Evolution of DMCA Notices: Trends and a Timeline
The Digital Millennium Copyright Act was enacted in October 1998 to implement two WIPO treaties as well as to address some of the copyright-related issues caused by the growing and widespread use of the internet. Section 512(c)(3) of the Act, which created a notice and takedown regime for alleged online copyright infringement, requires ‘proper notification’ by the sender in order for the notice to be considered as a valid DMCA takedown request.
The six elements for proper notification under the Act are first, the signature of a person authorized to act on the copyright owner’s behalf, second, identification of allegedly infringed copyrighted work, third, identification of allegedly infringing material that may help the recipient OSP locate it, fourth, information that makes it possible to contact the complaining party, fifth, a statement of a good faith belief that the use in question is unauthorized, and sixth, a statement of accuracy and that, ‘under penalty of perjury,’ the sender is authorized to act on behalf of the copyright holder. Removal of allegedly infringing content upon the receipt of a valid DMCA request qualifies Online Service Providers (OSPs) for safe harbor protection.
While still retaining these essential features, DMCA takedown notices have evolved drastically over the two and a half decades since the initial enactment of the Digital Millennium Copyright Act, 1998. This article studies a range of DMCA takedown notices originally sent to Google and shared by Google with the Lumen Database between 1997 and 2021. Starting from a pre-DMCA copyright infringement removal request from 1997, the article will look at removal requests made available in the Lumen Database since the introduction of the DMCA in 1998. In most cases, the notices published in the database are in the form that they were originally sent and will be used to identify trends and patterns in how DMCA notices have evolved.
Pre-DMCA Removal Requests and Early DMCA Enforcement Trends
The earliest copyright infringement takedown notice available on the Lumen database here is from 1997, prior to the enforcement of DMCA and a year before Google was founded. It is a legal notice sent by a law firm agency on behalf of the copyright holder, Twentieth Century Fox, to an anonymous recipient. The notice flagged that the recipient’s website incorporated material from “The Simpsons” television series, which was owned by Fox. The firm sent two subsequent follow-ups to the recipient in this regard. First, to reiterate the request for removal of infringing contents, and the second, to thank the recipient for co-operating and removing the infringing content. The timeline from the initial request, in March 1997, to the completion of the takedown request, in June 1997, was over two months, and the law firm had attached proof of download from the infringing website.
This lengthy process, as well as the lack of any stipulated timeframe for removal, seemed standard for copyright infringement-related takedown requests prior to the DMCA. This is further evidenced by some other takedown requests, like the one sent on behalf of then-Governor George W Bush’s Counsel in April 1999 for inappropriate use of the domain ‘georgewbush.com’ and for using the copyright-protected content of his ‘Presidential Exploratory Committee’s official web campaign’ and another one sent by Twentieth Century Fox Film Corporation for infringing use of the famous (and copyrighted) “Buffy the Vampire Slayer” images and transcripts by a fan page.
This timeline, or lack thereof, was altered substantially after the introduction of the DMCA, when ‘expeditious’ compliance with takedown requests became a legal requirement for OSPs gaining immunity, and the compulsory elements of a valid copyright infringement takedown request under Section 512(3) (as discussed above) led to a more standardized format for sending DMCA takedown requests.
Additionally, prior to the DMCA, non-compliance with removal requests (such as the ones above), would necessarily lead to legal disputes in Court between both the copyright holders and the alleged infringers. However, the introduction of DMCA streamlined the removal process by conditioning immunity from liability on the removal of allegedly infringing content once a request to that effect was received by an OSP. Non-compliance would mean the loss of the OSP’s safe harbor under 512, and therefore potential liability should a court find infringement. Given these incentives, most OSPs choose to remove the material, without the rightsholder having needed to file an infringement lawsuit. After the removal of the content in question, the alleged infringing party has the option to send a counter-notice to have the material replaced. Finally, the DMCA also mandated that online service providers have designated agents to receive copyright infringement requests, which led to more targeted and efficient modalities for sending takedown requests to platforms.
Google — Arguably one of the Largest Recipient of DMCA Requests
Google is arguably one of the largest recipients of DMCA requests on the internet. Since the use of Google for searching the web became common practice, copyright holders started sending DMCA takedown requests to Google in addition to, and sometimes instead of, the website which held the infringing content. This ensured that all search results pointing to the infringing content were de-listed by Google, which in essence served the copyright holders’ larger goal of ensuring that their copyrighted work was not accessible through illegal means. The large scale at which Google receives take down notice may be a reason that it has built the ‘Trusted Copyright Removal Program’, which comprises over approximately 180 partners, for more streamlined anti-piracy efforts. As per Google’s transparency report in 2016, it handled over 75 million DMCA requests every month, copies of all of which It shares with the Lumen Database.
