Notice And Takedown Research Articles

Stoking the Flames: Understanding Escalation in an Online Harassment Community

Online harassment remains a prevalent problem for internet users. Its impact is made orders of magnitude worse when multiple harassers coordinate to conduct networked attacks. This paper presents an analysis of 231 threads in Kiwi Farms, a notorious online harassment community. We find that networked online harassment campaigns consists of three phases: target introduction, network decision, and network response. The first stage consists of the initial narrative elements, that are approved or not in stage two and expanded in stage three. Narrative building is a common element of all three stages. The network plays a key role in narrative building, adding elements to the narrative in at least 80 % of the threads, resulting in sustained harassment. This finding is central to our model of Continuous Narrative Escalation (CNE), that has two parts: (1) narrative continuation, the action of repeatedly adding new information to the existing narrative and (2) escalation, the aggravation of harassment that occurs as a consequence. In addition, we present insights from our analysis of 100 takedown requests threads, discussing received abuse reports. We find that these takedown requests are misused by the community and are used as elements to further fuel the narrative. We use our findings and framework to come up with a set of recommendations, that can inform harassment interventions and make online spaces safer.

Fan Art in E-Commerce Marketplace Copyright Protection: A Study of the Chinese Experience

This research article aims to explore the Chinese experience in dealing with fan art within the copyright protection framework on e-commerce marketplaces. The findings highlight the complex relationship between fan art, copyright infringement, and e-commerce platforms in China. While fan art has become a significant cultural phenomenon and a means of artistic expression, it often infringes upon the copyrights of the original creators. The article examines the legal implications and challenges associated with fan art, focusing on its impact on intellectual property rights and the e-commerce environment. Furthermore, the study analyzes the measures taken by Chinese e-commerce marketplaces and the government to address the issue of copyright infringement in fan art. The research evaluates the effectiveness of existing copyright protection mechanisms, such as takedown notices, filtering technologies, and legal enforcement actions. This article investigates the Chinese experience in dealing with fan art within the copyright protection framework on e-commerce platforms. The article also explores the impact of Chinese internet culture and the attitudes of fan artists and consumers towards copyright protection. Additionally, it investigates the opinions and experiences of copyright holders in relation to fan art on e-commerce platforms. Overall, this research article provides valuable insights into the Chinese experience of addressing fan art within the copyright protection system on e-commerce marketplaces. By understanding the challenges and potential solutions, policymakers, copyright holders, and e-commerce platform operators can gain perspectives and develop strategies for adapting copyright protection mechanisms in the digital era.

PERMASALAHAN PENGGUNAAN YOUTUBE FAIR USE DALAM KASUS TOTALLY NOT MARK VS TOEI ANIMATION

The case of Totally Not Mark vs. Toei Animation stole attention in the Youtube community back in 2021, when Toei Animation targeted Totally Not Mark with 150 separate copyright strikes on his channel, all manually filed by Japanese animation studio Toei Animation. According to the YouTuber, Toei Animation submitted YouTube direct takedown requests for all 150 videos, which may result in the content being removed from his channel instantly, as well as strikes that would end his channel entirely. YouTube apparently responded to such notices, asking Toei to clarify whether they had considered fair usage and requesting additional justification from Toei. This raised issues within the IP industry, where Youtube, a company based in the United States, recognizes fair use while Toei Animation, a company based in Japan, does not. According to YouTube, what Toei Animation did Instead of replying to YouTube's request for justification for their takedown notices, they used their own tools behind YouTube's back to manually claim and block every one of the 150 videos in the Totally Not Mark catalog of content. To summarize, Toei explicitly broke the rules in this case. However, if Toei Animation had used Japanese IP Law instead, YouTube would likely have honored their removal, removed the videos worldwide, and potentially struck out the Totally Not Mark channel.

ПОРЯДОК ПРИПИНЕННЯ ПОРУШЕНЬ АВТОРСЬКОГО ПРАВА З ВИКОРИСТАННЯМ МЕРЕЖІ ІНТЕРНЕТ: НОВАЦІЇ ПРАВОВОГО РЕГУЛЮВАННЯ

ПОРЯДОК ПРИПИНЕННЯ ПОРУШЕНЬ АВТОРСЬКОГО ПРАВА З ВИКОРИСТАННЯМ МЕРЕЖІ ІНТЕРНЕТ: НОВАЦІЇ ПРАВОВОГО РЕГУЛЮВАННЯ

The Last Line of Defense: Addressing Section 512(g)’s Dwindling Capacity to Protect Educational Fair Users on the Internet

