Improving the Flipside of Notice-and-Takedown: Counternotice

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On paper, the DMCA’s “notice and takedown” provisions are a decent compromise between the interests of creators, content hosts, and Internet users. But the implementation has been lacking. Many leading Internet commenters, who note that these provisions are “widely abused“—are very critical of them, and the Chilling Effects Clearinghouse tracks their abuses.

Under these provisions, Internet content hosts get a safe harbor that protects them from being liable for content their users post, provided they follow certain procedures. Basically, a content owner sends a notice to the web hosts about allegedly infringing content, who then takes it down. The user can then file a counternotice and have the content put back up, in which case the fight is between the user and the content owner.

This is not a perfect system—for instance, takedown should not happen until the user has a chance to contest the claim. Because the default is to take down the material, the system has been used inappropriately—for example, for political purposes.

But one of the best ways to fix the system now without changing the law is to make the process of filing counternotices easier, to make it simpler for ordinary users to get content back up on the Internet if it isn’t really infringing. That’s why today’s announcement from Google is pretty good news. Some of the coverage of this announcement makes it seem like Google has decided to start fighting against its users. PCMag’s story, for instance, is headlined “Google Promises Stricter Copyright Enforcement.”

It sounds more like Google is implementing notice-and-takedown the way it should be. Its post reads in part,

We will build tools to improve the submission process to make it easier for rightsholders to submit DMCA takedown requests for Google products (starting with Blogger and web Search). And for copyright owners who use the tools responsibly, we’ll reduce our average response time to 24 hours or less. At the same time, we’ll improve our “counter-notice” tools for those who believe their content was wrongly removed and enable public searching of takedown requests.

I’ve bolded the part that I think is most important. First, Google is building in an incentive to copyright holders to not abuse the system by filing frivolous notices. Second, it's taking steps to make filing counter-notices easier, which should help to make the system more balanced—as the drafters of notice-and-takedown intended.

This seemingly-small change shows that, whether or not you think the DMCA should be scrapped, it’s possible to make improvements to the system and still comply with current law.

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