DMCA “Takedown” Notices: Why “Takedown” Should Become “Take Down and Stay Down” and Why It’s Good for Everyone

Stephen Carlisle July 23, 2014

Earlier this year, several significant copyright milestones were reached. This first was that Congressional hearings began on reforming the copyright law. Part of the reforms was to address problems with the Digital Millennium Copyright Act’s provisions that allow copyright owners to demand that websites and search engines “takedown” infringing material. ¹ The second was that Google received its one hundred millionth takedown notice. ² You read that right. Copyright owners have sent more than 100,000,000 notices to Google complaining about copyright infringement. In the week immediately preceding the start of the Congressional hearings, Google received 6,532,393 takedown notices, sent mainly by the music and adult industries. ³ On its face, this fact would indicate a system that is ineffective and broken. Yet, just how it is broken depends upon which end of the debate over copyrights on the internet that you stand.

In short, section 512 of the U.S. Copyright Act provides that the copyright owner has the ability to demand that a service provider, or one who provides information location tools, “takedown” material that the copyright owner claims is infringing. The elements required to be in the notice are clearly laid out by the section. ⁴ This notice is served on a designated agent whose job it is to receive takedown notices. If the notice meets the requirements of the statute, the service provider must “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” ⁵ In return, the service provider is granted immunity for copyright infringement, most often referred to as “safe harbor.” If the person whose material is removed thinks the takedown notice was filed in bad faith, or incorrect, it has the ability to file a “counter-notice.” ⁶ If the counter-notice is compliant, the material must be reposted within 10-14 business days, unless the service provider is notified that the copyright owner has filed suit. ⁷ Sounds simple. Yet as always, the devil’s in the details.

The initial problem is the sheer volume of infringing material on the internet. Over 6.5 million alleged infringing files in one week is a truly staggering number. The result of the overwhelming numbers of infringing files leads copyright owners to rely on technology, particularly “web-bots” that scan the internet for infringing activity. While taking the human element out of the takedown notice makes it more efficient for the copyright holders, it also increases the possibility of incorrect and otherwise faulty takedown notices.

The sheer volume of takedown requests can also have an effect on the timely processing of takedown requests. Google claims that “as of December 2012, our average processing time across all removal requests submitted via our web form for Search is approximately 6 hours.” ⁸ To which the copyright owners say “baloney.” In particular, independent filmmaker Ellen Seidler posted online a running counter on how long it was taking Google to process a takedown request on her film And Then Came Lola. To quote Ms. Seidler, “[t]he clock below began started clicking on April 24th when 2 links were reported for copyright infringement.  As of today, June 17th, nearly 2 months later, both pirated movies remain online as does the pirate Blogger-hosted website.” ⁹ The Google hosted blog was finally taken down July 10^th. ¹⁰ Seventy-seven days is hardly a glowing example of the requirement that the service provider “responds expeditiously to remove or disable access” to infringing material that is envisioned by the statute.

Adding to the already staggering amount of online infringement is the fact that many times infringing material gets taken down, only to reappear on the same site, sometimes only a matter of hours after it is removed. This problem has been compared to the carnival game of “whack-a-mole” by copyright holders. ¹¹ As reported by the blog of the Foley Hoag law firm, Professor of Law Sean O’Conner  testified before Congress about the “relentless reposting of blatantly infringing material after a takedown notice has already been sent, which has significantly increased the overall volume of takedown notices and the concomitant administrative burdens.” ¹² Similarly, Paul F. Doda, as counsel for textbook publisher Reed Elsevier, noted that the publisher issued over 20,000 takedown notices per month in 2013. ¹³ In one case, the same textbook was uploaded to the same website 571 times. ¹⁴

Then it was Google’s turn. Katherine Oyama, the Senior Copyright Policy Counsel at Google, painted a rosy picture of Google’s efforts to combat piracy and repeated the claim that Google takes down material in an average of six hours. ¹⁵ I viewed a replay of the testimony, and watched as Representative Judy Chu whipped out her iPad and did a Google search. She pointed out that all she did was search “watch 12,” which Google auto-completed to “watch 12 Years a Slave free,” and the second result was a pirate site. Then she searched for “watch Frozen,” and the number one and number two results were “watch Frozen for free” and directed the searcher to pirate sites. Ms. Oyama spent the next three minutes not answering the question of why Google auto-completes to pirate sites. You can watch the exchange here. ¹⁶ Later she testified that “you can’t block the word ‘free’ from a search. ¹⁷ This, of course, is not the question. The word “free” was not included in the search. The question is why Google auto-completes to “free” and the top results are pirate sites. Her glib solution was that the “best way to fight piracy is to find alternatives to takedowns that will allow copyright owners to monetize content rather than have it repeatedly taken down.” ¹⁸ In other words, Google’s not going to do anything unless Google gets a slice of the profit. When asked, shouldn’t search engines have an affirmative duty to prevent the reposting of materials, she responded that it would be “impractical to enforce and it would chill online speech.” ¹⁹ This answer begs the question: since when is the repeated posting of “blatantly infringing” material online protected speech? To quote the Supreme Court of the United States, the First Amendment “securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” ²⁰ According to the RIAA, they have sent more than two million takedown requests to Google about the website mp3skull. Despite this, mp3skull continues to top Google’s search results for “artist+songname+download.” ²¹ Whose speech is being chilled here?

