Notice and take down is a process operated by
online hosts in response to court orders or allegations that content is illegal. Content is removed by the host following notice. Notice and take down is widely operated in relation to
copyright infringement
Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
, as well as for
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
and other illegal content. In United States and European Union law, notice and takedown is mandated as part of
limited liability
Limited liability is a legal status in which a person's financial liability is limited to a fixed sum, most commonly the value of a person's investment in a corporation, company or partnership. If a company that provides limited liability to it ...
, or
safe harbour, provisions for online hosts (see the
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or s ...
1998 and the
Electronic Commerce Directive
The e-Commerce Directive, adopted in 2000, sets up an Internal Market framework for online services. Its aim is to remove obstacles to cross-border online services in the EU internal market and provide legal certainty for businesses and consumer ...
2000). As a condition for limited liability online hosts must expeditiously remove or disable access to content they host when they are notified of the alleged illegality.
United States
The
Online Copyright Infringement Liability Limitation Act
The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional 'safe harbor' for online service providers (OSP) (a group which includes internet service providers (ISP) and other Inter ...
, passed into law in 1998 as part of the
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or s ...
provides safe harbour protection to "online service providers" for "online storage" in section 512(c). Section 512(c) applies to online service providers that store copyright infringing material. In addition to the two general requirements that online service providers comply with standard technical measures and remove repeat infringers, section 512(c) also requires that the online service providers: 1) do not receive a financial benefit directly attributable to the infringing activity, 2) are not aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the allegedly copyright infringing material.
An online service provider can be notified through the copyright owner's written notification of claimed infringement. Section 512(c) lists a number of requirements the notification must comply with, including:
* Identification of the copyrighted work claimed to have been infringed and information reasonably sufficient to permit the service provider to locate the material.
* Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number and email address
* A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
* A statement that the information in the notification is accurate, and under penalty of
perjury
Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Provided the notification complies with the requirements of Section 512, the online service provider must expeditiously remove or disable access to the allegedly infringing material, otherwise the provider loses its safe harbour and is exposed to possible liability.
The online service provider may additionally limit its liability for the removal of the material itself as well as its liability for restoring the removed material, by complying with a counter notification process. In this process, the service provider must promptly inform the subscriber of the removal of the content.
If the subscriber then objects via a counter notification, the service provider must notify the party which filed the original notice. If the party does not bring a lawsuit against the subscriber within 14 days, the service provider must then restore the material to its location on its network.
Like the original notification, the counter notification include specific elements:
* The subscriber's name, address, phone number and physical or electronic signature.
* Identification of the material and its location before removal.
* A statement under penalty of perjury that the material was removed by mistake or misidentification.
* Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.
Implementing a counter notification process is not a requirement for the safe harbor protections. A service provider may decline to restore the allegedly infringing material, or to notify the subscriber at all, limiting the recourse available to the subscriber.
If the court determines that the copyright owner misrepresented the claim of copyright infringement, the copyright owner becomes liable for any damages that resulted to the online service provider from the improper removal of the material. The online service provider is also required to appropriately respond to "repeat infringers", including termination of online accounts. On this basis online service providers may insert clauses into user service agreements which allow them to terminate or disable user accounts following repeat infringement of copyright. Identification of "repeat infringer" may occur through repeated notice and takedown requests, while other online service provider require a determination by a court.
European Union
The basis for notice and takedown procedures under EU law is article 14 of the
Electronic Commerce Directive
The e-Commerce Directive, adopted in 2000, sets up an Internal Market framework for online services. Its aim is to remove obstacles to cross-border online services in the EU internal market and provide legal certainty for businesses and consumer ...
, adopted in 2000. Article 14 applies to content hosts in relation to all "illegal activity or information". Online hosts are not liable for the illegal activity, or information placed on its systems by a user, so long as the online host does not have "actual knowledge" of the activity or information. Upon obtaining such knowledge, the online host must act expeditiously to remove or to disable access to the information.
