The Takedown Project connects research in a larger conversation about the regulation of online expression–focused on but not limited to notice and takedown. This collective discussion of research questions and methodologies will generate new insights and research directions.
Expand All – Collapse AllNotice and Takedown in Everyday Practice
It has been nearly twenty years since section 512 of the Digital Millennium Copyright Act established the so-called notice and takedown process. Despite its importance to copyright holders, online service providers, and Internet speakers, very little empirical research has been done on how effective section 512 is for addressing copyright infringement, spurring online service provider development, or providing due process for notice targets.
The report, Notice and Takedown in Everyday Practice, includes three studies that draw back the curtain on notice and takedown:
- using detailed surveys and interviews with more than three dozen respondents, the first study gathers information on how online service providers and rightsholders experience and practice notice and takedown on a day-to-day basis;
- the second study examines a random sample from over 100 million notices generated during a six-month period to see who is sending notices, why, and whether they are valid takedown requests; and
- the third study looks specifically at a subset of those notices that were sent to Google Image Search.
The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated, “bot”-based systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. The second and third studies revealed surprisingly high percentages of notices of questionable validity, with mistakes made by both “bots” and humans.
The findings strongly suggest that the notice and takedown system is important, under strain, and that there is no “one size fits all” approach to improving it. Based on the findings, we suggest a variety of reforms to law and practice. The legal framework for notice and takedown has not significantly changed over the past 15 years, but the practice has radically transformed.
Notice Coding Engine
The legal framework for notice and takedown has not significantly changed over the past 15 years, but the practice has radically transformed. No one has systematically looked at the impact of automated of both sending and receiving process of notice and takedown. Led by Jennifer M. Urban, Joe Karaganis, and Brianna L. Schofield, The Notice Coding Engine seeks to perform such review, using both machine and manual coding of notices. The project has built a customized database and coding engine to house and add data to millions of individual claims from the Chilling Effects archive, with capacity to add other sets of notices as it grows. Manually coding notices can help researchers answer key questions about how allegedly infringing material is distributed over the Internet, and how and when it is taken down, that cannot be answered with machine coding alone. These tools will help us and other researchers understand these important features of the takedown system as it is used in practice. For example, coding will categorize who is sending notices, claims, the types of content that is uploaded and the types targeted for removal, and actions taken, if any.
Notice and Takedown Survey
The Takedown Project Survey is an attempt to develop as broad a picture as possible of the safe harbor landscape. The DMCA has provided a crucial safe harbor for ISPs and OSPs. Implementation of these safe harbor provisions is widespread, and varies according to the types of services provided. Most attention, and many court cases, are directed to a narrow slice of OSPs, especially large providers. These actors are important to the ecosystem, but are only a part of the highly diverse set of providers who interact with the notice and takedown system. We are conducting surveys of online service providers–including private OSPs, libraries, and universities–to learn more about providers’ experience with the system and about the evolution of copyright notice and takedown practices.
Removing illicit products from online marketplaces: Private enforcement tools as alternatives to court actions
According to the latest figures from Eurostat 65% of internet users in the EU shopped online in 2015, and a large portion of this trade takes place through online marketplaces like eBay, Amazon, Allegro, Groupon and Zalando. The growth in the legitimate online trade is however being paralleled by a growth in the illicit trade where the marketplaces are used by vendors to sell illicit goods such as counterfeited software, clothes and mobile phones and unauthorized sale of subscription drugs such as growth hormones.
Such illicit trade has significant, negative consequences for the holders of the rights that are being infringed by way of lost revenues and bad will. How to reduce or eliminate this trade are therefore an important and a prioritized issue for the decision makers as well as for the businesses that are affected by the illicit trade. The overall purpose of the Post Doc project is to provide input to the stakeholders that are engaged in these current efforts by analyzing and assessing the legal implications of one of the tools in the toolbox namely the “notice and takedown” procedures that are applied by most – if not all – of the operators of the digital marketplaces.
Regulating Internet Content Through Notice-and-Takedown
This project seeks to understand how online intermediaries respond to takedown requests in three areas: copyright, defamation, and abusive speech (particularly racial and gendered hate speech). It aims to create new knowledge about how intermediaries are influenced by both governments and private actors to regulate internet content, and how due process and freedom of speech can be protected.
