New Company Transparency Reports Help Quantify DMCA Abuse
from the it's-a-widespread-problem dept
It's a sign of the times that online companies’ transparency reports are starting to include a new section: the Hall of Shame. Automattic, the company behind WordPress, is the latest to do so, highlighting examples of copyright and trademark overreach by prominent figures like Janet Jackson, as well as more local businesses, organizations, and individuals attempting to silence criticism and other noninfringing speech. It even highlighted one example we've written about—and even dedicated a short video to—in which a baked goods company misused trademark to go after bloggers talking about derby pie, a common regional dessert in the Southern U.S. And WordPress is only the latest company to name-and-shame takedown abusers—the Wikimedia Foundation made a major splash last month when it highlighted the copyright saga behind a notorious monkey selfie.
We've kept up a Takedown Hall of Shame of our own for years. But these cases of egregious abuse tell only part of the story, and transparency reports also help call attention to a more subtle issue: a large percentage of takedown requests that do not result in content removal. That is to say, services routinely receive large numbers of bogus takedown demands.
There's a real trend here. According to the latest numbers, Twitter does not comply with nearly 1 in 4 takedown notices it receives; Wikimedia complies with less than half; and WordPress complies with less than two-thirds. Each organization explains in its report that the notices with which they don't comply are either incomplete or abusive.
When companies choose not to take down content because the notice is abusive, that's a way of standing with their users, and it's a significant decision. The bargain in the DMCA is straightforward: as long as services comply with takedown notices that meet the statutory requirements, they're granted a "safe harbor" from any legal liability for copyright infringement that might otherwise arise from their hosting of user content. This had led some companies to take the short-sighted approach of removing all content for which they receive a takedown request, even if the request is defective or the content is obviously non-infringing. Since the law was enacted a decade and a half ago, some people have used the takedown mechanism as a censorship tool—sending careless or fraudulent notices in an attempt to silence lawful speech, and hoping that online services will comply just to stay in that safe harbor. And although the DMCA includes a mechanism to punish certain fraudulent takedown requests, the provision has proven difficult to enforce.
In other words, there's a lopsided legal incentive that frequently results in services taking down non-infringing speech. The companies that stand up to bogus requests deserve kudos for doing so, and transparency reports are a good place to highlight that user-friendly behavior while also providing data about how often people are trying to abuse the DMCA.
The data from the transparency reports also supports the common understanding that users send counter-notices in only a relatively tiny number of cases. For example, Automattic reports that it got only 44 counter-notices for the 3,630 takedown notices that it received. After a short waiting period, a company can restore content for which it has received a valid counter-notice without losing its safe harbor protection. This is an important way for users to restore their non-infringing speech to public view.
Supporters of the status quo argue that the low rate of counter-notice means that most notices legitimately target infringement. But that suggestion doesn't take into account how confusing and difficult the counter-notice process can be, and the fact that many users are intimidated by the requirement that they agree to be sued in federal court in case the rightsholder wants to claim copyright infringement (even though this is already true for users who are subject to the jurisdiction of U.S. federal courts). Users also fear the massively disproportionate statutory damages available to copyright claimants and the significant expense of defending even a winning copyright case, and allow themselves to be silenced rather than facing the expense and risk of vindicating their speech in courts.
The notice-and-takedown process is supposed to balance the interests of rightsholders, online platforms, and the general public, and transparency reports are an important mechanism to verify that's happening. The numbers paint a troubling picture. Across the Web, we've seen report after report that the number of takedown notices sent to online services is skyrocketing. These three latest transparency reports support that notion, with Twitter in particular reporting a nearly 40% increase in just six months.
Taken together with the number of bogus takedowns and the rarity of counter-notices, it's clear that the task of defending free speech is increasingly falling on online services. The notice-and-takedown system unfortunately provides yet another example of how aggressive mechanisms of copyright enforcement are abused to censor legitimate content. We applaud those service providers who stand up to this abuse on behalf of their users.
Cross-posted from Electronic Frontier Foundation's Deeplinks blog.
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Filed Under: abuse, censorship, copyright, dmca, transparency, transparency reports
Companies: automattic, google, tumblr, wikimedia foundation
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Re:
Yes, there are abuses, and they need to be dealt with. However, the other option is trash DMCA, and shut down most of the internet the next day because Youtube and everyone else will be locked up in copyright lawsuits for the next decade.
You may not like DMCA - but the internet today exists because of it.
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Re: Re:
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Re: Re:
According to a 2009 study done by Google on DMCA takedown requests, (see footnote 3 on page 9,) 57% were made by businesses targeted directly at their competition, and 37% were not valid copyright claims in the first place. Depending on how much overlap there is between the two categories, that suggests that as few as 6% of all takedown notices are legitimate attempts to stop piracy.
