How Notice-and-Takedown Hurts Real People

Under DMCA rules a copyright holder can request that content hosts, such as Flickr, take down content that is believed to infringe on the holders’ copyright. Hosts will typically take down content and subsequently notify whomever posted it. The poster can then respond (after the content is already down) to argue that they were within their rights to post the content either because (a) it was the poster’s own content; (b) it was posted under fair use provisions.

Some copyright holders assert that notice-and-takedown is an acceptable approach (others insist that even this is too onerous, and that the hosts themselves should be responsible for policing their users) on the basis that if there is an error then a poster can try and remedy the take down order. Unfortunately, this assumes that whatever is taken down can be, or is, replaced in full after the order is issued. As a recent Techdirt article reveals, this isn’t always the case:

As the system “works” today, it’s open to misuse. And despite claims from proponents of the DMCA process, there’s more at stake than simply the single item in question. With one false DMCA notice, the entire history of a popular photo was erased, taking with it the story of how this “alphabet” came to be. The “notice-and-takedown” process is very obviously broken, resulting in the sort of situation Gorman has described.

When you consider the amount of damage that a single mistaken DMCA notice can do, it’s amazing that this process is still considered to be “fair” by its users. This is yet another strong argument for a notice-and-notice process in which companies and individuals would have a chance to file a counterclaim before the content is deleted, rather than having to assert their claim post-takedown and be left to clean up the resulting mess.

As someone who writes professionally I am genuinely sympathetic to copyright holders: I get that there are prospective revenue losses from infringement and acknowledge that digital copying imposes challenges for historical business models and processes. This said, if a copyright holder demonstrably fails in its due diligence when issuing a notice-and-takedown then it should be held liable, just as it is attempting to hold liable a potentially infringing user. There must be some kind of equity in the notice-and-takedown system or, better, a move to a notice-and-notice system (such as in Canada) to limit the harms that arise from poorly targeted take down efforts.