This research is funded by the Australian Research Council project DE160101542.
Accountable Not Liable: How Far Should Mandatory Cooperation of Intermediaries Go?
The European Union law increasingly forces Internet intermediaries to work for the right holders by making them accountable even if they are not (tortiously) liable for actions of their users. Thus even intermediaries who diligently deal with illegitimate content on their services, can be still subject to a forced cooperation to a benefit of right holders. Martin Husovec’s work studies the gap between liability and accountability caused by derailing injunctions from the tracks of the tort law. See more here.
The Chilling Effects Clearinghouse
The Chilling Effects Clearinghouse collects and analyzes legal complaints about online activity, helping Internet users to know their rights and understand the law. Chilling Effects welcomes submission of letters from individuals and from Internet service providers and hosts. These submissions enable us to study the prevalence of legal threats and allow Internet users to see the source of content removals.
Chilling Effects aims to support lawful online activity against the chill of unwarranted legal threats. Study to date suggests that cease and desist letters often silence Internet users, whether or not their claims have legal merit. The Chilling Effects project seeks to document that “chill” and inform C&D recipients of their legal rights in response.
The Chilling Effects Clearinghouse is a unique collaboration among law school clinics and the Electronic Frontier Foundation. Conceived and developed at the Berkman Center for Internet & Society by Berkman Fellow Wendy Seltzer, the project is now supported by clinical programs at Harvard, Berkeley, Stanford, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics, and the EFF.
Control-Alt-Delete: The Right to Erasure as a Tool to Empower Data Subjects Online?
Due to the exponential growth of information & communication technologies (ICTs), huge amounts of personal data are being collected, stored and processed every day. The Internet in particular played a crucial role in creating a ‘society that never forgets’. Not only are individuals sharing more and more data themselves, online service providers are becoming increasingly powerful in surreptitiously collecting and processing information as well. This evolution dramatically shakes up the balance of interests pursued by the European Data Protection framework. Arguably, this framework – consolidating citizens fundamental right to data protection with other fundamental rights and interests (e.g. business and freedom of information interests, internal market protections, etc.) – is not adjusted to the current information society. As a consequence, there is a growing lack of citizens’ control over their personal data. The right to erasure has been presented as one of the ultimate tools to restore this control imbalance.
The PhD research, led by Jef Ausloos, draws parallels between the right to erasure under data protection law and traditional takedowns under – for example – copyright law. It will, identify and evaluate the relevant interests and rights at stake in the context of data protection based takedown requests (i.e. right to erasure). This will enable policymakers, practitioners, judges, corporations, etc. to make an appropriate balance when personal data is requested to be removed.
The European Harmonization of Intermediary Civil Liability for Online Copyright Infringement: A Tort-Inspired Approach
This research, led by PhD Candidate C.J. Angelopoulos, seeks to explore the liability in Europe of online intermediaries for secondary or indirect copyright infringement, i.e. where the material act of infringement is committed by a third party, regardless of the applicability of the safe harbor regime. It will therefore begin with an investigation of the current law relating to intermediary liability for copyright infringement in the legal jurisdictions of England, France and Germany, these three jurisdictions representing each of the three major European extra-contractual liability traditions. The relationship between these rules and national substantive tort principles in the selected countries will subsequently be examined. This shall be done with a view to uncovering common European tort principles that can potentially lead the way to a harmonized, clear and comprehensive European liability regime of intermediaries for copyright infringement. See more about the project and IViR here.
Online Copyright Enforcement in the Shadow of the Law
The purpose of this study is to map copyright enforcement practices in Israel, focusing on the role of online intermediaries in shaping the online enforcement regime. Prof. Niva Elkin-Koren, Dr. Sharon Bar Ziv, Nati Pearl, and Uri Sabach, are leading research. The study explores legal strategies of rightholders, and tracks lawsuits, settlement agreements, and ex parte hearings involving online infringements. It further explores the enforcement practices in the shadow of law, including actual enforcement practices of online intermediaries, “voluntary actions” and Notice and Take-down procedures.
