According to a new report from the Center for the Protection of Intellectual Property at the George Mason University School of Law, the notice and takedown provisions of the DMCA are no longer doing their job as intended.
The report, titled The Failure of the DMCA Notice and Takedown System: A Twentieth Century Solution to a Twenty-First Century Problem, states that the 15-year-old legislation’s Section 512, originally intended as an emergency measure to get content taken down quickly, is now “straining under the weight of a blizzard of notices, as copyright owners struggle to abate the availability of infringing copies of their most highly valued works.”
There can be little doubt that sites and service providers, especially those that deal with user-uploaded or generated content, are today having to deal with more complaints than ever before. While the RIAA and MPAA have always been in gear, over the past couple of years thousands of copyright holders have become aware of their right to send tens, hundreds or thousands of notices each month in order to have unauthorized content (or links to that content) taken down.
But as the report points out, it’s a largely unproductive task.
“Despite all the notice, there is precious little ‘takedown’ to show for it. Unless a site employs some sort of content filtering technology, the same content typically re-appears within hours after it is removed,” author Bruce Boyden writes.
“As a result, this is a system that makes no one happy. Copyright owners are unhappy with the amount of expense and effort the system requires for such paltry results. Online services are unhappy with the burden of having to process and respond to all of those notices. Users are unhappy with inconsistent enforcement and occasional, inevitable mistakes.”
As highlighted in the shutdown of file-hosting service Hotfile this week, filtering is something that the MPAA, RIAA and even the courts are interested in if the circumstances are right. The supposed $80m settlement with a filtering condition imposed was designed to send a clear message to US-based hosting and linking companies, over and above their established DMCA obligations.
Nevertheless, in the meantime it’s largely business as usual. Copyright holders are sending out millions of notices every month in an attempt to stem the tide, many of those to search engines such as Google and Bing. Google’s Transparency report reveals all of the copyright takedown notices the search engine receives every month from a wide range of rightsholders, but discovering the numbers sent to sites in general is an almost impossible task.
What today’s brief reveals, however, is that the notices sent to search engines are only half the story. The report contains details of the notices the MPAA studios sent in total during a six month period this year.
Starting in March 2013 the Hollywood studios sent takedowns for a total of 5.13 million URLs. Just over 2.7 million URLs were sent to search engines such as Google and Bing while 2.36 million were sent to the sites carrying or indexing the infringing content.
During April the the movie studios sent less notices – around 4.83 million – with the lion’s share going to search engines (2.85 million) and the remainder (1.98 million) being sent to sites.
In May the quantity of overall URLs dropped again to 3.46 million URLs, however the number of takedowns being sent to sites exceeded those sent to search engines, 2.16 million versus 1.3 million.
June saw a total of 3.37 million notices issued with around 400,000 more takedowns going to sites than search engines. By July total takedowns were back up to 4 million URLs, 23.4 million to sites and 1.65 million to Google and friends. Just over 4.4 million were sent in August, with just under 600,000 more notices going to sites than search engines.
During the total six month period (March to August 2013), the MPAA studios sent takedown notices for 25.23 million URLs, 13.23 million to sites and 11.99 million to search engines.
It should be noted that the report doesn’t indicate whether the content taken down from search engines is the same as that being taken down from sites, but it should be presumed that there is some, possibly a lot, of duplication. There is also no indication of the success of the notices sent to sites, although Google and Bing will have complied on most occasions.
Finally, of particular interest is the amount of opposition Hollywood encountered when applying for the URLs to be taken down. According to the studios just eight of their DMCA takedown notices were contested with DMCA counter-notices. That doesn’t suggest that in excess of 25.2 million were entirely accurate, but it does show that in the main there is no appetite to have links restored on any grounds.