Nate Glass fell into the takedown business almost by accident. Back in 2008, as a sales and marketing guy in the “adult industry,” he was driving in an RV, showing stores around the country how to market the products his employer was producing. It was, he says, the worst three years of his life; the charms of living out of an RV can wear off quickly. And he kept hearing the same thing from the stores: people just weren’t buying as much product as they used to. Everyone was getting their porn for free, online.
With little to entertain him in the evening, Glass decided to do some research. “I read the whole DMCA act,” he says. The Digital Millennium Copyright Act, passed in 1998, was meant to address exactly the problem the adult industry was facing: illegal use of copyrighted content on the internet. The act created a mechanism for copyright holders to send notice to the sites infringing on their rights and demand that the content be taken down. “It seemed like there was a pretty straightforward process,” says Glass.
He convinced his studio let him try fighting back against pirated videos. When it worked, other studios started clamoring for his services, and soon he opened a business, Takedown Piracy, entirely dedicated to providing them. Originally, he would just plug the name of a video into a search engine and send the notices by hand. Now, he says, “You have to automate a big chunk of this. There’s no way you could keep up with how fast things are pirated if you had to look at every single thing.” His company sends notices targeting “at least 100,000 infringements every day.”
Since Glass started his company, the business of policing piracy has exploded. Big content companies increasingly outsource that job to independent companies—enforcement vendors—which depend on a suite of proprietary techniques to seek out and flag pirated content. These are companies few people have ever heard of: Degban, MarkMonitor Anti Piracy, Remove Your Media, DMCA Force, and Digimarc are just a few.
These companies play a key role the churn of the bootleg internet—pirate groups have jiggered up systems that swiftly disperse copyrighted content across the Web, proprietary algorithms seek out those infringing uses and automatically generate DMCA takedown notices, and ISPs and search engines like Google automatically process them.
Much of the time, this system catches pirated material and tries to limit its spread. But it’s also generated takedown notices for sites that aren’t doing anything wrong—including work from newspapers and other media engaged in legitimate criticism and reporting on copyrighted work.
This wasn’t how the DMCA takedown system was supposed to work. “The presumption was that there would be an element of human judgement involved in evaluating if something was infringing. There’s a lot of gray area,” says Joe Karaganis, vice president of Columbia University’s American Assembly, a collaborator on the Takedown Project, which is attempting to better understand this system as it works in practice. “No one knows what the automated system does to that space of judgment and what the practical impact is on freedom of speech, and freedom of expression.”
And, really, outside of pirate groups, enforcement vendors, and ISPs, no one really knows exactly how the automated system works. “What this looks like day to day is still shrouded in mystery,” Karaganis says.
To an extent, what’s happening is clear: These companies write algorithms that search out certain content—on sites that are extremely unlikely to be using this content in any way that qualifies as fair use—and generate takedown notices, which are sent to ISPs. Notices flagging sites that are more likely to be using content legitimately might be reviewed by a human being before being sent on. Some companies create digital fingerprints for content—code that they can search for across the Web and easily flag.
And this automation has increased the volume of takedown notices exponentially.
Back in 2006, nearly eight years after the Digital Millennium Copyright Act passed, legal scholars Jennifer Urban and Laura Quilter thought that “a review of the law seems in order.” Takedown notices aren’t public records, but some recipients—most notably Google—had made a practice of releasing them. Urban and Quilter decided to look at what notices they could and get a sense of how the DMCA was being used. Their project included “all notices submitted to Google Inc.” between March 2002 and August 2005. The total: 734.
In 2012 alone, by contrast, Google received more than 441,000 takedown notices. And a single notice might list dozens of copyright claims and point out hundreds of offending URLs. In the past year, Google says, it has received requests from 4,622 copyright owners to remove 24,440,925 URLs, in 44,078 specified domains.