Study calls for DMCA review
p2p news / p2pnet: A favourite practice of the Big Seven movie studios is to order their MPAA (Motion Picture Association of America) to serve Cease-and-Desist letters on BitTorrent web page owners, who then usually take their sites down.
The impression given is a judicial process has been completed under which the sites are blocked because they’ve been found ‘guilty’ of breaking some kind of law.
But a new study has found close to a third of 876 DMCA takedown notices collected by the Chilling Effects Clearinghouse project were unwarranted.
It included all notices submitted to Google since March, 2002 (734 as of August, 2005) and 142 submitted, usually by recipients, to Chilling Effects through online web forms.
‘Pulling users` information’
To receive safe harbor, “online service providers (OSPs) respond to Cease-and-Desists from copyright complainants by pulling users` information – web pages, forum postings, blog entries, and the like, off the Internet,” say Jennifer M. Urban, director of he intellectual property clinic at the University of Southern California, and Laura Quilter, non-resident fellow of the Samuelson Clinic at the University of California, Berkeley. And in the case of search engine providers, the links to complained-of sites are yanked from the index, meaning the site disappears from the search results pages, they say.
Moreover, the C&Ds are troubling in and of themselves because, “merely providing a link is unlikely to create secondary liability for the search engine, in the first place” and because the OSP is reacting to a private C&D letter that earns it a safe harbour, “no court sees the dispute in advance of takedown”.
In their a summary report, “we traced the use of the Section 512 takedown process and considered how the usage patterns we found were likely to affect expression or other activities on the Internet,” say Urban and Quilter. “The second level of analysis grew out of the fact that we observed a surprisingly high incidence of flawed takedowns.
They give as examples the facts that:
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);
Notices to traditional ISP`s included a substantial number of demands to remove files from peer-to-peer networks (which are not actually covered under the takedown statute, and which an OSP can only honor by terminating the target`s Internet access entirely); and
One out of 11 included significant statutory flaws that render the notice unusable (for example, failing to adequately identify infringing material).
In addition, they continue, “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; ?? Over a third – 37% – of the notices sent to Google targeted sites apparently outside the United States.
‘Lion`s share of notices’
“Perhaps surprisingly, neither 512(c) search nor 512(d) hosting notices show significant use by the movie and music industries,” says the study.
“While these industries anticipated and helped draft the notice and takedown provisions in 512(c) and (d), our data show them only rarely using these provisions. Corporate and business entities are generally responsible for the lion`s share of notices, but of the 512(c) notices specifically, only 6% were sent by the movie and music industries combined. The lack of entertainment companies in our set may, at least in part, be because they choose not to send search engine complaints; however, we suspect that is not the entire story.
“While it does not send 512(c) notices as often as expected, the movie industry, (followed by the computer software and games, and then music, industries) sends the vast majority of 512(a) takedown notices – where takedown is neither required nor possible, but where complaints about an alleged infringer might convince the OSP to terminate the alleged infringer`s service.
“Our data do not reflect the very high numbers (in the tens of thousands annually) of notices received by larger ISP`s, but the 512(a) trend apparent in our very limited data has been anecdotally verified through a confidential interview discussing numbers from larger OSPs. We look forward to verifying this empirically with data from ThePlanet.
“If the 512(a) effect is borne out, it seems likely that complaints about infringing movies and songs now focus on peer-to-peer networks, where the OSP acts only as a conduit. This change (unanticipated when the statute was drafted and passed) might explain the lack of the content industry`s use of 512(c) and (d) notices. If true, this suggests that the industry`s concerns about piracy are currently not well-addressed by the notice-and-takedown process.”
The specifics of the data set, “may limit the ability to neatly generalize our findings,” say Urban and Quilter.
“Yet the findings are troubling, and seem to indicate a need to further study, and perhaps revisit entirely, the DMCA takedown process.”
A full research paper version of this study will be published in the March, 2006 edition of the Santa Clara Computer and High Technology Law Journal.
Also read:-
summary report – Efficient Process or ‘Chilling Effects’? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act
November 23rd, 2005 at 10:19 pm
“Yet the findings are troubling, and seem to indicate a need to further study, and perhaps revisit entirely, the DMCA takedown process.”
while this is not news, the empirical evidence presented is yet another feather in the quil(t) of the ever growing mountain of evidence supporting this viewpoint.
TT