'Who Watches the Watchmen': An Empirical Analysis of the Reasons for Rejecting Copyright Take-down Notices

Abstract

In “Copyrighting Copywrongs”, the scope and extent of mistakes made in compliance with DMCA formalities when reporters issued take-down notices was examined. In this paper, there is a further examination of the actions taken by the Internet intermediaries in response to these take-downs. The Internet intermediary selected for this analysis is Google, Inc., because it is the largest intermediary and accounts for the largest number of take-down notices received. But because the actual mechanisms for Google’s processing of take-down notices is not publicly accessible, an accurate statistical model based on 21.8 million take-down requests (a notice can have multiple requests) received between 2011 and 2014 is instead built to approximate Google’s automated processing mechanisms. One would have expected Google’s mechanisms to adhere to the DMCA formalities rules strictly. The analysis confirms some correct implementations, such as the fact that submitting a complaint which lacks a description of the title of the allegedly infringed copyrighted work significantly increases the odds that the request will be rejected. However, it also yields some counterfactual, such as the fact that submitting a take-down complaint which lacks any description (including the title) of the copyrighted work improves by up to 40 times the rate of a successful take-down request. Also, Google’s processes do not appear to check if the URL in the take-down request is valid. The analysis also shows that notwithstanding Google’s implementation of the Trusted Copyright Removal Program (TCRP) to improve the quality of take-down complaints sent by reporters, some TCRP senders have a very poor track record of sending successful take-down requests. This is the first empirical confirmation of the lack of oversight under the DMCA over Internet intermediaries and their response to take-down notices. To address this very serious issue that would undermine the role of intermediaries as the watchmen of the Internet, this paper advances proposals that would disrupt the strategic behavior exhibited by the intermediaries to re-balance the positions taken by intermediaries and right-holders.