Shielding the Messengers: CDT Comments on Notice-and-Action

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would not exist.

Any guidelines to harmonize "notice and action" policies for content hosts must focus on maintaining strong liability protections and providing effective safeguards against abuse. That was the message CDT reiterated to the European Commission last week in our response to its public consultation on the issue. These comments (and appendix) are the latest in a series of contributions CDT has made since the Commission first picked up the issue in February, when CDT offered a set of principles to guide the inquiry.

Unlike in the US - where the Digital Millennium Copyright Act lays out a specific notice-and-takedown procedure that hosts must follow to be shielded from copyright liability - the E-Commerce Directive (ECD) that guides EU states' intermediary liability protections offers only a higher-level framework. It covers all content, and has been implemented in a wide variety of ways in different countries, some adopting formal notice-and-takedown systems, others not. The Commission is considering issuing guidelines to help harmonize the processes across the EU.

CDT's comments start from the proposition that liability protection should be available to the full range of content hosts that are relevant on today's Internet, and that any notice-and-takedown system needs to target illegal content with specificity and care. We stress that protection should be unequivocally extended to "active hosts" and that so-called notice-and-stay down obligations are inconsistent with the ECD's prohibition on general monitoring obligations. And CDT believes that private notice-and-takedown should only apply in areas where unlawful conduct is straightforward. Allowing notice-and-takedown for defamation and other content whose legal assessment requires difficult factual and legal determinations allows far too much opportunity for abuse.

A major focus of our comments is what steps can be taken to prevent abuse of notice-and-takedown where it is implemented. Abuse and mistakes under the DMCA and the threat they pose to online free expression have been well documented by CDT and other advocates. To prevent actions that result in the takedown of lawful material, we recommended a combination of strict requirements for notices, transparency requirements to expose abuses, and strong appeal and counter-noticing procedures - including the availability of meaningful penalties for those who send abusive, misleading, or negligent notices.

Lastly, the comments urge the Commission to consider "actions" other than takedown. Although the questionnaire focused on takedown, it is just one among a wide range of actions that can help address illegal content. Notice-forwarding by access providers, for example, can alert users of the allegations being made and the possibility of legal action against them - without the risk that lawful content will come down by mistake before a user has the chance to respond or a court has the chance to intervene.

View the original article here

Shielding the Messengers: CDT Comments on Notice-and-Action

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would not exist.

Any guidelines to harmonize "notice and action" policies for content hosts must focus on maintaining strong liability protections and providing effective safeguards against abuse. That was the message CDT reiterated to the European Commission last week in our response to its public consultation on the issue. These comments (and appendix) are the latest in a series of contributions CDT has made since the Commission first picked up the issue in February, when CDT offered a set of principles to guide the inquiry.

Unlike in the US - where the Digital Millennium Copyright Act lays out a specific notice-and-takedown procedure that hosts must follow to be shielded from copyright liability - the E-Commerce Directive (ECD) that guides EU states' intermediary liability protections offers only a higher-level framework. It covers all content, and has been implemented in a wide variety of ways in different countries, some adopting formal notice-and-takedown systems, others not. The Commission is considering issuing guidelines to help harmonize the processes across the EU.

CDT's comments start from the proposition that liability protection should be available to the full range of content hosts that are relevant on today's Internet, and that any notice-and-takedown system needs to target illegal content with specificity and care. We stress that protection should be unequivocally extended to "active hosts" and that so-called notice-and-stay down obligations are inconsistent with the ECD's prohibition on general monitoring obligations. And CDT believes that private notice-and-takedown should only apply in areas where unlawful conduct is straightforward. Allowing notice-and-takedown for defamation and other content whose legal assessment requires difficult factual and legal determinations allows far too much opportunity for abuse.

A major focus of our comments is what steps can be taken to prevent abuse of notice-and-takedown where it is implemented. Abuse and mistakes under the DMCA and the threat they pose to online free expression have been well documented by CDT and other advocates. To prevent actions that result in the takedown of lawful material, we recommended a combination of strict requirements for notices, transparency requirements to expose abuses, and strong appeal and counter-noticing procedures - including the availability of meaningful penalties for those who send abusive, misleading, or negligent notices.

Lastly, the comments urge the Commission to consider "actions" other than takedown. Although the questionnaire focused on takedown, it is just one among a wide range of actions that can help address illegal content. Notice-forwarding by access providers, for example, can alert users of the allegations being made and the possibility of legal action against them - without the risk that lawful content will come down by mistake before a user has the chance to respond or a court has the chance to intervene.

View the original article here

Shielding the Messengers: (Court-Ordered) Notice-and-Takedown, the Chilean Approach

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would not exist.

In 2010, Chile updated its copyright law with a novel approach for protecting Internet intermediaries from liability for their users’ copyright infringement.  Though modeled on the US Digital Millennium Copyright Act (DMCA), the law differs in one crucial respect: While a cornerstone of the US law is its private notice-and-takedown system, the Chilean law requires that rightsholders secure a court order before content must be taken down.

Today, CDT released a short report on the Chilean law, examining the balance the law strikes among the rights of copyright-holders, intermediaries, and Internet users.  As we explain in the paper, the law offers greater certainty to intermediaries as to when content should be removed, and court oversight may well prevent some of the mistakes we have seen under the US system.

On the other hand, some rightsholders have expressed dissatisfaction with the law, since having to go to court significantly raises the burden on them when requesting takedowns.  Despite these objections, the Chilean Congress repeatedly rejected amendments that would have allowed for DMCA-style private takedowns, believing that the approach of relying on court orders was best for ensuring Internet users’ constitutional rights were protected.

