Undue Process: Challenges for Rightsholders and Serivce Providers Implementing Section 512\u27s Notice and Takedown Provisions

This paper empirically examines the 17 U.S.C. § 512 notice and takedown process as implemented by the Texas online service provider, The Planet. We reviewed a random sample of notices from a population of all notices processed by The Planet from August 2004 to June 2007. We used a mixed methodology, qualitatively assessing the notices, and running quantitative checks to ensure that we were not mistakenly over- or understating the importance of qualitative findings. Because the notices most clearly show sender behavior, we focus on senders’ use of section 512; we then more generally discuss the possible effects of sender behavior on targets and OSPs. We conclude that section 512 continues to be useful for copyright holders; in addition, it undoubtedly provides important innovation-promoting protection for intermediaries. Yet the section 512 regime also shows serious strain in practice, at least within our observed set of notices. A considerable group of senders have difficulty following section 512’s technical requirements and understanding the substantive underlying copyright law. Further, as expected, the large copyright industries appear to be challenged by peer-to-peer filesharing—a problem for which the notice and takedown framework does not provide immediate relief—leading them to make broader demands than are supported by section 512. Finally, the emerging dominance of third-party rights enforcement organizations (“REOs”) and trade associations, which have incentives to generate notices and achieve takedowns, add a layer of complexity to the process. Ultimately, these strains, and senders’ responses to them, likely affect both OSPs and targets. Overall, they prompt concerns about due process for targets and potential harms to Internet expression. We reaffirm our previous suggestions for reform, and call for greater information sharing and transparency to help rebalance and strengthen the section 512 process