Notice-and-takedown

AutorLuã Fergus and Laila Lorenzon
Páginas219-220
219
Notice-and-takedown
61 Notice-and-takedown
Luã Fergus and Laila Lorenzon
Notice-and-takedown is a process to deal with potential infringing
content based on the practice of sending an extrajudicial notification
to the content provider and the immediate removal of the allegedly
infringing content by the provider, without the need for a prior
court order or possibility of counter-notification, before or after
the content removal. Under such a mechanism, the provider may
be liable if it did not remove the content immediately.
This mechanism has become predominant on the internet thanks to
the Digital Millennium Copyright Act 1998 (DMCA), a U.S. law that
limits the liability of online service providers for copyright infringement
caused by their users if they promptly remove the offending content
after being notified of an alleged infringement by copyright owners
or their representatives (Section § 512, DMCA). The enactment of this
legislation immediately provoked similar adoptions in other countries,
but nations that remained neutral were also regulated by the DMCA, as
the major platforms apply this legislation globally, disregarding local
copyright laws. Online platforms frequently use DMCA to establish a
“three strikes” policy, a graduated response system that consists of three
warnings to the user about posting copyrighted material, generating a
serious penalty after the last warning, such as account deletion.
Explaining the relationship between this removal regime and the
DMCA is relevant because notice-and-takedown mechanisms has
serious problems, for instance:
¡ offer serious risks to freedom of expression online, encouraging
the arbitrary removal of content
¡ allow short-term censorship of material whose timing is crucial,
like election period.
National legislation lays out several hypotheses in which works
protected by copyright can be used without the need of authorization
by the copyright owner. However, it is not uncommon for copyright
infringement to be the argument used for purposes of censorship,
when the use of that work would be potentially lawful – which is
not always easy to determine.
In big digital platforms, the responsible for assessing whether the
posted contents comply with copyright rules is an artificial intelligence

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