How a flawed copyright takedown system is causing problems for online sales of perfume products

The copyright system is flawed at many levels, as hundreds of posts on this blog make clear. One particular class of problems concern takedowns. The best known of the ‘notice and takedown’ systems, that of the US Digital Millennium Copyright Act (DMCA), allows the copyright industry to send takedown notices when they discover infringements on a site to the relevant Internet companies, asking for removal of that material. The person who uploaded the relevant files can send a counter-notice. Such a response may trigger a lawsuit from the company claiming copyright. If it does not, the site owner may restore the material that was taken down.

That might look like a fair and balanced system, but appearances are deceptive here, for reasons Walled Culture the book (free digital versions available) explores in detail. Takedown notices are generally sent by lawyers or specialists who carry out this operation all the time, often thousands of times a day, using automated systems (Google has received billions of such automated requests). These experts know the details of the law and are only required to provide a statement that they have a ‘good faith belief’ that the use of the copyright material is unauthorised.

By contrast, recipients of takedown notices are often small businesses, or ordinary members of the public. They are unlikely to have any legal training yet must respond to a formal legal notification if they wish to send a counter-notice. The latter must include a statement ‘under penalty of perjury’ that the material was taken down by mistake. Many will quail at the thought that they risk being convicted of perjury, and this stands in stark contrast to the mere ‘good faith belief’ required from the sender of a takedown request. Consequently, most people will simply accept that their material is removed, even if it was legal, for instance under fair use.

Takedown notices can be abused for purposes that have nothing to do with copyright. For example, they are a handy way to censor perfectly legitimate online material. The practice has become so common that an entire industry sector – reputation management – has evolved to take advantage of this trick. Online reputation management companies often use takedown notices as a way of intimidating sites in order to persuade them to remove material that is inconvenient for their clients.

Takedowns can also be mis-used in a business context, as a story on TorrentFreak indicates. It concerns the Canadian e-commerce platform Shopify, some of whose users had been targeted with takedown notices:

Starting on October 5, an unknown person created the account “Sacha Go” which was subsequently used to file dozens of DMCA takedown requests. The notices targeted listings on a variety of shops selling perfume products, claiming that they infringe copyright.

After being alerted by one of the targeted merchants Shopify looked into the matter, concluding that all takedowns were false. Instead of containing legitimate claims the DMCA notices were being used to harass Shopify and its merchants.

Shopify explains in a complaint it has filed alleging DMCA violations that those false takedowns can have serious financial consequences for Shopify’s merchants:

Under certain circumstances, a takedown notice can even result in the complete termination of a merchant’s online store. Like all DMCA service providers, Shopify is required to implement a policy under which those who are “Repeat Infringers” lose access to the platform. Under Shopify’s policy, a takedown notice results in a “strike,” and an accumulation of strikes over time results in termination. A merchant that receives a takedown notice may submit a counter notice and lift the strike. But for unsuspecting merchants who may be unfamiliar with the DMCA, a sudden onslaught of takedown notices can result in the termination of their entire store under Shopify’s repeat infringer policy.

Shopify’s complaint warns that “unscrupulous individuals are increasingly seeking to exploit the DMCA takedown process for anti-competitive purposes or reasons of animus.” In other words, these takedown notices have nothing to do with copyright or protecting the rights of creators.

The experience of Shopify and its merchants demonstrate well how extreme copyright laws can be abused in far-reaching ways. Those future issues clearly never occurred to the politicians who were too focused on giving the copyright industry yet more one-sided legal powers when they drew up the DMCA.

Featured image by Kade Jermark.

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