More Evidence That Tons Of DMCA Takedowns Are Bad News... And That People Are Afraid To Counternotice

from the it's-a-real-problem dept

Earlier this week, we wrote about a major new study that revealed that a ton of DMCA takedown notices are clearly faulty, and how that shows just how messed up the DMCA's notice-and-takedown provisions are in giving tremendous incentives to send notices with absolutely no punishment for filing bogus takedowns. The legacy music industry and its supporters keep claiming that the fact that there are so few counternotices is evidence that there's almost no abuse. In fact, in the legacy music industry filing we wrote about earlier today, they even had the gall to claim that the real abuse is in the counternotices themselves.

As more and more comment filings to the Copyright Office about the DMCA process are being released, there's increasing evidence that the legacy entertainment industry's claims are, simply, full of shit. The latest is the excellent comment filed by Automattic (the folks who make Wordpress), whose Wordpress.com offering hosts over 80 million websites. The company notes that even while hosting so much content, the majority of the time the company spends dealing with DMCA notices is... dealing with the bogus ones:
We put a great deal of resources toward processing takedown notices because we take our responsibilities under the DMCA seriously. We aim to respond to all inbound takedown notices within 48 hours, exceeding the law’s requirements. But a significant portion of the resources we put towards our DMCA program are aimed at combating the shortcomings of the notice and takedown system. For example, we spend significant effort reviewing and trying to weed out overbroad and abusive DMCA takedown notices, so that our users’ speech isn’t needlessly censored. This is a real cost to us, and diverts resources from more productive uses, like improving the products and services we offer our customers.
As with the study we highlighted earlier this week, Automattic notes that a huge number of notices it receives are invalid. First, it notes that approximately 29% of notices simply aren't valid notices in that they fail to meet the criteria laid out by the DMCA for what constitutes a valid notice. Then, another 10% of notices do meet the criteria to be an official notice, but are "clearly false or mistaken." And that's based on their own review of the notices. So, approximately 40% of all DMCA takedown notices the company receives are bogus. But, contrary to what the legacy industry folks and their shills are saying, Automattic notes that very few people file counternotices, out of a fear of being sued, and they're concerned about how this leads to censorship of perfectly legal speech.
Our statistics bear this out. As discussed below with respect to Subject No. 30, our statistics show that about 10% of the notices of claimed infringement we receive are otherwise valid but are clearly false or mistaken. But we receive many fewer counter notifications than that—only about one-half of one percent of the total number of notices we receive. We think this ratio shows that the low number of counter notifications is not the result of a correspondingly low number of false and mistaken assertions of infringement, but instead results from the concern that sending a counter notification is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred. The company notes that out of a batch of approximately 1,700 "valid" but bogus notices, only 113 counter notices were sent. Most people just don't bother out of fear of getting sued.
The company also highlights just how broken Section 512(f) is -- which is the section that is supposed to be used against bogus takedowns. But as we've written about in the past, it's basically a dead letter. There are almost no examples of 512(f) being used successfully against someone for sending a takedown... with the one exception being Automattic! As we wrote about, a few years ago, Automattic actually sued over egregiously bad DMCA notices and even won a case, but... it was by default, because the notice sender just ignored the lawsuit. In the other lawsuit, it could never actually find the plaintiff who sent the bogus censorious takedowns.

The company also provides a number of actual examples of bogus DMCA takedown notices to get beyond just the statistical aspect and to prove the problem is real:
  • A medical transcription training service that used forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
  • A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
  • A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
  • An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
  • A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.
As the company notes, each of these were clearly bogus, but since 512(f) is basically useless, it would be a complete waste of time to sue over them.

It's good to see companies sharing this kind of information, and it tracks closely with what the study from earlier this week said, which was based on a different corpus of data. So, yeah, when the legacy guys claim there's no abuse, they're simply full of shit.
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Filed Under: abuse, censorship, copyright, counternotices, dmca, dmca 512, notice and takedown, safe harbors, wordpress
Companies: automattic


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  1. identicon
    Anonymous Coward, 4 Apr 2016 @ 3:35am

    Re: Re: Re: Re: Re:

    "A perfect example of misunderstanding that the claim may be made as a business owner, but that personal information must be provided (and not that of the company) such as address. That failure can render a notice invalid."

    Which is still not that complicated. Maybe to you but to any normal person here it's not.

    "There are few burdens on those receiving notices beyond "take it down". "

    Which is a burden. It's a burden on artists that submit their own content and now must have it removed. Imagine if I burdened you with the burden of unplugging your own refrigerator until you first prove to everyone it belongs to you and there was a lengthy and expensive process to do all this. That's not how real property law works. What if it's your own content that you spent many hours making and, suddenly, some random person claims it's their. Your content gets removed and it later turns out it's not theirs but they made a 'good faith' belief claim that it was so no punishment to them. That's not how real property laws work. You can't deny someone use of their own property before due process.

    "There are only penalties for false claims in the law, everything else mitigates or does not mitigate normal copyright law."

    Normal copy protection laws are also what are being criticized. They posses a one sided penalty structure as well.

    "If a site operator removes content as per DMCA complaints, they have no real burden, legal or otherwise. "

    You are obviously not following. The problem is that way way more burden is placed on the person on the receiving end of a claim than on the sending in, unlike real property laws.

    "The biggest burden is similar to other property rights, which is proving that you have rights to the property - either content is licensed or you are using it under fair use (no different from providing a lease to a rental property)."

    Or you own the property and the other party is trying to pretend that they own it when they don't. In the case of registered property, like a house or car, the government will first check their records before denying you access to said property. In the case of unregistered property, like a refrigerator, the assumption would be that the person in possession of the property owns it and won't be denied use of that property until proven otherwise by someone claiming to otherwise own the property. The penalty structure is not one sided against the person that actually owns the property having someone else arbitrarily claim they own it.


    "It is very much like regular property laws, which tend to bias towards property owners."

    You obviously don't understand real property laws and how they differ from IP laws and you can't even be bothered to read anything past your own stubborn ignorance. Then you wonder why no one takes you seriously. You keep making the same repeated claims over and over even after you have been shown to be wrong. At this point you are just lying because you know better. Stop repeating the same lies, it doesn't serve to prove your case and only shows how morally lacking you really are.

    First of all real property laws are not one sided in terms of anyone just arbitrarily claiming to own property they don't, unlike IP laws. Either the property is registered or the burden falls on the person making the claim to first prove they actually own the property before they can deny someone else the use of said property.

    Secondly the penalty structure of real property laws are not anywhere near that of real property laws. In the case of IP laws the person claiming to own something they don't is not under penalty of perjury. Under IP laws that would be equivalent to me claiming to own your refrigerator as my own and denying you use of your own refrigerator until you prove, under penalty of perjury, that it really belongs to you. and then I can claim I was simply mistaken. Real property laws don't work like that.

    Under real property laws even if I did intentionally vandalize or rob your house that's likely not enough to "cripple them financially for the rest of their lives" which is very different from IP laws.

    Please, go back and read past your comments because I already explained all this here

    https://www.techdirt.com/articles/20160401/11332234082/our-comment-dmca-takedowns-lets-return-to -first-principles-first-amendment.shtml#c391

    and so far you have addressed absolutely nothing.

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