Notice and take down
Notice and take down is a process operated by
United States
The Online Copyright Infringement Liability Limitation Act, passed into law in 1998 as part of the Digital Millennium Copyright Act provides safe harbour protection to "online service providers" for "online storage" in section 512(c). Section 512(c) applies to online service providers that store copyright infringing material. In addition to the two general requirements that online service providers comply with standard technical measures and remove repeat infringers, section 512(c) also requires that the online service providers: 1) do not receive a financial benefit directly attributable to the infringing activity, 2) are not aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the allegedly copyright infringing material.[2]
An online service provider can be notified through the copyright owner's written notification of claimed infringement. Section 512(c) lists a number of requirements the notification must comply with, including:
- Identification of the copyrighted work claimed to have been infringed and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number and email address
- A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.[3]
Provided the notification complies with the requirements of Section 512, the online service provider must expeditiously remove or disable access to the allegedly infringing material, otherwise the provider loses its safe harbour and is exposed to possible liability.[4]
The online service provider may additionally limit its liability for the removal of the material itself as well as its liability for restoring the removed material, by complying with a counter notification process.[5][6] In this process, the service provider must promptly inform the subscriber of the removal of the content.[7] If the subscriber then objects via a counter notification, the service provider must notify the party which filed the original notice.[8] If the party does not bring a lawsuit against the subscriber within 14 days, the service provider must then restore the material to its location on its network.[9]
Like the original notification, the counter notification include specific elements:[10]
- The subscriber's name, address, phone number and physical or electronic signature.
- Identification of the material and its location before removal.
- A statement under penalty of perjury that the material was removed by mistake or misidentification.
- Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.[11]
Implementing a counter notification process is not a requirement for the safe harbor protections. A service provider may decline to restore the allegedly infringing material, or to notify the subscriber at all, limiting the recourse available to the subscriber.[12]
If the court determines that the copyright owner misrepresented the claim of copyright infringement, the copyright owner becomes liable for any damages that resulted to the online service provider from the improper removal of the material.[13] The online service provider is also required to appropriately respond to "repeat infringers", including termination of online accounts.[14] On this basis online service providers may insert clauses into user service agreements which allow them to terminate or disable user accounts following repeat infringement of copyright.[15] Identification of "repeat infringer" may occur through repeated notice and takedown requests, while other online service provider require a determination by a court.[16]
European Union
The basis for notice and takedown procedures under EU law is article 14 of the
In most EU countries at the national level, there are no explicit rules regarding notice of infringement, take-down process or counter notice and put back (statutory rules exist in smaller countries like Hungary and Finland). Where explicit rules do not exist (e.g. Germany), some aspects of notice requirements can be derived from common principles of law.[18] By nature, this lack of explicit rules results in a lack of clarity and legal certainty when compared to legal regimes with statutory rules (e.g. United States).
In October 2013, the European Court of Human Rights ruled in the Delfi AS v. Estonia case that the Estonian news website Delfi was liable for defamatory comments by users in an article. The court stated that the company "should have expected offensive posts, and exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation" and its notice and take down comments moderation system was "insufficient for preventing harm being cause to third parties".[19][20]
India
In India takedown requests can happen through Section 69A of Information Technology Act, 2000.[21][22]
Criticism
Notice and takedown has been criticised for over-blocking or take down of non-infringing content. In 2001 the
In 2007 numerous US based online service providers hosting
The Electronic Commerce Directive, unlike the Digital Millennium Copyright Act, did not define so called notice and action procedures under article 14 of the Directive. Member states implemented diverging approaches on the duty to act expeditiously and on when an online host obtains "actual knowledge" in relation to notifications. Inconsistent approaches to whether online service providers, such as search engines or social media networks, fall within the definition of online host, under article 14 developed across the EU. As a result, notice and takedown procedures are fragmented across EU member states and online hosts face considerable legal uncertainty.[28] The European Commission consulted on notice and action procedures under article 14 in 2010, and has launched a new initiative in June 2012. The European Commission observed that "Online intermediaries face high compliance costs and legal uncertainty because they typically have operations across Europe, but the basic rules of Article 14 are interpreted in different ways by different national courts (sometimes even within the same member state)." As part of the initiative the European Commission intends to clarify which online service providers fall within the article 14 definition of online hosts. The initiative assesses whether different categories of illegal content require different notice and action approaches.[29][30] It seems that in 2013 the European Commission's notice and action initiative has come to a halt. The reason for this is unclear. One aspect might be to avoid bad publicity, since notice and take down is associated with chilling effects on free speech as described above. The other reason might be the following problem: the EU Commission already made it quite clear that it does not want to change the Electronic Commerce Directive – while indeed it seems impossible to provide legal certainty in the take down process without a binding legal underpinning.[31]
Notice and stay down
The term notice and stay down is used to refer to the concept of additionally requiring that a service, after it has received a request to take down a certain copyrighted work, must also prevent the same work from becoming available on the service again in the future.[32][33][34] Proposals for such concepts typically prescribe the implementation of automatic content recognition, similar to YouTube's "Content ID" system, that would proactively filter identified works and prevent them from being re-uploaded. Proposals for notice and stay down rules have been made in the United States by pro-copyright lobbyists, and constitute Article 17 of the EU's Directive on Copyright in the Digital Single Market.[33][35][36][34][37]
The concept of notice and stay down has faced criticism; it has been noted that the only way to reliably enforce such an obligation would be through automatic filtering, which is subject to the possibility of
The implementation of Article 17 adopted by the
See also
- Notice and notice
- Non-DMCA Google takedowns on behalf of Scientology
- Non-DMCA Google takedowns on behalf of Universal Medicine
References
- ISBN 9789264115637.
