Tools for Transparency in Copyright Law
Over the span of one week in October 2014, Google received requests to remove more than 11 million URLs from its search engine due to copyright-infringement claims.
Enshrined in Article One of the U.S. Constitution, the purpose of copyright is to provide incentives for innovation by creating financial rewards for new creations. But in the more than two centuries since the Constitution was written, we have witnessed radical evolution in the methods of creation and the rise of lucrative industries that profit from the commodification of creative works.
The result has been a complex and sometimes dizzying web of copyright rules, unevenly and erratically enforced, particularly in the digital realm. For the average Internet user, it can be difficult to discover what materials are in the public domain, and which can be freely accessed and reused. When does fair use apply? What material has been removed from the Internet and on what legal grounds?
Luckily, the same technologies that complicate copyright law also provide us new methods for collecting, analyzing, understanding, and distributing data about how our world operates, both in terms of copyright enforcement and beyond. APIs and Twitterbots continuously scrape information sources and deliver real-time updates, such as every time a congressional staffer edits a Wikipedia page.
By collecting and publishing data about takedown requests, digital platforms like Google and Wikimedia are beginning to provide insight into the ways that rights holders are enforcing copyright law. The reports showcase aggregate trends on how much content is being removed over time and which copyright owners are requesting the most takedowns.
The details reveal some of the unusual and, in some cases, unfair ways that concerned parties try to apply intellectual-property law. Wondering why you've had difficulties finding recipes for "Derby Pie"? Kern's Kitchen trademarked the name and has litigated tirelessly to make sure sites do not post recipes using that name without permission.
The Chilling Effects clearinghouse functions as a searchable archive of requests to remove purportedly copyrighted information from the Internet, most of them made under the Digital Millennium Copyright Act. Though a popular tool for researchers, advocacy groups, journalists, and interested individuals, the project has been criticized as a tool for pirates as well, as the takedown notices contain links to the allegedly offending content -- and it recently removed its individual notice pages from search-engine results. The decision was met with harsh criticism from online news publications TechDirt and TorrentFreak, prompting Chilling Effects to issue an explanation:
Given increased public attention on the project, the wide variety of notices and types of claims that we catalog, and the sheer number of notices included in Chilling Effects database, we decided to take the interim step of de-indexing the site's individual notice pages from search engines' search results. Now that we have taken this step, we are hard at work building new tools and workflows that will allow us to better achieve the balance we are constantly seeking to strike between our dual missions of transparency and educating the public (on the one hand) and the strongly-felt concerns of those who send takedown notices (on the other).
That workflow overload attests to the growing appetite for transparency reporting mechanisms. Increased public awareness about how copyright laws are enforced has spurred activism by those who want to develop reasonable copyright solutions for today's information environment. Transparency sites have changed the game by drawing public scrutiny to information that certain parties have tried to suppress, in accordance with a phenomenon known affectionately as the Streisand effect.
Copyright law does not exist in a vacuum, and transparency mechanisms let us all be part of the debate. Increased access to creative works has the potential to foster new creativity and economic growth. Transparency reporting is just one tool in an ongoing process to reform copyright law to strike a fair balance between the right to freedom of expression and the right of copyright owners to receive compensation for their work.
Molly Schwartz is a senior fellow with the R Street Institute.