Real Punishments Needed for DMCA Takedown Abuse

Note: The opinions expressed within are mine, and mine alone – not necessarily endorsed by Automattic or WordPress.com.

Last week Automattic released an update to our transparency report, detailing the number of takedown and information requests that were received between January and the end of June this year – as well as the number that had been acted upon, or rejected. There has been some good coverage of what’s included in the report by TorrentFreak, ARSTechnica, and TechDirt.

One area that’s particularly interesting is that relating to the DMCA notification and takedown process, regarding instances of alleged copyright infringement. The full figures are available on the page itself, but here are the highlights:

WordPress.com Transparency Report

If you’re like me, it can be difficult to pull out something meaningful from a table of figures, at least at first glance. The important thing to note here is that 43% of the total notices received were rejected – either for being incomplete, or abusive. This figure rises to 67% if you remove sites that were ultimately suspended for a terms of service violation from the ‘Percentage of notices where some or all content was removed’ column.

Incomplete notices can be anything from the complainant not including a signature; failing to specify the content that they are claiming copyright over; or not including the required statements ‘under penalty of perjury’. Abusive notices include those that target material which is not copyrightable (such as trademarks or allegedly defamatory content); where the complainant misrepresents their copyright; or attempts to prevent fair use of the material – protected by US copyright law.

Many complainants simply want to get content removed from the web, irrespective of which route they have to take to get it. As a result, a variety of different tactics are deployed, particularly when a third party agent is engaged to carry out the task. For example, the wording of takedown demands may be fudged in order to give them the appearance of a valid DMCA takedown notification, whilst failing to substantively fulfil the statutory requirements. In other cases, claims regarding alleged copyright infringement are mingled together with threats concerning trademark infringement or defamation – obfuscating the invalidity of the DMCA takedown itself in the process. Web Sheriff in particular have been known to adopt this practice, with ‘kitchen sink’ takedown demands listing what seems like every law passed in the last 20 years incase one of them might apply in any given scenario. The Pirate Bay have infamously mocked Web Sheriff in the past for some of their tactics:

Pirate Bay Web Sheriff Mockery

It can be a difficult process to manually review and untangle exactly what a complaint relates to, and whether or not it is a valid DMCA takedown. Clarification e-mails often go ignore, something that is particularly true in cases where the notifications are being generated by bots. Replying to point out that a notification is incomplete, or that the material is actually hosted elsewhere in many cases is met by nothing except a deaf ear, and a duplicate takedown demand the following day.

Whilst the DMCA’s safe harbor provisions are designed to provide protection for third party intermediaries as well as the rights of copyright holders, the phenomenon of automated takedown demands has resulted in a massively lopsided burden on those service providers who take their responsibilities seriously, and do not just acquiesce to every single takedown notification automatically.

Complainants are able to submit grossly inaccurate DMCA takedowns on a massive scale, routinely through the use of automated systems that indiscriminately target particular keywords across the web – all without any real fear of legal consequence. The sheer volume notices generated means that the vast majority of service providers simply remove content immediately and automatically, without scrutinising them for their formal completeness or legal validity. The few that do choose to go through them manually in order to protect their users (like WordPress.com), end up facing a huge burden.

Without stronger statutory consequences for those who abuse the DMCA’s notification and takedown system, the battle for freedom of expression online will be increasingly difficult. The majority of service providers will inevitably default to censorship in the first instance, as the number of notifications (and therefore the resources required to push back effectively) increases.

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