CDT believes the balance struck by the DMCA remains viable in many respects. (We do, however, caution against extending the DMCA’s notice-and-takedown regime beyond copyright.)  Nonetheless, the Chilean law has provided an important and interesting new model worth considering.  It remains to be seen as courts implement the law whether it does in practice provide reasonable protection for rightsholders, intermediaries, and users.  Anecdotally, we have heard from colleagues in Chile that no one has sought a court order.  Instead, it seems rightsholders may be taking advantage of notice-forwarding requirements (see below) in the law to communicate directly with users to request the removal of infringing content.

Notice-forwarding requirements, whereby ISPs and content hosts are required to pass along notices of apparent or alleged infringement to subscribers, present yet a third model for dealing with online copyright infringement.  As CDT commented when US ISPs announced the Copyright Alert System, notice-forwarding can serve an important educational function and has the potential to deter a significant portion of online infringement.  Canada’s copyright reform act, passed earlier this summer, followed this approach.  We’re currently reviewing the law, and it will be the subject of a future report.

View the original article here

Shielding the Messengers: CDT Comments on Notice-and-Action

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would not exist.

Any guidelines to harmonize "notice and action" policies for content hosts must focus on maintaining strong liability protections and providing effective safeguards against abuse. That was the message CDT reiterated to the European Commission last week in our response to its public consultation on the issue. These comments (and appendix) are the latest in a series of contributions CDT has made since the Commission first picked up the issue in February, when CDT offered a set of principles to guide the inquiry.

Unlike in the US - where the Digital Millennium Copyright Act lays out a specific notice-and-takedown procedure that hosts must follow to be shielded from copyright liability - the E-Commerce Directive (ECD) that guides EU states' intermediary liability protections offers only a higher-level framework. It covers all content, and has been implemented in a wide variety of ways in different countries, some adopting formal notice-and-takedown systems, others not. The Commission is considering issuing guidelines to help harmonize the processes across the EU.

CDT's comments start from the proposition that liability protection should be available to the full range of content hosts that are relevant on today's Internet, and that any notice-and-takedown system needs to target illegal content with specificity and care. We stress that protection should be unequivocally extended to "active hosts" and that so-called notice-and-stay down obligations are inconsistent with the ECD's prohibition on general monitoring obligations. And CDT believes that private notice-and-takedown should only apply in areas where unlawful conduct is straightforward. Allowing notice-and-takedown for defamation and other content whose legal assessment requires difficult factual and legal determinations allows far too much opportunity for abuse.

A major focus of our comments is what steps can be taken to prevent abuse of notice-and-takedown where it is implemented. Abuse and mistakes under the DMCA and the threat they pose to online free expression have been well documented by CDT and other advocates. To prevent actions that result in the takedown of lawful material, we recommended a combination of strict requirements for notices, transparency requirements to expose abuses, and strong appeal and counter-noticing procedures - including the availability of meaningful penalties for those who send abusive, misleading, or negligent notices.

Lastly, the comments urge the Commission to consider "actions" other than takedown. Although the questionnaire focused on takedown, it is just one among a wide range of actions that can help address illegal content. Notice-forwarding by access providers, for example, can alert users of the allegations being made and the possibility of legal action against them - without the risk that lawful content will come down by mistake before a user has the chance to respond or a court has the chance to intervene.

View the original article here

Shielding the Messengers: (Court-Ordered) Notice-and-Takedown, the Chilean Approach

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would not exist.

In 2010, Chile updated its copyright law with a novel approach for protecting Internet intermediaries from liability for their users’ copyright infringement.  Though modeled on the US Digital Millennium Copyright Act (DMCA), the law differs in one crucial respect: While a cornerstone of the US law is its private notice-and-takedown system, the Chilean law requires that rightsholders secure a court order before content must be taken down.

Today, CDT released a short report on the Chilean law, examining the balance the law strikes among the rights of copyright-holders, intermediaries, and Internet users.  As we explain in the paper, the law offers greater certainty to intermediaries as to when content should be removed, and court oversight may well prevent some of the mistakes we have seen under the US system.

On the other hand, some rightsholders have expressed dissatisfaction with the law, since having to go to court significantly raises the burden on them when requesting takedowns.  Despite these objections, the Chilean Congress repeatedly rejected amendments that would have allowed for DMCA-style private takedowns, believing that the approach of relying on court orders was best for ensuring Internet users’ constitutional rights were protected.

CDT believes the balance struck by the DMCA remains viable in many respects. (We do, however, caution against extending the DMCA’s notice-and-takedown regime beyond copyright.)  Nonetheless, the Chilean law has provided an important and interesting new model worth considering.  It remains to be seen as courts implement the law whether it does in practice provide reasonable protection for rightsholders, intermediaries, and users.  Anecdotally, we have heard from colleagues in Chile that no one has sought a court order.  Instead, it seems rightsholders may be taking advantage of notice-forwarding requirements (see below) in the law to communicate directly with users to request the removal of infringing content.

Notice-forwarding requirements, whereby ISPs and content hosts are required to pass along notices of apparent or alleged infringement to subscribers, present yet a third model for dealing with online copyright infringement.  As CDT commented when US ISPs announced the Copyright Alert System, notice-forwarding can serve an important educational function and has the potential to deter a significant portion of online infringement.  Canada’s copyright reform act, passed earlier this summer, followed this approach.  We’re currently reviewing the law, and it will be the subject of a future report.

View the original article here