Due Process, I Don't Think So

Casey, on the www.maisonbisson.com blog summarized an interesting report on an experiment done by a Dutch civil rights organization called Bits of Freedom. The experiment was to investigate the notice and take down procedure of multiple Internet service providers in Europe. Under the European law, ISP’s can be held liable for customers websites that illegally use copyrighted work, unless they act fast enough to remove the information from public view.

Under the European E-Commerce directive internet hosting providers risk liability for apparently illegal content from their customers. Once they are notified, they should take immediate action to block or remove the content.

The European directive has different liabilities for three different categories of providers:

In case of mere conduit (access provisioning) and caching, providers are exempted from any liability. In the case of hosting, providers are only exempted if they have no actual knowledge of 'apparent' illegal content and, if so, act expeditiously to remove the content.

This is compared in the report to the Safe Harbor provision for providers in the DMCA §512 when confronted by notification of customers copyright infringement. As summarized in the report:

The legal safe harbour consists of 5 elements.
• a complaint must identify himself and the infringements exactly
• plaintiff and the customer must act 'in good faith', on penalty for perjury.
• the provider must block the material upon receipt of the complaint and inform the customer
• materials must be put-back in 10, maximum 14 business days after a counter notice
• identification data can only be obtained with a subpoena

Bits of Freedom points out that the European directive:

Compared with these Safe Harbour provisions, the European legislation leaves
plenty of room for doubt and misguided judgement[sic] by providers. There are no criteria to validate complaints and counter notices and there are no arrangements for the hand-over of customer data, besides general privacy principles that do allow voluntary hand-over. More-over there is no obligation in Europe to inform the customer and there are no legal guarantees to protect the freedom of speech.

Bits of Freedom questioned how much effort is put forth by the providers to protect free speech? How much investigation is done of the allegations before taking the content down? Do providers ask their customers to respond before the information was taken down?

Bits of Freedom decided to do an experiment to answer these questions. They started by posting a text from an 1871 famous Dutch author, whose work was well within the public domain, on 10 different ISP’s. Subsequently the organization signed up for free hotmail accounts and sent notices to the ISP’s “representing” the copyright holder warning the ISP that the content of the website they were hosting was infringing on their copyright, and that immediate action should be taken to remove the content from the webpage.

There were varied responses, but totaled to about a 70% take down rate. Out of the three companies that did not take down the content only one company showed evidence that they looked at the webpage and realized that the content was out of copyright. The seven companies that did take down the content did not give any evidence of researching the credibility of the complaint and did not give the customer much time to respond, the shortest period being three hours.

In the report, Bit of Freedom suggests that more effort should be made by the ISP’s to investigate these claims, train their staff about copyright law, and/or hire attorneys to deal with these issues. Bit of Freedom wants the ISP’s to fight harder for freedom of speech.

Although the fact is, the easiest and cheapest method for the ISP to save itself from being liable is to just remove the content. ISP’s cannot afford to hire a full time attorney to deal with copyright infringement claims, nor should they have to fund such an effort. This cost will just be passed onto the consumer, and this will hurt the ISP’s business. It seems that anyone can make this type of claim, and the ISP will have to spend hundreds of thousands of dollars investigating them. I think a better solution would be to have the ISP’s qualify certain agencies or law firms that complainants can pay to research the claim, or at least show a prima facie case of infringement before a letter is sent to the ISP.

It would be interesting to do a similar type of “Dutch” experiment here in the US on DMCA take down type letters. Although, a post by Donna Wentworth How Do C&Ds Affect Fair Use? pointed me to a similar type report by Tricia Beckles and Marjorie Heins of an investigation into the “effects” on fair use of the take down notices sent by The Chilling Effects organization. Which is a:

joint project of the Electronic Frontier Foundation and six law school clinical programs, serves as a resource for those who want to know what the law says about areas such as fan fiction, copyright and fair use, domain names, trademarks, anonymous speech, and defamation on the Internet. The Web site's depository contains almost 800 cease and desist letters, going back to 1997.

This is just a preliminary report of a small sample of the cease and desist letters sent by the Chilling Effects organization, but their findings show they can:

infer that cease and desist letters sometimes -- but not always -- have chilling effects on speech that might qualify as fair use. Critical factors in determining whether the recipient of such a letter will comply seem to include awareness that fair use provides a defense; support from the community; and a non-risk-averse temperament.