U.S. Copyright Office Section 512 Study: Comments in Response to Second Notice of Inquiry

Using experimental evidence to improve delegated enforcement

“…This can be due to intimidation, high legal risks, 11 and a weak prospect of a successful redress. Even in the areas of law where such legal redress -often dubbed counter-notice -explicitly exists today, it is massively underused (Urban and Quilter, 2006;Husovec, 2016;Bridy and Keller, 2015). Generally speaking, content creators often have either no or very weak rights to have their content reinstated after it was removed from the provider; moreover, providers can use re-design of their terms of service to circumvent any reinstatement.…”

“…These findings are reinforced by a few transparency reports issued by companies that offer some additional (though limited) insights into the problem of under-assertion. According to available data, the counter-notice rate is frequently at rates below 1% of the removed content (Bridy and Keller, 2015;Klonick, 2020). As noted by Urban and Quilter, even in the United States, where an explicit complaint procedure exists, "the actual incentive to put back seems weak when compared to the incentives to take down" (Urban and Quilter, 2006).…”

“…Given the enormous amount of false positives observed even on the services owned by the biggest and wealthiest incumbents like Google (who presumably can invest the most in quality review), the underuse of counter-notice cannot be simply explained by a mere lack of interest of the affected parties in the blocked content. The rate of creator counter-notices disputing alleged infringements is often less than 1%, but the margin of error of notices is clearly higher according to the existing evidence (Urban and Quilter, 2006;Husovec, 2016;Bridy and Keller, 2015;Klonick, 2020).…”