DMCA Notice and Takedown Just won’t work for Content Moderation

A new argument for “reforming” content moderation law is replacing Section 230 of the Communications Decency Act by applying Section 512 of the Digital Millennium Copyright Act (DMCA) notice and takedown for copyrighted material approach to all content moderation. In essence, the proposal would require platforms like Reddit or Yelp to takedown comments and reviews upon notice from the disparaged party — similar to the notice and takedown model for copyright.

The argument for this approach rests on the incorrect premise that because this system works for copyright it would be effective for all types of content moderation.

Notice and Takedown Approach works for Objective Content — Not Subjective Content

The Section 512 notice and takedown works because copyright ownership is an objective test. The complaining party either does or does not own a copyright of the content in question.

Platforms receiving the takedown request can simply look to the evidence provided by the complaining party to determine whether the copyright is valid.

The argument for this approach rests on the incorrect premise that because this system works for copyright it would be effective for all types of content moderation.

Unlike the objective test under copyright, content moderation is largely a subjective test. In this section, we say why the reasons Section 512 is operable are not transferable for all types of content.

First, while a DMCA notice and takedown merely requires a good faith belief that the complainant have the copyright to the content, this is easily established. Comparatively, whether a Yelp review is accurate is not as easily assessed, especially if a Yelp review includes emotional and subjective content.

Second, the person whose content is removed often have little incentive to fight false takedown requests. Consider someone posting a Yelp review — they have little incentive to engage in a protracted battle over their 2-Star rating. Businesses, however, have a strong incentive to have the disparaging review removed.

What is Section 512 and what does it require?

Since intellectual property violations are specifically exempted from Section 230 (“Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property”), Section 512 of the Digital Millennium Copyright Act (DMCA) addresses how copyright holders and platforms deal with the presence of copyrighted content.

Section 512 provide copyright holders the opportunity to notify platforms of infringing material. It says:

Information Residing on Systems or Networks At Direction of Users. —

In general. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider —

a.

i. does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

ii. in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

iii. upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

b — Does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

c — Upon notification of claimed infringement as described in paragraph (iii), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Failures of applying the notice and takedown approach to all content moderation in Europe

As we have seen in Europe, applying the notice and takedown model for platforms for content outside of copyright protection has deleterious consequences (note that Section 230 specifically exempts intellectual property from the broader Section 230 liability protections).

Take the European review site, “TrustPilot,” a customer review site much like Yelp or Amazon reviews. But unlike Yelp and Amazon reviews, European law compels TrustPilot to remove reviews upon receipt of complaint. TrustPilot then moves to an adjudication and may later restore the review. This adjudication will likely include containing both parties, having them each make submissions and substantiate with evidence.

You can easily see how this notice and takedown approach will be abused. Businesses that receive a negative review will immediately file a takedown request.

You can easily see how this notice and takedown approach will be abused. Businesses that receive a negative review will immediately file a takedown request. The review goes down and the aggrieved customer must then prove they had a negative experience. Aside from the difficulty in proving this, not many customers will take the time and effort to fight to restore their review.

Creates unreliability in reviews

The notice and takedown approach will also undermine trust in online reviews. Since the notice and takedown approach makes it easy for businesses to purge critical reviews, review sites will be flooded with mostly all positive reviews.

Rather than restaurants offering a high quality experience receiving the best ratings on review sites, restaurants that file the most takedown requests against bad reviews will get the highest ratings.

Applying the notice and takedown model to non-copyright related content moderation would undermine our trust in what we read online.

Section 512 is a workable way to enforce copyright on online platforms in the U.S. — but even notice and takedown for copyright has its problems. The notice and takedown approach would not work when tackling more complex and subjecting content moderation issues like hate speech, misinformation, and cyberbullying.