The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).
 The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. But educational content provides a curious case study. While educational content is a nebulous concept to describe, here it may be defined as materials—from video lectures to digital course packs—that are created wholly or in part by users, uploaded to OSPs, and designed to aid in online educational pursuits. Because copyrighted works play a central role in the explication of such topics as literature, art, and music, any increase in educational content will also inevitably bring with it an increase in the use of copyrighted materials. Even though educational uses of copyrighted works are often considered to be fair use, users who incorporate these works into their educational content remain vulnerable to infringement claims, which can cause their educational content to be removed.
 This lack of protection for educational content applies to all users—“non-institutional” or “institutional”—who create and upload teaching materials containing portions of copyrighted works. Educational content therefore provides a compelling case study illustrating the limited defenses afforded to all user-generated content, whether or not it is educational in nature: If fair use educational content is considered non-infringing but nevertheless subject to removal under the guise of copyright infringement, then any non-infringing user-generated content is potentially vulnerable to the same fate. Indeed, in response to the COVID-19 pandemic, YouTube increased the automation of its takedown practices, making it easier for rightsholders to have content that incorporates their copyrighted works removed—regardless of the purpose of the use.
 While the situation may look bleak for producers of both educational and non-educational content, users possess a shield against erroneous takedown notices. Enacted as part of the Digital Millennium Copyright Act (DMCA), the § 512(g) counter-notification measure grants OSP users the ability to contest the takedown of their content. However, studies have shown that this feature may generally be under-utilized, both in terms of overall volume and in relation to the amount of potentially invalid takedown notices that may warrant its use. Moreover, given additional evidence that submitted counter-notifications may be erroneous more often than not, this Note argues that the main issues plaguing the counter-notification system point to an overdeterrence of the wrong users—that is, users such as university professors and other educational content creators who are permissibly using copyrighted materials.
 This Note provides a more thorough examination of the issues besetting the counter-notification process, particularly with respect to its use in education. In Part I, I discuss the functionality of the counter-notification process within the greater legal and historical background of the DMCA, focusing on the unique challenges faced by educational content creators who seek to use counter-notifications on YouTube. In Part II, I discuss the tripartite problem facing counter-notification petitioners: (1) Counter-notifications are under-utilized overall; (2) counter-notifications are over-utilized by pirates for whom the educational fair use defense does not apply; and (3) the timeframe for “putting back” material is costly to users and rightsholders alike. Finally, in Part III, I propose a “First Shot” system whereby a preemptive “counter-notification” can be used to assert educational fair use and delay takedown of educational content before a rightsholder acts. The First Shot therefore substitutes for the regular counter-notification, a privilege only for educational “Fair Users.”

Perma.cc and Web Archival Dissonance with Copyright Law

This is a preprint. Please review and cite LRSQ published version. Harvard’s Perma.cc offers the solution to linkrot—the phenomenon that citations in academic journals to web materials disappears with the passage of time, resulting in “broken links” and disappearance of material from the Web. This article will describe Perma.cc and outline the kinds of copyright issues that may arise, including heavy use of copyright statutes and caselaw. It will examine the kind of preservation use of copyrighted materials, with reference to fair use, and the library prerogatives as exceptions to the exclusive rights of authors of materials found on the Web. This analysis includes detailed analysis of “transformative use” and the four factors of 17 U.S.C. § 107. It will consider the liability of Perma.cc and participating libraries and institutions under theories of contributory infringement and vicarious liability, including as modified by 17 U.S.C. § 512(c) and (d), governing takedown notices. The article concludes that Perma.cc’s archival use is neither firmly grounded in existing fair use nor library exemptions, that Perma.cc, its “registrar” library and institutional affiliates, and its contributors have some (at least theoretical) exposure to risk, and that current copyright doctrines and law do not adequately address web archival storage for scholarly purposes. In doing so, it will question what the role of the scholarly Perma.cc citation ought to play—confirmation of scholarly propositions or preservation of and access to web materials. The material and conclusions in this article are important for legal authors, law review editors, and librarians (especially those who use, support, or are considering partnering with Perma.cc); so that they might better assess copyright compliance, especially when selecting materials for archiving, such as articles from news sites, blogs, and professional and scholarly papers, articles or books.