Anything that's abused 94% of the time that it gets used is something you do not want around. The Internet existed before the DMCA, and repealing it would greatly improve things for everyone. (Except the parasites, of course.)
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Re: Re: Re:
We removed 97% of search results specified in requests that we received between July and December 2011.
https://www.google.com/transparencyreport/removals/copyright/faq/#index_size_estimates
They then point the study you really wanted:
http://lquilter.net/pubs/UrbanQuilter-2006-DMCA512.pdf
If you read the whole study (it's quite long) is that the "not a valid claim" includes things that would fall potentially fall under fair use. However, they seem to suggesting anything hobbyist, or anything that is a blog would almost automatically fall into that category, which doesn't make a whole lot of sense.
The competitive issue is pretty normal - those who seek to profit from piracy are often in competition with the original sources. Their definition of competition seems to be anyone in a somewhat related field.
Coming to a 6% conclusion is laughable on it's face. I don't even thing TorrentFreak would run with a number like that!
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Re: Re: Re: Re:
Your linked page does nothing to disprove the previous poster's link about the (in)validity of the complaints. It merely points out how quick Google acts on them, and how few people file counter-complaints. I'd say most people don't bother because either 1) they didn't notice the link going missing, or 2) they know that counter-complaints are useless.
For example, in my own case where a file of mine was improperly removed from MediaFire, I filed a counter-complaint explaining exactly why the complaint was defective, and nothing came of it. MediaFire did not put my file back online. I doubt I'll ever file another counter-complaint again seeing how useless doing so is. I'll just repost the file under a different name like I had to do anyway.
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Re: Re:
the internet today exists in spite of it
ftfy
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Anomalies, all anomalies!
Quantifying the vast, huge number of anomalies.
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Matching names
Example: I made a port of the old Mac emulator, Basilisk II, for the PSP some time back. It was posted on MediaFire. They got a DMCA notice from an automated service claiming I was posting the MANGA, Basilisk. MediaFire removed my file, and although I protested, it stayed down. I had to repost the emulator with the name changed.
I'm much more careful about the names I give files on MediaFire now, making sure they are just a few letters and numbers so that automated services don't accidentally report them. MediaFire DOESN'T have our back against bogus DMCA claims.
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Re: Matching names
I ran a very popular website for years, on which I would post games (that you played in person with your friends, not electronic or computer games). I had posted one (it was just a set of rules) called "The Poverty Game". A month later I got a takedown notice from some guy in Canada who was selling a board game that happened to have the same name. It bore zero resemblance to the one I put up. The notice was a real piece of work, very aggressive, name-calling, full of fury. He was clearly just doing web searched for the name of his game and getting in an uproar with every hit -- in fairness, my site was the #2 result for the term on Google and his wasn't in the first three pages.
No, I never took my game down. I told the guy to piss off and never heard from him again.
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Re: Matching names
This way, by including BII's copyright license (which you are legally required to do), if someone issues a DMCA takedown, you, Christian Bauer, or any of the "et al" who have contributed to the source code could file a punitive claim against the legal firm who filed the takedown.
If this were done, you'd find that automated systems with no vetting would dry up pretty quickly, and some level of investigation would actually take place.
I'll repeat what I said: the group suffering punitive damages would be the submitter who signed the "perjury" clause, not the owners of the claimed copyright. This means that individuals or companies could still file on their own, and legal firms could still file on their behalf, but the actual filer would be on the hook for the bogus filing.
For GPL works like BII, that COULD mean that every single person who had contributed to the code could individually sue the submitter for damages -- a great protection for GPL'd works as a whole, as no lawyer in their right mind would consider filing a takedown against such a work in the future, and any other company filing on their own behalf would feel the pain pretty quickly.
In the meantime, I recommend tagging this onto filenames of GPL'd software you upload: "DISTRIBUTION_COVERED_BY_INCLUDED_GPL" -- if they still issue a takedown on it after that, submit the story to everyone and start the naming and shaming.
Of course, with all this I'm assuming that you actually followed the law and included the GPL readme file in the archive you uploaded... otherwise, you were actually still breaking copyright law, just not against the people who issued the takedown.
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There needs to be statutory damages available for site owners who have their lawful content fraudulently taken offline.
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Re:
Anyone know if there's ever been a case of a takedown notice being issued "on behalf of" GNU?
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Parker--
How many, or what percentage, of the notices are abusive, as opposed to merely incomplete? That number would be a lot more useful.
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Re:
Oh, wait. It's you; of course it doesn't.
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Anyone can fool the auto-bots
Entries like this on pastebin could cause requests for those pages to be taken down, even though there is nothing infringing at all on the pages http://pastebin.com/VuNHKjnx
More like this could help highlight the issue if done correctly.
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