This is where we are told that up is actually down and black is really white is disguise. Paul Siemenski, the general counsel of Automattic, Inc. (the maker of WordPress,) testified that the real problem with the DMCA is the “abuse of the DMCA takedown process,” including the “lack of any recognition of fair use in the DMCA.” ²² Well, how many abusive notices are there? Mr. Siemenski listed three examples of abusive takedowns in his prepared remarks. Google in their transparency report lists 7 “abusive” takedowns as examples. ²³ The Electronic Frontier Foundation lists 31 examples in their takedown “hall of shame.” ²⁴ Assuming these examples are not duplicative, this totals 40 “abusive” takedown notices. In addition, Google attempts to bolster their position by pointing to a “chilling effects” study. This study is notable only in that its information is nearly 10 years out of date. For example, the study notes that it had reviewed “all notices submitted to Google Inc., since March 2002, a total of 734 notices as of August 2005.” ²⁵ Remember that Google received 6.5 million notices in one week earlier this year. Yet Google, in their own transparency report, states that 97% of the millions of takedown notices that they received between July and December of 2011 were removed as legitimate. ²⁶ It does not say why the remaining 3% were denied. There are lots of reasons why a denial might occur. Failure to follow the requirements of the notification rules of 512 is a likely starting point. So if 97% of the takedown requests that Google receives are legitimate, this means that in one week Google received 6.3 million legitimate takedown requests. Yet we are told both by Mr. Siemenski and the Electronic Frontier Foundation that the real problem is abusive takedown requests.

Let’s go back to Ellen Seidler. She is not a Hollywood studio. She is a small independent filmmaker who made the movie And Then Came Lola in 2010. Hardly a household name. According to an interview posted at the Music-Technology-Policy website, the movie cost around $250,000 to make. ²⁷ This money was “self-financed through typical indie film means, i.e. credit cards, personal loans, etc.” ²⁸ These small indie films do not get extensive theatrical releases, if they can get a theatrical release at all. They depend mightily on the sales of DVD’s and pay per view to earn their money back. Within 24 hours of the release of And Then Came Lola on DVD, pirated copies appeared online. At the end of one month, more than 25,000 different sites offered her film up for free. In all, she sent out more than 56,000 takedown notices in a futile attempt to sweep away the tide of internet piracy. ²⁹

There is also the example of the low budget horror film Girls Gone Dead. ³⁰ With a budget of a mere $500,000, this film was made locally in South Florida using local crew and actors, some of whom I know personally. Incredible as it may seem, the movie wound up being pirated so many times that it made a list of the top 10 most pirated films by the website Torrent Freak. ³¹ I asked co-director Aaron Wells about whether they sent out DMCA notices. His response was that they did, but the pirates are in his words “very persistent” and that their lost revenue was difficult to estimate. ³²

So perhaps we can put to rest the notion that the pirates are somehow modern day Robin Hoods, who only steal from the rich Hollywood studios. They steal from everybody, including low budget indie filmmakers that need every penny they can muster to stay in business.

Then there was this rather depressing account from an independent record label posted at The Trichordist. ³³

“Just about a year after hiring two part time people, to do nothing else but issue DMCA takedown notices we’ve crossed the 50,000 notice milestone. The division of labor requires one person just to monitor YouTube, and another handles all DMCA compliant sites such as CyberLockers, Torrent Search Engines, etc….Most of the take downs are for the same title, at the same site, the same day. Day after day during the initial release period of the album (generally the first 60-90 days) it is a constant game of whack-a-mole….each time we issue a notice it takes 24 to 48 hours to remove. But, once it’s removed it is generally back on the site within a few hours.”

It is readily apparent that the cost, in terms of time and labor, to defend one’s copyright on the internet is significant. The time and expense spent sending endless series of takedown notices is time not spent creating new music or new movies, and reduces the amount of money that might otherwise be available to fund the creation of new music and new movies.

In well documented cases, Google partners with the pirate sites by setting up AdSense accounts on the sites. So, by sending people to the pirate sites, and obtaining a share of the ad revenue, Google has a vested interest in seeing that pirated content remain freely available. Again to quote Ellen Seidler, “Even when they are informed (by me and I assume others) of the fact that a particular domain exists merely to offer pirated content, Google does nothing to disable the AdSense account. Google’s seems to prefer to look the other way and hide behind the curtain of “free speech.” ³⁴

To add insult to injury, Google’s response to the takedown notice includes the warning that one’s takedown notice is being forwarded on to ChiilingEffects.org, ³⁵ an EFF funded site devoted to documenting the “Chilling Effect” that the DMCA has on free speech. ³⁶ Since when does the activity of a copyright owner trying desperately to protect their work from illegal copying become an evil to be publicly shamed? The only thing being chilled here is the ability of small independent companies to make a profit, while seeing their resources drained and squandered in pursuit of the Sisyfusian task of sending out endless takedown notices aimed at the same websites.

