It's a sign of the times that online companies’ transparency reports are starting to include a new section: the Hall of Shame. Automattic, the company behind WordPress, is the latest to do so, highlighting examples of copyright and trademark overreach by prominent figures like Janet Jackson, as well as more local businesses, organizations, and individuals attempting to silence criticism and other noninfringing speech. It even highlighted one example we've written about—and even dedicated a short video to—in which a baked goods company misused trademark to go after bloggers talking about derby pie, a common regional dessert in the Southern U.S. And WordPress is only the latest company to name-and-shame takedown abusers—the Wikimedia Foundation made a major splash last month when it highlighted the copyright saga behind a notorious monkey selfie.
We've kept up a Takedown Hall of Shame of our own for years. But these cases of egregious abuse tell only part of the story, and transparency reports also help call attention to a more subtle issue: a large percentage of takedown requests that do not result in content removal. That is to say, services routinely receive large numbers of bogus takedown demands.
There's a real trend here. According to the latest numbers, Twitter does not comply with nearly 1 in 4 takedown notices it receives; Wikimedia complies with less than half; and WordPress complies with less than two-thirds. Each organization explains in its report that the notices with which they don't comply are either incomplete or abusive.
When companies choose not to take down content because the notice is abusive, that's a way of standing with their users, and it's a significant decision. The bargain in the DMCA is straightforward: as long as services comply with takedown notices that meet the statutory requirements, they're granted a "safe harbor" from any legal liability for copyright infringement that might otherwise arise from their hosting of user content. This had led some companies to take the short-sighted approach of removing all content for which they receive a takedown request, even if the request is defective or the content is obviously non-infringing. Since the law was enacted a decade and a half ago, some people have used the takedown mechanism as a censorship tool—sending careless or fraudulent notices in an attempt to silence lawful speech, and hoping that online services will comply just to stay in that safe harbor. And although the DMCA includes a mechanism to punish certain fraudulent takedown requests, the provision has proven difficult to enforce.
In other words, there's a lopsided legal incentive that frequently results in services taking down non-infringing speech. The companies that stand up to bogus requests deserve kudos for doing so, and transparency reports are a good place to highlight that user-friendly behavior while also providing data about how often people are trying to abuse the DMCA.
The data from the transparency reports also supports the common understanding that users send counter-notices in only a relatively tiny number of cases. For example, Automattic reports that it got only 44 counter-notices for the 3,630 takedown notices that it received. After a short waiting period, a company can restore content for which it has received a valid counter-notice without losing its safe harbor protection. This is an important way for users to restore their non-infringing speech to public view.
Supporters of the status quo argue that the low rate of counter-notice means that most notices legitimately target infringement. But that suggestion doesn't take into account how confusing and difficult the counter-notice process can be, and the fact that many users are intimidated by the requirement that they agree to be sued in federal court in case the rightsholder wants to claim copyright infringement (even though this is already true for users who are subject to the jurisdiction of U.S. federal courts). Users also fear the massively disproportionate statutory damages available to copyright claimants and the significant expense of defending even a winning copyright case, and allow themselves to be silenced rather than facing the expense and risk of vindicating their speech in courts.
The notice-and-takedown process is supposed to balance the interests of rightsholders, online platforms, and the general public, and transparency reports are an important mechanism to verify that's happening. The numbers paint a troubling picture. Across the Web, we've seen report after report that the number of takedown notices sent to online services is skyrocketing. These three latest transparency reports support that notion, with Twitter in particular reporting a nearly 40% increase in just six months.
Taken together with the number of bogus takedowns and the rarity of counter-notices, it's clear that the task of defending free speech is increasingly falling on online services. The notice-and-takedown system unfortunately provides yet another example of how aggressive mechanisms of copyright enforcement are abused to censor legitimate content. We applaud those service providers who stand up to this abuse on behalf of their users.