Notice-and-Takedown

Authors: Luã Fergus and Laila Lorenzon

Notice-and-takedown is a process to deal with potential infringing content based on the practice of sending an extrajudicial notification to the content provider and the immediate removal of the allegedly infringing content by the provider, without the need for a prior court order or the possibility of counter-notification, before or after the content removal. Under such a mechanism, the provider may be liable if it did not remove the content immediately.

This mechanism has become predominant on the internet thanks to the Digital Millennium Copyright Act 1998 (DMCA), a U.S. law that limits the liability¹ of online service providers for copyright infringement caused by their users if they promptly remove the offending content after being notified of an alleged infringement by copyright owners or their representatives (Section § 512, DMCA).

The enactment of this legislation immediately provoked similar adoptions in other countries², but nations that remained neutral were also regulated by the DMCA, as the major platforms apply this legislation globally, disregarding local copyright laws. Online platforms frequently use DMCA to establish a “three strikes” policy, a graduated response³ system that consists of three warnings to the user about posting copyrighted material, generating a serious penalty after the last warning, such as account deletion.

Explaining the relationship between this removal regime and the DMCA is relevant because notice-and-takedown mechanisms have serious problems, for instance:

• offer serious risks to freedom of expression online, encouraging the arbitrary removal of content;
• allow short-term censorship of material whose timing is crucial, like election period.

National legislation lays out several hypotheses in which works protected by copyright can be used without the need for authorization by the copyright owner. However, it is not uncommon for copyright infringement to be the argument used for purposes of censorship, when the use of that work would be potentially lawful – which is not always easy to determine.

In big digital platforms, the responsibility for assessing whether the posted contents comply with copyright rules is an artificial intelligence tool (e.g., YouTube’s Content ID) or not. This mechanism was created to analyze user-generated content in search of excerpts of copyrightable works. Record companies and major film studios send copies of their original works, and the system compares numerous excerpts with what is being shared on the network to find illegal copies on the platforms. The discussion about the limits of these automated tools came to light after several accounts had their contents blocked or deleted on the platforms. The problem lies in the so-called false positives, that is, when the filter allows for the claim of copyright even under lawful conditions, such as criticism and parodies.

Besides that, copyright holders can also commit abuses in the private notification procedure, as documented by the EFF’s Takedown Hall of Shame project⁴ – and, without judicial review, the platform has incentives to remove content when it receives the notification, so as not to take the risk of being held responsible if it decides not to remove content that may be considered unlawful in a lawsuit. Users can file a lawsuit, too, if they understand that the removal has harmed their rights, but they have little incentive to do so and are usually the most economically fragile part⁵.

References

1. Article 19. (2013). Internet intermediaries: Dilemma of Liability. Available at:  https://www.article19.org/wp-content/uploads/2018/02/Intermediaries_ENGLISH.pdf.
2. de Souza, A., Schirru, L. (2016). Os direitos autorais no marco civil da internet. Liinc em Revista, 12(1). Available at: http://revista.ibict.br/liinc/article/view/3712/3132.

   Abranet. (2011). Contribuição para Aperfeiçoamento do Anteprojeto da Lei de Direitos Autorais.

   Valente, Mariana (2019). Direito autoral e plataformas de Internet: um assunto em aberto. Available at: https://www.internetlab.org.br/pt/especial/direito-autoral-e-plataformas-de-internet-um-assunto-em-aberto/.

3. Graduated Response. About Graduated Response. Available at: http://graduatedresponse.org/new/?page_id=5.
4. Electronic Frontier Foundation – EFF. Takedown Hall of Shame. Available at: https://www.eff.org/pt-br/takedowns.
5. Madigan, Kevin (2016). Despite what you hear, Notice and Takedown is Failing Creators and Copyright Owners. Available at: https://cpip.gmu.edu/2016/08/24/despite-what-you-hear-notice-and-takedown-is-failing-creators-and-copyright-owners/.