Notice-and-Takedown Measures in Evolution

August 16, 2012

Notice-and-takedown (NTD) procedures and practices just recently caught renewed attention as a result of two events involving Google and its subsidiary YouTube. First, a video of Curiosity’s Mars landing, posted by NASA, disappeared from YouTube due to a wrongful copyright claim. The takedown was a result of certain imperfections in YouTube’s Content ID system that was devised to filter out copyright infringing material. Obviously, no rights were infringed in this case as NASA’s videos are public domain material paid for by taxpayers. It is noteworthy that this is not an isolated incident but the wrongful takedown of videos from YouTube happens relatively often.

Second, Google has announced that in the future the amount of DMCA notices a website gets will be factored in its generic search results. Even though DMCA notices will only be one out of many factors to determine the ranking of search results and will very likely leave the ranking of the most popular sites faced with a lot of such notices untouched, some commentators highlight that this constitutes a significant policy change. In essence, the argument is that whereas in the past Google was solely concerned about user satisfaction providing him the exact result he is searching for, the company now makes a certain exception to this principle by responding to certain business interests.

Leaving these arguments aside for the moment, it is important to recognize one thing: both incidents highlight the importance of carefully crafted NTD procedures and practices that should pay enough attention to certain principles. First, NTD procedures must include certain mechanisms to deal with abuses of the system. Given that notices can now have an influence on search results and keeping in mind that NTD procedures generally incite ISPs and websites to ‘over-filter’ content to avoid liability claims, effective abuse prevention is important. In this way, negative impacts on freedom of speech in the online world are also addressed.

Second, any NTD rules should not be too prescriptive. There are differences between alleged copyright infringements on YouTube and trademark infringements on eBay. Having regard to a particular business model, companies came up with their own, tailor-made methods to address infringements on their online platforms. As the example of NASA’s Curiosity Mars landing shows, even though companies employ state of the art tech solutions like Content ID, no system will ever be perfect and needs to be constantly optimized. A one size fits all approach to a system that tries to strike a very delicate balance between legal certainty, infringement of various IPRs and freedom of speech is clearly inadequate.

Third, and closely related to the second point, it is key that no company suffers from the ‘Good Samaritan paradox’ that is a particular problem in the EU legal order. Hence, by actually taking proactive measures to stop illegal activities on a platform, a company could be held to have actual knowledge of the illegal activities which would put it outside of the liability protection regime of the E-commerce Directive. Clearly, if successful Internet companies actually respond to ever-increasing calls to do more against (allegedly) illegal offers online, they should not be punished for it – and especially not with a draconian measure like losing their intermediary liability protection.

Why is this of relevance? As I have mentioned in a previous blog post, the European Commission has opened a public consultation on NTD procedures. Since many of the Commission’s future policy initiatives will depend on the submissions to this consultation, it is important to raise the points mentioned above to ensure a light and well-balanced regulatory approach that leaves sufficient space for varying business models and future innovations in the digital sphere. The deadline for submission is 5th September .

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