This is a public policy report that offers important research for my paper. It discusses how “free” expression really is in this new age with strict copyright control like the DMCA. The Brennan Center for Justice conducted a research project in 2004. The objective of the project was to see how the people, artists and scholars, directly affected by fair use were dealing with it. These are the people who make significant contributions to culture and will definitely be affected by an amendment like the DMCA. The Brennan Center used interviews, online surveys, focus group discourse, and most importantly, an analysis of about 153 of 300 take down letters. The most interesting to me and the method that I plan to discuss in my paper is the analysis of the take down notices. The 153 notices were aimed at materials that were actually fair use or had a weak IP claims.
The research showed a strong positive correlation between the strength of fair use claim and the likelihood that the material would be removed. There was also a troubling finding that even when there were weak IP claims, more than half of trademarked words or phrases were removed. Even though it was fair use, the weak IP claims won. Overall, the take down notices really are distinctly violating the first amendment.
The other methods, interviews, online surveys, and focus group discussion found two common, major themes. The research project found that there is a great deal of confusion about fair use and the DMCA. Also, there is an enormous need for a legal support base to deal with gatekeepers. The paper suggests possible improvements: a clearinghouse for information like how to reply to take down notices, legal support base, and decreases to the penalties.
I plan to use this paper’s research to support my claims
1. People have inadequate knowledge about DMCA, fair use, and their first amendment rights
2. Gatekeepers are abusing take down notice rights
3. How effective are the take down notices at eliminating copyright infringement?
4. Who are the innocent bystanders being caught up by the take down notices?
This policy paper from the Brennan Center for Justice sought to determine how strong the fair use doctrine remains in the digital age. For the section analyzing the role notice and takedown plays, the catalog of 2004 letters received by Chilling Effects Clearinghouse was used as the data set. To determine issues concerning fair use and the First Amendment, a subset of 153 letters was used. The authors mentioned that it is more likely than not that this data sample under represented possible speech-suppressing efforts because only those people knowledgeable enough to submit their letters to Chilling Effects were included. With this in mind, the complaints were split into strong, reasonable, possible, and weak fair use claims. The results were described as “troubling,” with the combination of the accusers who had only a weak claim to copyright and the alleged infringers who had a strong claim to fair use amounting to 20% of all claims. Another 27% of claims fit into the category where there were possible fair use defenses. In total, the author puts forth that almost one in two takedown notices had the potential of improperly hindering free expression. The study is important because it concludes that censorship power is put “in the hand of the IP owners.”
Although a likely assumption, this study demonstrates the correlation between strength of the fair use defense and removal of allegedly infringing material. Naturally, the more substantive the fair use/First Amendment claim, the more likely the alleged infringing content would remain online. I will possibly use this in support of the idea that the notice and takedown system is not as reckless and arbitrary as some would claim. However, I will also be sure to point out that even in cases of strong fair use, there was a significant occurrence of free-speech suppression, with over 40% of material either partially or entirely removed.