Increase in Content Delisting Agencies as notice ‘senders’
Prior to the early 2010s, the ‘principal’ of the DMCA request, in most instances, was the copyright holder and the ‘sender’ of the DMCA request was either the law firm acting on behalf of the principal or the principal themselves. Examining trends within the notices in Lumen’s database reveals that since the 2010s, 3rd party agencies dedicated to managing and enforcing copyrights such as Web Sheriff, MarkMonitor, and Muso, became increasingly responsible for sending a majority of the DMCA requests. For instance, these notices from 2012, 2013, and 2021 have been sent by Muso.com, an anti-piracy agency, on behalf of media groups and record labels to have infringing audio and visual content removed.
The start of this new trend seems to be in line with the time when a majority of such de-listing agencies were founded. Some of the largest anti-piracy agencies such as Muso Piracy, AudioLock, ProMedia, and Link Busters, were all founded in 2009 and 2010 to find illegal websites, infringing URLs, and send DMCA takedown requests to have them removed. Another de-listing agency, Rivendell, boasts of removing over 750,000 links from Google’s search engine each day!
Exponential increase in the number of removal requests per DMCA notice
Another trend visible in the DMCA notices in Lumen’s database is a dramatic increase in the number of infringing URLs per notice. Previously, one DMCA request typically indicated the removal of one infringing website or URL. That is no longer the case. Compare to notices such as this and this from 2001 and 2002, which contained requests for the removal of a single infringing URL to this notice from 2007, which requests the removal of over 75 websites where the copyrighted work of over 200 artists has allegedly been infringed. Similarly, this single notice sent by British Recorded Music Industry Ltd. requires that 40 URLs providing illegal access to the copyrighted song ‘Teenage Dream’ by artist Katy Perry be removed. These notices from 2013, 2014, and this one from 2021, all use a single DMCA takedown notice to flag copyright violations and request that over 1000s of URLs of allegedly infringing copyrighted material be removed. This notice, along with several others, references close to ten thousand URLS! This development may also be read in conjunction with the rise of enforcement agencies, as described above, and with a growing trend toward automation, discussed below.
Algorithmic automation of takedown notices: removal en masse
The DMCA sits at the forefront of algorithmic law due to the potential it offers for automated enforcement of copyright at a large scale. The Lumen Project addressed this trend briefly at the European Commission Stakeholder Dialogue on Article 17 of the EU Copyright Directive in 2019 by flagging that there has been an exponential increase in the number of notices received by the database every year since it was founded in 2002. Lumen took over 10 years to receive its one-millionth notice, only a little over a year to reach two million, less than a year for three million, and just about eight months for four million notices. This exponential rise began in approximately 2012, a time which was also the watershed moment for automating takedown requests. Also in 2012, Google announced an update to its search algorithm which would target websites that were receiving a high number of DMCA takedown requests, and make them appear lower in their search results.
While automation in sending DMCA notices has been harshly criticized for causing chilling effects, it is most certainly a critical element in the study of how DMCA takedown notices have evolved over the decades.
Conclusion
The DMCA takedown removal request landscape looks very different today than it did in 1999. With increased automation came a drastic increase in the volume of takedown notices and the exponential increase in the removals requested within each notice, but this also made way for an increase in both errors and chilling effects. Hence, how DMCA removal requests will look in the future as compared to their current form could also be linked to the extent to which algorithmic enforcement can assist in effective platform governance and content moderation.
Studying the DMCA landscape and its continued evolution will be critical to developing future optimal policies. Ideally, such research would have access to the entire corpus of DMCAs sent. However, as mentioned previously, major platforms such as YouTube, Facebook, and Instagram don’t share DMCA notices with the Lumen Database or elsewhere — if they did, it would substantially improve the accuracy of any ongoing or future DMCA research and policy. The Lumen Project is always eager to engage with researchers and OSPs on how the database can be more helpful in the study of online content removal and actively seeks collaboration on related issues.
About the Author: Shreya is an Employee Fellow at the Berkman Klein Center, where she works on the Lumen Project. She is a passionate digital rights activist and uses her research and writing to raise awareness about how digital rights are human rights. She tweets at @shreyatewari96!