The Directive does not set out notice and takedown procedures but it envisaged the development of such a process because online hosts who fail to act expeditiously upon notification lose limited liability protection. The Directive suggests that voluntary agreements between trade bodies and consumer associations could specify notice and takedown processes, and that such initiatives should be encouraged by member states.
In most EU countries at the national level, there are no explicit rules regarding notice of infringement, take-down process or counter notice and put back (statutory rules exist in smaller countries like Hungary and Finland). Where explicit rules do not exist (e.g. Germany), some aspects of notice requirements can be derived from common principles of law. By nature, this lack of explicit rules results in a lack of clarity and legal certainty when compared to legal regimes with statutory rules (e.g. United States).
In October 2013, the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
ruled in the
Delfi AS v. Estonia case that the Estonian news website Delfi was liable for defamatory comments by users in an article. The court stated that the company "should have expected offensive posts, and exercised an extra degree of caution so as to avoid being held liable for damage to an individual’s reputation" and its notice and take down comments moderation system was "insufficient for preventing harm being cause to third parties".
India
In India takedown requests can happen through Section 69A of
Information Technology Act, 2000
The Information Technology Act, 2000 (also known as ITA-2000, or the IT Act) is an Act of the Indian Parliament (No 21 of 2000) notified on 17 October 2000. It is the primary law in India dealing with cybercrime and electronic commerce.
Secon ...
.
Criticism
Notice and takedown has been criticised for over-blocking or take down of non-infringing content. In 2001 the
Electronic Frontier Foundation
The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed on 10 July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet ci ...
launched a collaborative clearinghouse for notice and takedown requests, known as ''
Chilling Effects
Lumen, formerly Chilling Effects, is an American collaborative archive created by Wendy Seltzer and founded along with several law school clinics and the Electronic Frontier Foundation to protect lawful online activity from legal threats. L ...
''.
Researchers have been using the clearinghouse to study the use of cease-and-desist demands, primarily looking at
DMCA
The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or s ...
512 takedown notices, but also non-DMCA copyright issues, and trademark claims. A 2005 study into the DMCA notice and take down process by Jennifer Urban and Laura Quilter from the
Samuelson Law, Technology and Public Policy Clinic
The University of California, Berkeley, School of Law (commonly known as Berkeley Law or UC Berkeley School of Law) is the law school of the University of California, Berkeley, a public research university in Berkeley, California. It is one of ...
concluded that "some notices are sent in order to accomplish the paradigmatic goal of 512 – the inexpensive takedown of clearly infringing hosted content or links to infringing web sites". However, on the basis of data on such notices the study concluded that the DMCA notice and take down process "is commonly used for other purposes: to create leverage in a competitive marketplace, to protect rights not given by copyright (or perhaps any other law), and to stifle criticism, commentary and fair use". However, it is misleading to conclude that these problems do not arise under the E-Commerce Directive, which does not provide for a statutory notice and take-down procedure, since these chilling effects are a specific problem of provider liability as such.
In 2007 numerous US based online service providers hosting
user generated content
User-generated content (UGC), alternatively known as user-created content (UCC), is any form of content, such as images, videos, text, testimonials, and audio, that has been posted by users on online platforms such as social media, discussion f ...
implemented
content recognition technology to screen uploaded content for possible copyright infringement. These content ID systems, such as operated by
YouTube
YouTube is a global online video platform, online video sharing and social media, social media platform headquartered in San Bruno, California. It was launched on February 14, 2005, by Steve Chen, Chad Hurley, and Jawed Karim. It is owned by ...
, are outside the Digital Millennium Copyright Act mandated notice and takedown process. The Electronic Frontier Foundation, along with other civil society organisations published principles on user generated content, calling for the protection of legitimate use of copyright protected works, prior notification of the uploader before removal or the placement of ads on the content, use of the DMCA counter notice system, including reinstatement upon counter note and the failure of the copyright owner to bring a lawsuit.
