In the light of the EU's public consultation on the e-Commerce Directive, it is interesting to see that a number of high profile disputes have recently taken place between content sites and content owners. Content owners and their representatives have been arguing with content websites on a duty of care, inclusion of their works in a fingerprinting database and the removal of infringing content. Anti-piracy organisation Easycom notes that removal requests or Notice and Take Down requests are increasingly put aside or slowed down to the point that the complainants will cease their actions… or start legal proceedings. 

Escalation point

Article 14, paragraph 1, sub b of the European e-Commerce Directive provides that a hosting provider is not liable for the stored information for users if “the provider, upon obtaining such knowledge or awareness [about the existence of infringing information], acts expeditiously to remove or to disable access to the information".

In the recent Viacom/Google case, the court found that the current Notice and Take Down (NTD) regime works "efficient”, referring to the example that YouTube answered Viacom’s NTD request of 100,000 violating videos within a single working day. However, on this side of the ocean that "expeditiously action" hasn’t always been lived up to lately. This is illustrated by three disputes between Easycom (representing various Albanian artists) and content sites like YouTube, iTunes and Amazon.

YouTube

YouTube for instance refused to respond to the NTD-request of a group of 120 Albanian artists who found their songs made available online on a remarkably popular YouTube channel. Jointly represented by Easycom’s Aldor Nini they submitted an NTD request to YouTube to take the channel or at least the songs down. However, despite repeated requests and evidence put forward by the group of rights holders, YouTube refused to remove the channel or songs, because the channel's owner claimed to have permission to make the songs available online.

"YouTube clearly waited until a certain escalation point before living up to the NTD request,” claims Nini. “A logical step would be to include the songs from the artists in YouTube's Content ID database, but YouTube refused to include the group’s songs. Just as it refused to terminate the accounts of repeatedly infringing users,” says Nini. Only when Easycom’s lawyer, on behalf of the group, send a pre-litigation letter to YouTube, were they willing to cooperate with the NTD and other request.

iTunes

Other online music providers seem to be putting NTD requests aside until a certain escalation point as well, remarks Nini. Albanian singer Soni Malaj found her own produced song “Zemer Pa Kurdiser” available in the iTunes music catalogue without her permission. A substantiated request to iTunes by Malaj and Easycom to remove her song from the catalogue had no effects. iTunes claimed to surely have one or more licenses to distribute her music online, yet could not substantiate that claim. Only when Malaj’s lawyer referred the case to the court in Cologne did iTunes reluctantly come forward to settle the matter and to remove the song from their catalogue.

Amazon

Malaj also found the same song available as a paid download in Amazon.de’s online music catalogue, again without her consent. A substantiated request to Amazon to remove the song from their catalogue was unfortunately again not followed. Amazon also discarded a settlement proposed by Malaj’ lawyer. Only when both parties were standing before judge Müller of the Cologne court, did Amazon - at the request of the court - showed a willingness to settle the matter. The court then confirmed the agreement that Amazon would remove the song from its catalogue and care for the costs of the legal proceedings.

NTD 

There seem to be more problems surrounding the effectiveness of NTD and other infringement procedures in general, Nini explains. If anything, many NTD practises by hosting providers appear more willing to help out the infringer, than to give the rights holder a fair chance to prove his case.

Nini explains that YouTube, upon receiving an NTD request, will first send a notification to the user, informing them and asking their contact information and whether they think a) the content has been misidentified, b) their use falls under the fair use exception or c) they have the content owners permission to make the material public. Substantiation or motivation to this claim is not necessary. According to Nini, in many cases the informant will think or state that they have permission, while they actually haven’t. The user's contact information and response are then forwarded to the complainant, who is then given the option to either prove that they are filing a lawsuit against the user within ten days (!), or else the content remains online. 

Not surprisingly, in most cases the contact information provided upon notification of an NTD request is false. And then what? Filing a lawsuit against Mr. Unknown, from Unknownville in Unknownia isn’t an option, assuming that you even have the financial means to do so. “And this is YouTube, some hosting providers like Ecatel don’t even respond to an NTD request at all”, Nini experienced. 

Yet if the platform hides behind an anonymous user, the only remaining solution to get the infringing material offline is to start legal procedures against the platform or website. And that is a procedure with problems of its own, as Nini pointed out. The question rises to what extent possibly infringing users who are deliberately hiding their identity should be protected over serious and substantiated claims of creators and rights holders.

What’s next?

Although it is definitely very important that content shouldn’t be removed all too lightly, delaying or denying NTD request to the point where they are dropped or escalated to actual court proceedings, seems to be quite another extreme. Particularly for independent copyright holders who are not backed up by large companies or have affiliated rights holder organizations will not have the long haul or financial means to afford an expert or lawyer to assist them or to start legal procedures.

In light of these developments and the EU’s public consultation on the e-Commerce Directive it seems not unlikely that content owners and interest groups will push for the rules and procedures for NTD - and other requests to remove (copyright) infringing content - to be tightened. Wouldn’t solving these issues by improving cooperation between content owners and distributors be much more welcome then adding more legislature?