Mapping these strategies provides a comprehensive picture of the processes at work in online copyright enforcement. It further provides a ground for comparison between different enforcement strategies, exploring their ramifications for due process, legal oversight and civil rights. See more about the project and HCLT here.
Platform Responsibility Project
The Dynamic Coalition on Platform Responsibility is an issue-focused group engaged in a multi-stakeholder effort to produce model contractual provisions, which can be incorporated in ToS in order to provide intelligible and solid mechanisms to protect platform-users’ human rights and foster platform providers’ responsibility. It is an established structural element of the United Nations’ Internet Governance Forum, membership of which is open to any interested party upon registration at email@example.com
Private enforcement of public policies: Freedom of expression in the era of online gatekeeping
The free flow of information on the Internet has brought an enormous development of the communication methods between individuals. It results in a democratization of the web that is able to influence social and political interactions. At the same time it facilitates distribution of illegal content such as defamatory material, child pornography, or copyrighted material. The only points of control for online content, which have the means to eliminate access to objectionable material, are Internet intermediaries. For this reason governments increasingly try to assign them a role of ‘gatekeepers’. This means co-opting private parties to realize public policy objectives through a number of notice-and-action mechanisms. Such ‘responsibilization’, however, could lead to interference with freedom of expression, as embodied in art. 10 ECHR.
This PhD dissertation by Aleksandra Kuczerawy seeks to ascertain what safeguards should be implemented to ensure compliance of one of the mechanisms, namely notice-and-take down procedure, with the freedom of expression. See more about the project here.
Regulatory Chilling Effects Online: Three Case Studies
This project explores regulatory chilling effects online– its theoretical and empirical basis– including both factors that may influence those effects, as well as legal, regulatory, and normative implications. The project pursues this exploration through three case studies, one of which examines a “chilling effects regulatory scheme”, that is, the Digital Millennium Copyright Act’s notice and take-down scheme, and aims to track subtle forms of “chilling effects” caused by this regulatory scheme. It does so by, among other things, tracking certain targeted blogs and mini-blogs using DMCA notices obtained from the Chilling Effects Database. The project overall– and this case study in particular– fits well within the important aims and pubic interest objectives of The Takedown Project.
The State of the Discordant Union: An Empirical Analysis of DMCA Takedown Notices
By conducting a census on half-a-million takedown notices and more than 50 million takedown requests in its datasets, this paper takes a detailed and systematic look at the state of the takedown process from an empirical perspective. Daniel Seng examines the use and issuance of takedown notices by copyright owners and reporters and the response of service providers to them. It further studies the relationship between the notices and requests and safe harbor provisions of the Digital Millennium Copyright Act, and identifies ways in which the takedown process can be further improved to preserve the diversity and freedom of the Internet.
The World Intermediary Liability Map Project
The World Intermediary Liability Map is a SILLab project, which aims to create a graphic interface for intermediary liability legislation and caselaw worldwide. Led by resident fellow, Giancarlo Frosio, the project will gather relevant information for each country page by relying on a network of contributors including SLS students, alumni and other international researchers. SILLab is an intermediary liability focus area project within Center for Internet and Society at Stanford Law School.
Takedown Project – Research Network Workshop
May 2, 2014 – Berkeley, California
The Takedown Research Network held an all-day workshop at UC-Berkeley to share ongoing and planned projects, research methodologies, and challenges and successes. Researchers discussed ongoing projects, shared tools and data sets useful in studying takedown, discussed current policy debates and reform efforts, and identified next steps to continue to leverage efforts across jurisdictions and research groups.
December 13, 2013 – Cape Town, South Africa
Rules governing the liability of online service providers for copyright infringement are likely to be reexamined in a number of jurisdictions in the coming years, including in the US and EU. In part, this is a response to changes in the landscape around intermediary liability, such as the use of robots and automated systems by all participants in the enforcement ecology – pirates, enforcement groups, and service providers. The research community on this issue remains small and in need of better coordination and knowledge sharing. This meeting is for those interested in being part of that research community. Slides available here.
Intermediary Liability Workshop I at Institute for Information Law, University of Amsterdam (IViR)
June 28-29, 2013 – Amsterdam, Netherlands
Hosted in conjunction with an IViR workshop on intermediary liability, this workshop will convene a small group of European researchers to identify and connect major research.