Perma.cc and Web Archival Dissonance with Copyright Law

Harvard’s Perma.cc offers the solution to link rot—the phenomenon that citations in academic journals to Web materials disappear with the passage of time, resulting in “broken links” and disappearance of material from the Web. This article will describe Perma.cc and outline the kinds of copyright issues that may arise, including heavy use of copyright statutes and case law. It will examine the kind of preservation use of copyrighted materials, with reference to fair use, and the library prerogatives as exceptions to the exclusive rights of authors of materials found on the Web. This analysis includes detailed analysis of “transformative use” and the four factors of 17 U.S.C. § 107. It will consider the liability of Perma.cc and participating libraries and institutions under theories of contributory infringement and vicarious liability, including as modified by 17 U.S.C. § 512(c) and (d), governing takedown notices. The article concludes that Perma.cc’s archival use is neither firmly grounded in existing fair use nor library exemptions; that Perma.cc, its “registrar” library, institutional affiliates, and its contributors have some (at least theoretical) exposure to risk; and that current copyright doctrines and law do not adequately address Web archival storage for scholarly purposes. In doing so, it will question what the role of the scholarly Perma.cc citation ought to play—confirmation of scholarly propositions or preservation of and access to Web materials. The material and conclusions in this article are important for legal authors, law review editors, and librarians (especially those who use, support, or are considering partnering with Perma.cc) so that they might better assess copyright compliance, especially when selecting materials for archiving, such as articles from news sites, blogs, and professional and scholarly papers, articles, or books.

Efficient Copyright Filters for Online Hosting Platforms

In this paper, we build a theoretical model in which an online hosting platform can develop a copyright filter to screen content that contributors wish to upload. The technology is imprecise, since non-infringing material may be incorrectly filtered out. Once the content is hosted on the platform, a right-holder may send a take-down notice if its own automated notice system, also imprecise, finds it to be copyright infringing. We investigate the efficient design of regulation and liability and we find that (i) the right-holder should be given incentives to evaluate fair use when submitting a notice and (ii) the platform should be fined if the take-down to notice ratio is above some predetermined threshold. Such dual system would achieve efficient copyright enforcement without excluding fair-use material.

Isn’t Infringement Ever Apparent?: Toward a Balanced Reading of §512 of the Digital Millennium Copyright Act

This Article argues for a moderate but significant recalibration of the dominant interpretation of §512 of the DMCA. While ISPs are correct that the existing language of §512 does not give copyright owners a right to the “take down and stay down” regime they would prefer, it does ask more of them than is presently being required. Receipt of a takedown notice does provide an ISP with information that is supposed to be relevant to its awareness of other apparent infringement beyond that specifically identified in the notice. Moreover, the standards for what facts and circumstances give rise to knowledge of “apparent” infringement have been construed in a manner more stringent than those commonly applied even to criminal defendants or persons facing civil forfeiture. Finally, the doctrine of willful blindness means that where circumstances indicate an objectively high likelihood that certain conduct is illegal, one has a duty to avail oneself of obvious opportunities to disconfirm the inference. This duty is narrow, and does not require an ISP to engage in comprehensive monitoring, filtering, or affirmatively searching for instances of infringement for which no red flag has been raised. But indicia of infringement are not as radically elusive as has been made out, and §512(m) should not be read so as to equate efforts to disconfirm already-known instances of likely infringement with the affirmative seeking out of evidence of infringement that the statute says is not generally required.

Removing Incivility from Google: What determines the number of government content take-down requests?

Requesting Internet platform providers to remove content is one of the common approaches for government worldwide to regulate online incivility. This study investigates the driving forces behind the variation in the number of uncivil content removal requests across countries. By connecting data from the 2017 Google transparency report to a host of societal level indicators, this study finds that the quantity of uncivil content removal requests is related to both social reality and political value factors. Countries with high levels of social vulnerability and low levels of freedom of speech tend to send more requests to Google for removing online incivility. However, democratic and non-democratic societies show different patterns: social reality and political values play important roles in democratic societies while in non-democratic societies, social reality is the only determining factor.

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

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.

The implications of digital collection takedown requests on archival appraisal

As data privacy legislation and protections are implemented and advocated for internationally, archivists must consider how these developments impact their work, particularly appraisal. Online digital collections make records more easily accessible to researchers and the general public. However, private and sensitive information may be disseminated through these collections inadvertently. In 2018, the European Union (EU) passed the General Data Protection Regulation, which includes right to be forgotten (RTBF) legislation. This enables EU citizens to request the redaction of their personal information online. In the wake of EU court rulings which demonstrate how the RTBF impacts what archives make accessible, and increasing public concerns regarding online privacy, archivists should be aware of the possibility of receiving increased digital collection takedown requests and what their legal liabilities may be. This article explores how takedown requests, as well as RTBF advocacy and criticism, are positioned with respect to appraisal theory. It also addresses how takedown requests affect appraisal praxis and how archivists can be better prepared to manage them.

