Chilling Effects

Section 512 has succeeded in securing OSP co-operation in taking down infringing materials from hosting sites and search engines. Since OSPs face no liability for taking down content, the law has encouraged takedowns even when it’s not clear whether or not a work is actually infringing. But in doing so, section 512 has also had a chilling effect on free expression online. One study found that the notice and takedown procedures have been used in ways not intended by the statute. It has been used in some cases to thwart competition and in others by people who don’t even own a copyright. For instance, some businesses have sent notices requesting that search engines remove links to their competitors’ websites. In others people who appear in photographs have sought removals even where they did not own copyright in it.

Surprisingly, the aforementioned study found that the movie and music industries that pushed for these provisions have rarely sent notices to companies like YouTube and Google. Rather, they have preferred to send notices directly to ISPs. The purpose of these notices might be to build a record of infringement against individual customers so that the ISP will be obliged to terminate their Internet access. The study notes that the primary targets of these notices are P2P filesharers.

Finally, while takedown notices are sent out by content owners on a daily basis, one little known fact is that there is actually a “put back” option for users. This option is available if content is taken down by mistake or based on a misidentification of the material in question. However, the law makes it procedurally more difficult to “put back” than to takedown. Therefore, putback rights are rarely exercised.