The Notice and Takedown Effect

Although Bill C-60 isn' t going anywhere given the current Parliamentary situation, digital copyright reform will be back once the dust settles.  When it does, the proposed notice and notice system will undoubtedly come under attack, with groups such as CRIA arguing that a DMCA notice-and-takedown system (or even a notice and termination approach) is preferred.

CRIA has argued the DMCA system works very well, citing statistics that suggest that of the thousands of notices, only a handful have resulted in a disputed claim.  I' ve argued elsewhere that the system creates a free speech and competition chill with a "shoot first, aim later" approach.  A study has just been released in the U.S. that appears to confirm concerns that the DMCA notice and takedown system is rife with errors and problems. Jennifer Urban of USC's Intellectual Property Legal Clinic and Laura Quilter of UC Berkeley's Boalt Hall have released the summary report examining over 900 DMCA takedown notices collected from the Chilling Effects project.  Their findings?

  • Thirty percent of notices demanded takedown for claims that presented an obvious question for a court such as fair use arguments or claims regarding work not subject to copyright    
  • Notices to traditional ISP' s included a substantial number of demands to remove files from peer-to-peer networks which are not covered by a takedown system
  • One out of 11 included significant statutory flaws that render the notice unusable
  • Over half – 57% – of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors.  

A full report is coming in the spring, but in the meantime, the summary is a must read for policy makers facing pressure to drop the Canadian notice and notice approach or addressing C-60's search engine provisions which are subject to precisely this form of abuse.

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