Notice and Take Down: How the Shift from Copyright Law to Chinese E-Commerce Law Poses an Unnecessary Disturbance to E-Commerce

The notice-and-take-down (NTD) procedure, as an enforcement tool of copyright, is equitable and balanced. However, its applicability to other types of intellectual property depends on necessary adaptation. Currently, the Chinese Tort Liability Law has created an incomplete NTD procedure applicable to all kinds of civil rights, and Chinese e-commerce platforms have managed an internal NTD procedure in which they decide on IP infringements and measures to take. The Chinese E-Commerce Law has created a new NTD procedure exclusively for e-commerce, which requires the automatic removal of allegedly infringing items for at least 15 days and an automatic restoration of removed items in the absence of complaints submitted to relevant authorities by the holders of IP rights. The new procedure will seriously affect e-commerce due to its automatic removal measures, even more so in light of the current problem in China of IP trolls. The e-commerce platforms will probably resist the injunction-like NTD procedure in order to maintain their controlling role, so as to protect the interests of online stores as well as their own interests.

Feminist legal geographies of intimate-image sexual abuse: Using copyright logic to combat the unauthorized distribution of celebrity intimate images in cyberspaces

Women’s rights are often curtailed online due to the pervasive internet atmosphere of cybermisogyny. Extreme examples include ‘image-based sexual abuse’, a term which encompasses the non-consensual creation and/or distribution of private sexual images. The harms attached to this phenomenon are well documented. In this paper, we explore how copyright logic, despite its male-centric and property oriented worldview, presents one legal solution to this problem. We assert that Digital Millennium Copyright Act Takedown Notices, a copyright mechanism that notifies websites they are hosting infringing content and requires the prompt removal of the content, represents a novel legal mechanism to force websites to remove image-based sexual abuse from women’s online spaces. By using critical discourse analysis to review how Digital Millennium Copyright Act Takedown Notices attempt to provide solutions to the socio-spatial problem of image-based sexual abuse, we argue that copyright can subvert its current leanings to return to its original purpose: supporting creativity. Supporting creativity also helps to protect against the reproduction of gendered harms, from the real world to virtual spaces. This theorization represents not just legal geography but a feminist legal geography, in that it recognizes the internet should be a safe and legal space for women. In endorsing a pragmatic legal solution for women to regulate the sexually violent and nonconsensual distribution of their intimate images online, copyright is one mechanism that affirms women’s right to cyberspaces.

The Right Tools: Europe's Intermediary Liability Laws and the EU 2016 General Data Protection Regulation

The so-called “Right to Be Forgotten” established by the Court of Justice of the European Union in 2014 is about to change. The EU’s General Data Protection Regulation (GDPR), which goes into effect in 2018, introduces new notice-and-takedown rules for online information targeted by “Right to Be Forgotten” erasure requests. As drafted, the new rules make deliberate or accidental over-removal of online information far too likely. They give private Internet platforms powerful incentives to erase or de-list user-generated content – whether or not that content, or the intermediaries’ processing of the content, actually violates the law. They also create new data disclosure obligations that undermine privacy and Data Protection rights for people who post content online. These problems could be mitigated, without threatening the important privacy protections established by the GDPR, through procedural checks and balances in the platforms’ removal operations. This article details the problematic GDPR provisions, examines the convergence of European Data Protection and Intermediary Liability Law, and proposes ways that the EU’s own Intermediary Liability laws can restore balanced protections for privacy and information rights. Throughout, it focuses on the motivations and likely real-world behavior of online platforms, drawing on the author’s extensive experience as Google’s Associate General Counsel for Intermediary Liability and as Intermediary Liability Director at Stanford Law School’s Center for Internet and Society. It includes close examinations of Whether and how the “Right to Be Forgotten” may apply to user-generated content hosts like Twitter or Facebook; Free expression provisions in the GDPR; The GDPR’s extraterritorial reach and consequences for companies outside the EU; Doctrinal tensions between the EU’s Intermediary Liability law under the eCommerce Directive, and its Data Protection law under the 1995 Data Protection Directive and the new GDPR; and Human rights and fundamental rights laws governing online notice and takedown operations.

The Right to Be Forgotten and Implications on Digital Collections: A Survey of ARL Member Institutions on Practice and Policy

In the spring of 2017, digital librarians and digital collection managers at member institutions of the Association of Research Libraries (ARL) were surveyed on practices and policies surrounding takedown requests in openly accessible digital collections. The survey collected basic demographic information surrounding the digital repositories (anonymized) and presented a series of hypothetical scenarios for respondents to consider and reflect upon. The survey received a 25.8 percent response rate, with many intriguing insights. Survey findings are presented, along with a discussion on future recommendations for work in this area.