Even the Chilling Effects website admits that the problem of fraudulent or abusive takedown notices is “anecdotal.” ³⁷ I have seen no statistics that in the face of the millions upon millions of takedown notices that Google receives in one week, that the number of fraudulent or abusive takedown notices is statistically significant. When pressed on the issue, Mr. Siemenski had to admit the total number of “abusive” takedown requests that WordPress has received amounted to “a handful.” ³⁸ What’s more, the remedy for a fraudulent or abusive takedown notice is already present in the copyright act.

Recall at the top of the article that if one feels that a takedown notice was filed in bad faith, one simply files a counter-notice. If the counter-notice meets the requirements of the statute, the service provider must re-enable the material, unless the copyright holder files an infringement lawsuit within 14 days. This is the process that the General Counsel of Automattic criticized for being “complicated” and “intimidating.” ³⁹ The hypocrisy of this position is readily visible. The elements of the counter-notice are no more complicated than that required by the initial takedown notice, and as far as being “intimidating,” what is more intimidating than the prospect of having to send out 50,000 takedown notices?

As far as the criticism that the takedown provisions do not take into account “fair use,” this position falls flat under even the most rudimentary analysis. First off, fair use is an extremely murky area of the copyright act. We are constantly reminded by the Federal Courts that fair use is examined on a case by case basis with no bright line rules. ⁴⁰ So, now we are to add to the takedown provisions a requirement that the person processing it engage in a “fair use” analysis? Is Google, not the court system, now going to become the arbiter of what is and is not fair use? Given Google’s already documented shady self-interest with the pirate sites, this is a recipe for disaster. The whole purpose of notice and counter –notice is to take guesswork out of the system, so that the service provider does not have to make judgment calls on whether something is infringing or not. That is why the service provider receives “safe harbor.” If the service provider starts making judgment calls on fair use, then it should lose its safe harbor protection.

Further fair use is an affirmative defense to copyright infringement; in other words it’s a “yes, but.” It works like this: “Yes, I copied your material, but I did so for a good reason that really did not harm you.” This is a legal analysis that rightly comes after a counter-notice has been issued, not before the initial takedown notice has been acted upon.

The remedy for all of this is that “takedown” needs to be converted to “take down and stay down.” Once a DMCA notice is filed, all files with that ID need to be taken down, not just one on one website. New postings that match that ID need to be blocked. It will make the DMCA notice provisions effective and easier to deal with for all.

Firstly, take down and stay down will eliminate the problem of “whack-a-mole” that requires endless repeated notice for the same files on the same website. The reason why “whack-a-mole” exists is that the counter-notice requires you to provide your real name and address and a consent to being sued in Federal District Court. A pirate web site has no desire to do this, so after the content is removed, they simply re-post it. Take down and stay down makes this no longer an option.

With take down and stay down, the massive amounts of DMCA notices filed will go down. That means Google will expend fewer resources processing them, and would enhance their bottom line. On the flip side, small independent companies will not have to expend valuable time and resources to sending out notice after notice for the same content on the same website.

But is this technologically feasible? Yes. The file locker service Dropbox already does this, as noted on the website Plagiarism Today. ⁴¹ When a file is placed on DropBox, it is processed and assigned a “hashtag,” a unique identifying series of number and letters. If a DMCA notice is filed on that hashtag, any further public sharing of the file is disabled by DropBox. ⁴² Google also already does this on YouTube, via its Content ID system. ⁴³ Now note that Google’s implementation of content ID is not completely altruistic. What they really want you to do is agree to monetize the file, for which Google will take a share of the profits.

Members of Congress, Judy Chu and Tom Marino, make these excellent points: “[A]recent study by the Digital Citizens Alliance estimates that the top 596 pirate sites raked in $227 million in advertising revenues last year. These sites had a profit margin of between 80 and 94 percent. Content thieves rely on stealing the rights-protected work of others and distributing on low-cost sites. It’s a low-risk, high-reward business.” ⁴⁴ Compare that with the plight faced by independent filmmakers and music companies. If they can raise the capital, they put it all at risk on a venture that may not prove popular enough with the public to turn a profit. Faced with this problem, they now find that they have to divert valuable resources into sending 50,000 takedown notices.

At the same Congressional hearing, Grammy award winning composer, Maria Schneider, testified that due to piracy, her last album release was $100,000 in the red, long after under normal circumstances it would have turned a profit. ⁴⁵

It is these voices which are being silenced by the internet pirates. The stated purpose of copyright is to promote the progress of the arts. Those people who create this art are going to stop doing so and have their voices effectively silenced if they cannot earn a sufficient income to sustain the business of making art. When asked if she would fund the making of another movie after her experience with And Then Came Lola, Ellen Seidler said, “Well, there’s no way financially I could do it, nor would I want to.” ⁴⁶

Artists need to devote their time to making art. They should not have to devote their time to sending out repetitive takedown notices. The time for take down and stay down has come.