms; Bruce Nash of Nash Information Services for help with database and algorithm design; and Nora Broege of UC Berkeley’s D-Lab for data preparation and statistical analysis. We are very grateful for the detailed and helpful comments on study design, findings, and drafts offered by Annemarie Bridy, Niva Elkin-Koren, Gwen Hinze, Martin Husovec, Deirdre Mulligan, Bill Rosenblatt, and participants in multiple Takedown Project workshops, the 3rd Global Congress on Intellectual Property Rights and the Public Interest, the 4th Global Congress on Intellectual Property Rights and the Public Interest, the 18th Annual Berkeley Center for Law and Technology and Berkeley Technology Law Journal Symposium “The Next Great Copyright Act”, the Department of Commerce Multistakeholder Forum on Improving the Operation of the DMCA Notice and Takedown System, the Chicago-Kent College of Law’s Conference on Empirical Research on Copyright Issues, and the Copyright Society of the USA’s Copyright and Technology Conference. Mistakes are ours alone. We thank the exceptional team of graduate students from the University of California, Berkeley School of Law who manually reviewed takedown requests: Sérgio Alves, Jr.; Christina Farmer; Shaina Hyder; Alicia Intriago; Tigist Kassahun; Shweta Kumar; Leighanna Mixter; Smita Rajmohan; and Kirsty Watkins. Lydia Anderson-Dana provided excellent research assistance in the final stages of the project. EXECUTIVE SUMMARY ..................................................................................................................1 I. INTRODUCTION AND SUMMARY OF FINDINGS .......................................................................7 II. LEGAL BACKGROUND AND NOTICE AND TAKEDOWN’S EXPANDING REACH .......................15 A. Statutory Language and Debating the Allocation of Responsibility ............................... 15 B. Expansion of the DMCA Framework .............................................................................. 19 1. Repurposing Notice and Takedown for Other Problems and Extending it to Tertiary Providers Through Private Agreements ............................. 20 2. The DMCA’s International Reach ............................................................................ 21 III. STUDY 1: OSP AND RIGHTSHOLDER ACCOUNTS OF NOTICE AND TAKEDOWN IN EVERYDAY PRACTICE ...............................................................25 A. Methods ........................................................................................................................... 26 B. A Fundamental Safe Harbor, and a Split in Practice ...................................................... 28 1. Stability Concerns ...................................................................................................... 30 2. Automation and the Professionalization of Notice Sending ..................................... 31 a. Design and Use of Automated Detection Systems .............................................. 34 C. Notice and Takedown in Operation ................................................................................ 36 1. Statutorily Required Statements and the Emergence of Web-Forms ........................ 36 2. Locating Infringing Content: A Complicating Factor ............................................... 38 3. Evaluating the Substance of Claims .......................................................................... 40 4. Counter Notices: Inadequate and Infrequently Used ............................................... 44 5. Repeat Infringer Policies and “Strikes” ...................................................................... 46 6. Transparency Reporting and Public Archiving of Notices ........................................ 49 D. Divergence in Takedown Practice: Moving to DMCA Auto, DMCA Plus, and Beyond .. 52 1. From DMCA Auto to DMCA Plus Enforcement Measures ..................................... 53 a. DMCA Auto Practice .......................................................................................... 54 b. Transitional Practices: Trusted Sender Programs and Direct Takedown Privileges ...54 c. DMCA Plus Practices .......................................................................................... 55 i. Hash-Matching and Site-Wide Removal ...................................................... 56 ii. Fingerprinting and Filtering ........................................................................... 57 iii. Staydown ....................................................................................................... 60 iv. Side Agreements ............................................................................................ 60 2. “Para DMCA” Measures: Site Blocking and Tertiary Providers ................................ 62 a. Site Blocking ........................................................................................................ 62 b. Privately Agreed “Best Practices” for Tertiary Intermediaries ............................. 63 E. Compliance, Competition, and Market Power ................................................................ 64 1. Case Study: SoundLocker .......................................................................................... 66 F. The Role of Search Services ............................................................................................ 67 1. Case Study: The Disproportionate Role of Google Web Search ............................... 70 G. Discussion: Study 1 .......................................................................................................... 73 IV. STUDIES 2 AND 3: QUANTITATIVE ANALYSIS OF TAKEDOWN REQUESTS .............................77 A. Data and Methods ........................................................................................................... 78 1. The Lumen Dataset ................................................................................................... 78 2. Database, Coding Engine, and Sampling Methods ................................................... 80 3. Coding Methods and Data Processing....................................................................... 80 B. Study 2: In Six Months of Lumen Notices, an Automated Onslaught to Google Web Search ........................................................... 81 1. Overall Findings: Automation, Major Senders, and Google Web Search Dominate .. 82 a. Sender Characteristics: Agents Dominate, and a Shift to Movies, Music, and Adult Content Industries .................................................................. 83 i. Third-Party Agents Send the Most Takedown Requests to Google Web Search .. 83 ii. A Major Rise in the Entertainment Industry’s Use of Takedown Requests .. 84 b. Target Site Characteristics: Over Two-Thirds of Requests Refer to Torrent or File Search Sites .................................................... 86 2. Questions of Accuracy and Substantive Judgment ................................................... 87 a. Mistargeting 1: Some Senders Failed to Update Their Algorithms, Continuing to Target Shuttered Sites .................................................................
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