Scholarly Concerns About a Proposed Copyright Small Claims Tribunal

Bills recently introduced in the House of Representatives, in 2016 and again in 2017, would implement a proposal by the U.S. Copyright Office to establish a small claims tribunal within the Office. The Copyright Alternatives in Small-Claims Enforcement (CASE) Act of 2017, H.R. 3945, would authorize creation of a centralized tribunal system to adjudicate small copyright infringement claims as well as abuse of notice-and-takedown claims under 17 U.S.C. § 512(f). The bill, like its predecessors in 2016, is largely based on draft legislation developed by the Copyright Office in its 2013 Report on Copyright Small Claims. Recognizing that enactment of legislation of this sort may have profound effects on copyright in the U.S., the Berkeley Center for Law & Technology (BCLT) and UC Hastings College of the Law convened a workshop In February 2017. Eighteen scholars specializing in economics, civil procedure, and intellectual property law discussed the small copyright claims legislation contemplated in the Copyright Office Report and the bills introduced in 2016. This report describes the range of issues discussed. Reservations expressed at the workshop fell into six principal categories: 1) constitutionality concerns; 2) breadth of jurisdiction; 3) process concerns about claiming, adjudicating, and appealing the outcomes if the proposal was enacted as is; 4) potential for abuses; 5) underexplored alternatives; and 6) larger questions about the proposal, including whether copyright is so special that it should have a tribunal of its own, given that many federal laws are underenforced because of the high costs of litigation. The range and seriousness of concerns lead to the conclusion that further consideration is warranted before moving forward with proposed legislation.

Twitter Trouble: The Communications Decency Act in Action

The Communications Decency Act affords Internet service providers (ISPs) immunity from liability for defamation, among other crimes, to allow self-policing of websites. However, due to this immunity, websites have no incentive to remove defamatory content, which undermines the entire purpose of the Communications Decency Act. To improve this statute and promote the removal of defamatory content, the United States should follow in the footsteps of countries with more effective Internet laws. This Note presupposes that a higher percentage of Twitter removal requests in which Twitter has withheld some content indicates a higher efficacy of the Internet laws in those countries. The data published by Twitter shows that France, Germany, Japan, the Netherlands, and Russia are the top five countries in terms of percentage of removal requests with which Twitter has complied. Four of these five countries have laws similar to the notice and takedown provision of the Digital Millennium Copyright Act, which requires an Internet service provider to quickly remove content once made aware of its unlawful nature. Therefore, a notice and takedown provision with a critical opinion safe harbor should be added to the Communications Decency Act.

Born Political: A Dispositive Analysis of Google and Copyright

Google is a complex and complicated political beast with a significant, and often confusing, interest, in copyright matters. On one hand, for example, Google is widely accused of profiting from piracy. On the other, Google routinely complies with what is rapidly approaching a billion copyright takedown requests annually. In the present article, Foucault, neo-Gramscians, and Deleuze and Guattari are utilized to help construct a 32 dispositive analysis framework that overlaps three dispositive modalities (law, ethical, utilitarian) and perspectives (apparatus, articulation, assemblage). In applying the framework to the Google–copyright relationship, the article shows how Google was “born political”: in that it was, and still is, disposed by an apparatus comprised of copyright laws, Silicon Valley culture, and broad advances in digitization. Moreover, the article shows how Google continuously acts where “politics is born”: as it significantly shapes copyright considerations by disposing of (non-)human and organizational phenomena through articulations and assemblages.

Commentary to the U.S. Copyright Office Regarding the Section 512 Study: Higher Education and the DMCA Safe Harbors

The nearly twenty-year history of the Digital Millennium Copyright Act’s safe harbor provisions has been marked by criticism from content owners, online service providers, and end users. Content owners complain about the cost of monitoring online content and sending take-down notices. Online service providers complain about the cost of receiving and processing the notices. And end users complain about their legitimate use of copyrighted works being subject to DMCA take-down. Colleges and universities have been at the forefront of this controversy; as providers of online services to their students, they have been a focus of both Congress and copyright owners. To study the effect of the safe harbor provisions on such institutions, and particularly the nature, volume, and cost of the notice-and-takedown system, we surveyed colleges and universities about their copyright and DMCA practices. The results expose infirmities in the administration of the DMCA system, both within the world of higher education and within the U.S. Copyright Office, and suggest that colleges and universities need to (1) take better advantage of the safe harbors and (2) correct certain fundamental misunderstandings of important and essential aspects of the DMCA.