Section 512(c) of the DMCA provides ‘‘safe harbor’’ from liability due to copyright infringement if online service providers follow a prescribed procedure to remove copyrighted content when alerted by the copyright’s owner. 32 On receiving a properly
completed notice, an OSP should promptly remove the content in question and alert
the individual who posted it, giving her an opportunity to respond with a counternotice to the party claiming infringement—on receipt of this counternotice, the OSP
should restore the material to the Internet within 14 business days.
Seltzer argues that OSPs have a great incentive to take down potentially infringing
material (the threat of litigation from movie studios or record companies), but significantly less incentive to protect the First Amendment rights of users. Providers do not
generally alert their users that they might have a fair use argument to defend their use
of a piece of content or direct users to sites like Chilling Effects (www.chillingeffects
.org), a clearinghouse of information on takedown notices developed by Seltzer and
others. The incentives for removing content are large, and they are small—and perhaps
negative—for OSPs to encourage their users to fight takedown notices. If an OSP develops a reputation for aggressively defending user rights, it is likely to attract more users
who generate infringement claims. Each one of these claims requires time and legal
resources from an OSP to respond to—as a result, OSPs have an incentive to rapidly remove potentially infringing users and, perhaps, to discourage them from returning.
Sjoera Nas and the Dutch nonprofit Bits of Freedom wondered whether Netherlands
ISPs would defend user rights against complaints of copyright infringement, so they
mounted an experiment. In 2004, they opened accounts with ten Dutch OSPs and
posted the same public domain text written by Eduard Douwes Dekker, better known
by the pen name Multatuli. Then, they sent complaints in the name of a fictitious Mr.
Johan Droogleever, legal advisor to the E. D. Dekker Society, which claimed to hold
copyright to the works and demanded their removal. Seven of ten OSPs complied
swiftly, without challenging the claim or demanding further information, despite the
fact that the e-mail came from a Hotmail address. However, ISPs generally alerted the
fictitious customer to the takedown request. Nas concludes, ‘‘It only takes a Hotmail
account to bring a website down, and freedom of speech stands no chance in front of
the cowboy-style private ISP justice.’’ 33
Whether Seltzer or Nas is correct in being concerned that copyright infringement complaints favor IP owners rights over user rights, the mechanisms for removing
content suggest key weaknesses that censors could exploit. During the 2008 presidential election, both the Obama and McCain camps found that campaign videos were
frequently removed from YouTube. The videos in question generally featured small
excerpts from broadcast television newscasts, and takedown notices were issued
by those broadcasters. The campaigns challenged the takedowns, arguing that their
use of excerpts represented fair use. 34 Given the rapid-fire nature of political campaigns, the 14 business days it can take to restore a video to YouTube may effectively
Intermediary Censorship
79
completed notice, an OSP should promptly remove the content in question and alert
the individual who posted it, giving her an opportunity to respond with a counternotice to the party claiming infringement—on receipt of this counternotice, the OSP
should restore the material to the Internet within 14 business days.
Seltzer argues that OSPs have a great incentive to take down potentially infringing
material (the threat of litigation from movie studios or record companies), but significantly less incentive to protect the First Amendment rights of users. Providers do not
generally alert their users that they might have a fair use argument to defend their use
of a piece of content or direct users to sites like Chilling Effects (www.chillingeffects
.org), a clearinghouse of information on takedown notices developed by Seltzer and
others. The incentives for removing content are large, and they are small—and perhaps
negative—for OSPs to encourage their users to fight takedown notices. If an OSP develops a reputation for aggressively defending user rights, it is likely to attract more users
who generate infringement claims. Each one of these claims requires time and legal
resources from an OSP to respond to—as a result, OSPs have an incentive to rapidly remove potentially infringing users and, perhaps, to discourage them from returning.
Sjoera Nas and the Dutch nonprofit Bits of Freedom wondered whether Netherlands
ISPs would defend user rights against complaints of copyright infringement, so they
mounted an experiment. In 2004, they opened accounts with ten Dutch OSPs and
posted the same public domain text written by Eduard Douwes Dekker, better known
by the pen name Multatuli. Then, they sent complaints in the name of a fictitious Mr.
Johan Droogleever, legal advisor to the E. D. Dekker Society, which claimed to hold
copyright to the works and demanded their removal. Seven of ten OSPs complied
swiftly, without challenging the claim or demanding further information, despite the
fact that the e-mail came from a Hotmail address. However, ISPs generally alerted the
fictitious customer to the takedown request. Nas concludes, ‘‘It only takes a Hotmail
account to bring a website down, and freedom of speech stands no chance in front of
the cowboy-style private ISP justice.’’ 33
Whether Seltzer or Nas is correct in being concerned that copyright infringement complaints favor IP owners rights over user rights, the mechanisms for removing
content suggest key weaknesses that censors could exploit. During the 2008 presidential election, both the Obama and McCain camps found that campaign videos were
frequently removed from YouTube. The videos in question generally featured small
excerpts from broadcast television newscasts, and takedown notices were issued
by those broadcasters. The campaigns challenged the takedowns, arguing that their
use of excerpts represented fair use. 34 Given the rapid-fire nature of political campaigns, the 14 business days it can take to restore a video to YouTube may effectively
Intermediary Censorship
79