The Electronic Commerce Directive, unlike the Digital Millennium Copyright Act, did not define so called ''notice and action'' procedures under article 14 of the Directive. Member states implemented diverging approaches on the duty to act expeditiously and on when an online host obtains "actual knowledge" in relation to notifications. Inconsistent approaches to whether online service providers, such as search engines or social media networks, fall within the definition of
online host, under article 14 developed across the EU. As a result, notice and takedown procedures are fragmented across EU member states and online hosts face considerable
legal uncertainty. The
European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body o ...
consulted on notice and action procedures under article 14 in 2010, and has launched a new initiative in June 2012. The European Commission observed that "Online intermediaries face high compliance costs and legal uncertainty because they typically have operations across Europe, but the basic rules of Article 14 are interpreted in different ways by different national courts (sometimes even within the same member state)." As part of the initiative the European Commission intends to clarify which online service providers fall within the article 14 definition of online hosts. The initiative assesses whether different categories of illegal content require different notice and action approaches.
It seems that in 2013 the European Commission's notice and action initiative has come to a halt. The reason for this is unclear. One aspect might be to avoid bad publicity, since notice and take down is associated with chilling effects on free speech as described above. The other reason might be the following problem: the EU Commission already made it quite clear that it does not want to change the Electronic Commerce Directive – while indeed it seems impossible to provide legal certainty in the take down process without a binding legal underpinning.
Notice and stay down
The term notice and stay down is used to refer to the concept of additionally requiring that a service, after it has received a request to take down a certain copyrighted work, must also prevent the same work from becoming available on the service again in the future.
Proposals for such concepts typically prescribe the implementation of automatic content recognition, similar to
YouTube
YouTube is a global online video platform, online video sharing and social media, social media platform headquartered in San Bruno, California. It was launched on February 14, 2005, by Steve Chen, Chad Hurley, and Jawed Karim. It is owned by ...
's "Content ID" system, that would proactively filter identified works and prevent them from being re-uploaded. Proposals for notice and stay down rules have been made in the United States by pro-copyright lobbyists, and constitute Article 17 of the EU's
Directive on Copyright in the Digital Single Market
The Directive on Copyright in the Digital Single Market, formally the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96 ...
.
The concept of notice and stay down has faced criticism; it has been noted that the only way to reliably enforce such an obligation would be through automatic filtering, which is subject to the possibility of
false positive
A false positive is an error in binary classification in which a test result incorrectly indicates the presence of a condition (such as a disease when the disease is not present), while a false negative is the opposite error, where the test resul ...
s, and the inability to detect lawful uses of an affected work (such as
fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
). The
Electronic Frontier Foundation
The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed on 10 July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet ci ...
argued that requiring proactive monitoring of user content would place the burden of copyright enforcement on service providers (thus defeating the purpose of safe harbors), and would be too costly for
newly-established companies (thus bolstering incumbents and stifling innovation).
The implementation of Article 17 adopted by the
German parliament
The Bundestag (, "Federal Diet") is the German federal parliament. It is the only federal representative body that is directly elected by the German people. It is comparable to the United States House of Representatives or the House of Common ...
includes safe harbour provisions intended to prevent false positives in situations "presumably authorised by law" (such as
fair dealing
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Fair dealing is an en ...
rights), including that filters should not be applied automatically if an upload's use of copyrighted material is "minor" (defined as 160 characters of text, 125
kilobytes
The kilobyte is a multiple of the unit byte for digital information.
The International System of Units (SI) defines the prefix '' kilo'' as 1000 (103); per this definition, one kilobyte is 1000 bytes.International Standard IEC 80000-13 Quantiti ...
of image data, or video clips up to 15 seconds), in combination with other content, and using less than 50% of the original work. However, copyright holders may still oppose such use and issue takedowns, and providers must still provide "appropriate remuneration" to the copyright holder.
See also
*
Notice and notice
A "notice and notice" system is used by some internet service providers (ISPs) in relation to the uploading and downloading activities of a user of a peer-to-peer file sharing network, otherwise known as "P2P". It may occur when an ISP receives not ...
*
Non-DMCA Google takedowns on behalf of Scientology
*
Non-DMCA Google takedowns on behalf of Universal Medicine
References
{{Reflist, 30em
Computer law
United States copyright law