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Efficient Process or "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act

by Jennifer M. Urban
Director, Intellectual Property Clinic
University of Southern California
and
Laura Quilter
Non-Resident Fellow, Samuelson Clinic
University of California, Berkeley

A detailed study the DMCA takedown process under Section 512. Click here to read the entire study in PDF format (16 pages) or Click here to read the entire study in HTML format.
The study aapears to have been made in 2004-2005. Most of the information was provided by Google who shared data. An ideal source of information would have bee eBay but we all know that eBay will not share information. "Everything" in the way of information about eBay, its business, seller, buyers, location of bathrooms, etc, is all proprietary. We guesstimate that the eBay figures for improper takedowns is much higher than 30%. This study only covers copyright infringement and not trademark or patent infringment claims.
According to the study:
The study observed a surprisingly high incidence of flawed takedowns:
Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);
In addition, we found some interesting patterns that do not, by themselves, indicate concern, but which are of concern when combined with the fact that one third of the notices depended on questionable claims:
Over half-57%-of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
On page 5, "We have found little evidence of either counternotice use or putback."
The DMCA does not require the OSP to inform the alleged infringer of the counter notice option. Indeed, eBay does not inform sellers of the option and makes it very difficult for a seller to find one. Then eBay will not accept a counter notice unless the takedown was for ONLY alleged copyright infringement.
Page 5 continued:
If notices are generally sent when copyright infringement is clear-cut-the assumption behind the positive story of the DMCA-Section 512 may represent an efficient way to clear infringing materials from the Internet. If this is case, then shifting the burden to alleged infringers and costs to OSPs may represent a useful compromise. On the other hand, if notices are sent when copyright infringement is alleged but unclear, or defective notices are the norm-the assumption behind the negative story of the DMCA-Section 512 may represent a wolf in sheep's clothing, allowing cheap, expeditious, and unchecked removal of expressive material from the Internet.
On page 9:
512(c) senders in our data set are often small Internet businesses. A large percentage of Google search notices-55% of the Google 512(d) notices-are competition-related. Entities send these notices to request the removal of links to their competitors.9 (This phenomenon is discussed further, below.) The software and game industries sent 23% of the 512(c) notices (70 unique notices). These were largely related to circumvention of technological protection measures; a significant percentage included questionable copyright claims, including license restrictions, resales, game "cheats", and the like.
On page 10
Examining the characteristics of the targets of the notices-the alleged infringers-we found that 41% of all Google notice targets can be classed as competitors of the complainants. Fig. ES-4. This is particularly significant for Google 512(d) complaints regarding links in the index, where 55% of all notices relate to competitors. A significant percentage of the 512(c) and (d) notices sent to Google-21%-target hobbyists, critics, and educational users.