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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  • identicon
    Anonymous Coward, 18 Sep 2014 @ 9:39am

    Note that the transparency reports only give numbers for obviously defective or abusive notices. How many of the rest should not have been sent?

    reply to this | link to this | view in chronology ]

    • icon
      Whatever (profile), 18 Sep 2014 @ 10:25am

      Re:

      The issue is that while there are some abuses, there aren't very many all considered. Even Google admitted that the vast majority of the DMCA notices they get are valid, the success number lower only because the same page is often reported by many different sources or may have been included more than one in reports from the same rights holder.

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        PRMan, 18 Sep 2014 @ 10:33am

        Re: Re:

        You're right. Maybe the cheaper option for Google would be to take the DMCA to the Supreme Court on First Amendment grounds for silencing free speech more than removing legitimate content.

        reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 18 Sep 2014 @ 11:38am

        Re: Re:

        Google said what? OK, I'm gonna have to stamp the world's biggest [citation needed] on that, because 5 years ago they said the exact opposite.

        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.)

        reply to this | link to this | view in chronology ]

        • icon
          Whatever (profile), 18 Sep 2014 @ 1:56pm

          Re: Re: Re:

          First off, your citation is a bit off the rails. Let's go ask google itself:

          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!

          reply to this | link to this | view in chronology ]

          • icon
            JoeCool (profile), 19 Sep 2014 @ 9:44pm

            Re: Re: Re: Re:

            You're comparing apples to oranges. You ORIGINALLY claimed "Even Google admitted that the vast majority of the DMCA notices they get are valid," which is NOT what your link says. It says "We removed 97% of search results specified in requests that we received between July and December 2011." It does NOT say the complaints were valid, merely that they removed the links. Google further stated (in the same link) that they do so automatically within 6 hours. Then they wait until to see if a counter-complaint is filed.

            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.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Sep 2014 @ 6:08pm

        Re: Re:

        "the internet today exists because of it"

        the internet today exists in spite of it
        ftfy

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2014 @ 9:48am

    the Senate didn't have the balls to sort out 'Bundled TV'! how the hell do you expect them to do anything that they should over copyright claims? just adding in a fine of the same magnitude for false claims as there is for real ones would do, but that is looking at the purple pigeon!!

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 18 Sep 2014 @ 10:28am

    Anomalies, all anomalies!

    What's it's name will say it is all just anomalies.

    Quantifying the vast, huge number of anomalies.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 18 Sep 2014 @ 10:45am

    Matching names

    The most common abuse of the DMCA notice is automated services that merely look for a partial match of a name without considering anything else, or even checking if the file in question has ANYTHING to do with what they're supposed to be protecting.

    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.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 18 Sep 2014 @ 12:34pm

      Re: Matching names

      This is the biggest source of problems, to be sure. But I have a personal experience that shows that it's not just automated systems that cause this issue.

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2014 @ 12:37pm

      Re: Matching names

      I think that the DMCA needs a new clause such that if DMCA notices are filed against content that has clearly labeled the copyright ownership, and the notice is issued by someone not on that list, then ANY of the copyright holders have the right to sue them into oblivion.

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2014 @ 10:52am

    I think the automated services need to be stopped , the copyright holder a person should be be making the compliant .

    reply to this | link to this | view in chronology ]

  • identicon
    Jack, 18 Sep 2014 @ 12:00pm

    If the rest of the states finally passed anti-SLAPP laws and the federal government actually put some teeth into the DMCA fraud provision none of this would happen.

    There needs to be statutory damages available for site owners who have their lawful content fraudulently taken offline.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2014 @ 12:44pm

      Re:

      See my comment above for a fair way of pursuing this: mandate punitive damages against any issuer who issues a claim against something clearly labelled as being under someone else's copyright. The courts can still settle the cases where there's a fraudulent copyright claim included, but there is case law covering that point already. For the regular stuff, this would fix things pretty fast, and close down the burgeoning practice of law firms filing claims "on behalf" of copyright holders even prior to talking to those holders about doing so.

      Anyone know if there's ever been a case of a takedown notice being issued "on behalf of" GNU?

      reply to this | link to this | view in chronology ]

  • icon
    antidirt (profile), 18 Sep 2014 @ 1:36pm

    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.

    Parker--

    How many, or what percentage, of the notices are abusive, as opposed to merely incomplete? That number would be a lot more useful.

    reply to this | link to this | view in chronology ]

  • identicon
    Calvin Harris mp3 collection, 23 Sep 2014 @ 5:39am

    Anyone can fool the auto-bots

    Then you also have bots crawling for links and the resulting DMCA takedown requests without any human checking the validity of the links.

    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.

    reply to this | link to this | view in chronology ]


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