- ^ Section 512(c)
- ^ 17 U.S.C. § 512(c)(3)(A)(i-vi))
- ^ 17 U.S.C. § 512(c)(1)(C)
- ^ 17 U.S.C. § 512(g)(1)
- ^ 17 U.S.C. § 512(g)(4)
- ^ 17 U.S.C. § 512(g)(2)(A)
- ^ 17 U.S.C. § 512(g)(2)
- ^ 17 U.S.C. § 512(g)(2)(C)
- ^ 17 U.S.C. § 512(g)(3)
- ^ 17 U.S.C. § 512(g)(3)(A), (B), (C) and (D)
- ^ Bridy, Annemarie and Keller, Daphne (31 March 2016) U.S. Copyright Office Section 512 Study: Comments in Response to Notice of Inquiry. p. 29
- ^ [512(f)]
- SSRN 3348562.
- SSRN 3921231.
- ^ ISBN 9789264115637.
- ISBN 9780735529441.
- ISBN 978-3-16-152667-1.
- ^ European Court strikes serious blow to free speech online - Article 19, 14 October 2013
- ^ The threat facing online comments - Financial Times, John Sunyer, 23 May 2014
- ^ Mandavia, Megha (2 October 2019). "India sent most takedown requests to social media companies: Research". The Economic Times.
- ^ "How India's Data Requests From Tech Giants Have Skyrocketed Over The Years". Inc42 Media. 12 November 2019.
- New York Times. Retrieved 2011-04-07.
- ^ J. Urban & L. Quilter, "Efficient Process or 'Chilling Effects'? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act," Santa Clara Computer & High Technology Law Journal (March 2006)
- ^ "Will Fair Use Survive? Free Expression in the Age of Copyright Control" (2005). (PDF) Archived 2005-12-08 at the Wayback Machine Free Expression Policy Project
- ISBN 978-1-84542-948-5.
- ^ Holznagel, Daniel (2014). Melde- und Abhilfeverfahren zur Beanstandung rechtswidrig gehosteter Inhalte. GRUR Int (2/2014), C.H.Beck. pp. 105–113.
- ^ "German News Article Removed From Search Results After DMCA Complaint". EDRI. 20 June 2012. Retrieved 27 August 2012.
- ^ Gothard, Peter (7 June 2012). "European Commission to more closely define online content 'host'". computing.co.uk. Retrieved 27 August 2012.
- ^ "European Commission consults on notice and take-down procedures for online content". Practical Law Company. 4 June 2012. Retrieved 27 August 2012.
- ^ Holznagel, Daniel (2014). Melde- und Abhilfeverfahren zur Beanstandung rechtswidrig gehosteter Inhalte. GRUR Int (2014), C.H.Beck. pp. 105–113.
- ^ a b Lemley, Chris Sprigman and Mark (21 June 2016). "Why notice-and-takedown is a bit of copyright law worth saving". Los Angeles Times. Retrieved 2018-06-23.
- ^ a b c Harmon, Elliot (2016-01-21). ""Notice-and-Stay-Down" Is Really "Filter-Everything"". Electronic Frontier Foundation. Retrieved 2018-06-22.
- ^ a b "The Rebranding Of SOPA: Now Called 'Notice And Staydown'". Techdirt. Retrieved 2018-06-22.
- ISSN 1360-0869.
- ^ Dredge, Stuart (2016-03-24). "British music labels demand 'notice and stay down' piracy policy from Google". the Guardian. Retrieved 2018-06-22.
- ISSN 1360-0869.
- ^ "German 'Upload Filter' Law Sets Standards to Prevent Overblocking". TorrentFreak. Retrieved 2021-05-26.
- ^ Schmon, Christoph (2021-02-26). "From Creativity to Exclusivity: The German Government's Bad Deal for Article 17". Electronic Frontier Foundation. Retrieved 2021-05-26.