Two studies that came out recently provide an interesting insight into the impact that takedown notices and cease and desist letters have on alleged infringers of copyrighted materials. In short, both studies reveal that rather than object or investigate the merit of the letters, more often than not the accused give in without fighting at all.
The first study, done by the Free Expression Policy Project (FEPP), looked at 131 cease and desist letters collected by the Chilling Effects Warehouse. Their goal was to determine the effect that cease and desist letters have on fair use. Copyfight in, “How Do C&Ds Effect Fair Use?”, correctly noted that the sample taken by FEPP was certainly too small to be entirely accurate but nonetheless their findings are very useful.
The FEPP found that DMCA take down letters sent to ISPs were more likely to have a chilling effect than letters that were sent to individual wrongdoers. This is because §512 of the DMCA (a draconian provision even by my standards), states that once ISPs receive a take down letter from a copyright owner saying that they are hosting copyrighted material, ISPs must “expeditiously comply” or face liability. Obviously the problem is that without adequate time to research fair use of the materials in question, there is a real chance that the use was entirely legal (the second study below illustrates an interesting result of DMCA-type threats). While the FEPP found that DMCA letters to ISPs were more likely to chill fair use, their study cited still maintained that letters to individual “wrongdoers” were likely to obstruct fair use as well. (See FEPP's complete study here).
The problem with the “comply or else” nature of C&Ds in terms of copyright infringement as highlighted by the FEPP study is that either: (A) ISPs must comply without considering fair use or (B) individuals are often not versed on the current state of cyberlaw and fair use, and the threat of a lawsuit is often too intimidating to even consider standing up for material arguably within the niche of fair use. While you won’t find me too sympathetic for an ignorance plea, it seems that there is a fair and sensible step that should be taken - for a C&D to be considered “authentic” the C&D should have to address the possibility that the alleged material might be considered fair use.
The second study was conducted by a Dutch civil rights organization, Bits of Freedom (BOF). BOF sought to illustrate the negative effects that unsubstantiated threats have on ISPs. A Eurpoean E-Commerce statute that appears very similar to §512 of the DMCA seems to be at fault. The directive exempts providers from liability only if: they have no actual knowledge of the “apparent” illegal conduct AND they act expeditiously to remove the content. Copyfight described BOF’s project:
BOF put up a text by a famous Dutch author, written in 1871 to accounts with 10 different ISPs. Then they made up an imaginary society that is supposed to be the copyright holder of the author in question, and sent copyright infringement takedown notices to those 10 ISP via email (using a Hotmail account). 7 out of 10 ISPs took down the material, sometimes within hours and without even informing the account holder. One ISP doubted the legitimacy of the claim and asked for some proof that the alleged plaintiff was in fact the copyright holder. Yet another ISP actually realized that copyright had long since run out on the work.
BOF concluded that, “it only takes a Hotmail account to bring a website down and freedom of speech stands no chance against Texan-style private ISP justice.” I might not like the Texas reference but I do agree that there needs to be steps taken to expose bogus suits, impose greater liability for wrongful takedowns, and allow for an ISP investigative period. ISP employees should have the knowledge to evaluate legitimate claims and the backbone to stand up to such obviously frivolous letters, but in the face of laws that constrain their options to such an unreasonable agree I didn’t find the results of these two studies that surprising.
The whole idea of the takedown provisions is that ISPs should not have to determine for themselves who is right or wrong before taking action. (I mean, were the European ISPs really supposed to take time out of their busy schedules to research the life history of Eduard what's-his-name? If ISPs had such an obligation, everyone would be complaining about how onerous *that* is.) Instead, their task is simply to preserve the status quo ante -- ante the website going up -- immediately, until the whole thing can be sorted out in court. And almost everyone forgets the counter-notification process, which means that a 10- to 14-day clock for plaintiffs starts ticking as soon as the prospective defendant sends a form letter back to their ISP.
The theory behind Section 512(c) -- and it's not outlandish -- is that an infringed work can be copied and redistributed so quickly over the Internet that postponing relief until the facts are sorted out, either by the ISP or a court, effectively denies plaintiffs an effective remedy. True, it's not a particularly elegant solution, but it's a reasonable way to grapple with the changed circumstances posed by the Internet.
Posted by: Rolo Timassie | October 22, 2004 at 12:34 AM