Notice and what? Explaining the copyright 'Notice Trio'

There's a set of confusing phrases you may have heard floating around the Internet on digital rights or intellectual property blogs -- or maybe it was that one time you tried to actually read the terms and conditions?

Today we're going to dig into what we're calling "The Notice Trio." These ones:

• Notice and Notice

• Notice and Takedown

• Notice and Staydown

2017 is shaping up to be a big year for copyright around the world. If you've been following our work in the European Union, you know that this year is when rubber meets the road for revising the Copyright Directive. (If you haven't yet, join us at SaveTheLink.org!)

But the EU isn't the only place where copyright concerns will be coming to the fore in 2017. Both Australia and Canada will be undergoing a copyright review this year and in the U.S. publishers and rightsholders are already lobbying for new powers under President-Elect Trump.

That's why we thought it'd be handy to break these terms down and explain what each are really about, and why they matter.

The Notice Trio are actually three different legal systems for identifying and dealing with hosted content that is allegedly infringing copyright online.

To understand this, let's go back to basic principles of the Web. Everything you do on the Internet is usually done through "intermediaries" -- for example Internet service providers (ISPs), social networks, and search engines.

In order for the Internet to have lots of people interacting and sharing, we have rules that mean that these intermediaries which enable user content -- sites like Tumblr or Medium or Twitter, and especially the ISPs themselves -- are not legally liable for what their users do.

In many countries, there are so-called safe harbours, that keep our favourite websites from being responsible for the conduct of their users, as long as they comply with the Notice rules.

We need this system because if websites become liable for what users post, then there will be a huge incentive to massively restrict what can be posted. We know from past experience with copyright takedowns that liability leads to over-reach, removal of political content, and shutting down anything that these companies are concerned could get them into legal trouble. Every ISP and every social media site would increase censorship in their corner of the Web. (The approach where sites are held legally responsible is called "intermediary liability" and you can read more about it here.)

For the big Internet companies to have the flexibility to host user generated content without being liable, they had to accept some conditions from the big publishing groups in case people are using copyrighted content in ways they don't like. And that's what each of these "notice and what?" instances are: a different bargain the big players reached to give us permission create, post, make and share on the Web.

How these rules work in different countries has a huge impact on our rights, including freedom of expression, freedom of association and the right to privacy.

Notice & Takedown (the status quo)

The current system operates like this:

1. To allow them the freedom from liability sites have to remove content if they get a notice that the content is copyright infringing. These websites can reserve the right to challenge the notice on the claim that the content is not infringing, or the use is fair, but if a lawsuit is brought and they lose -- they'll be liable.

2. Once content is removed, the websites send the content-poster a notice of what they've done.

3. The original poster can file a counter-notice disputing the claim of copyright infringement, or arguing that the use is fair. For example, you can use shots of a film to legitimately criticise it.

4. If the complainer doesn't take action in a federal court within 14 days, the content is restored.

In most cases, whether the claim is legitimate or not, the content comes down. Most hosting platforms are too cautious and know that standing up for the rights of their users could put them in the liability hot seat -- either that, or they're using automated systems like YouTube's ContentID to remove items flagged as infringing, so there isn't even a human reviewing the claim.

Welcome to the world of copyright trolling where people make copyright claims just to take down content they don't like. It's easy to use the system to silence your critics; even if content is restored after 14 days -- momentum on a powerful critique can be lost.

Unlike other speech laws, no judge has to determine if your content really is in violation of copyright law. Here are some examples of copyright holders abusing the system and silencing speech with dubious copyright claims.

Notice and Staydown (the threat)

When you hear "notice and staydown" it's all about robots.

Remember this piece about European Censorship robots? The proposed EU copyright law wants to implement an automated system that monitors all your uploads for copyrighted content. Well, this is the same concept.

1. Instead of waiting for notices on each piece of allegedly infringing content, every website that allows users to upload content would have to build a program like YouTube's ContentID which detects and flags content that’s been marked as infringing.

2. This would block the uploading of content altogether, rather than being taken down after the fact.

3. The system continuously adds to the database if something it missed gets flagged as infringing.

4. If the same piece of content is uploaded by someone else it gets flagged and denied, even if this use is legitimate, or they even have permission from the copyright holder.

Some lobbyists think that introducing these expensive programs should be a legal requirement to get "safe harbour" status.

However, we've warned previously about how algorithms are biased and unfair, and can have trouble correctly identifying infringing content -- and we'll keep saying it every time someone says that our lives should be governed by these kind of programs. Bots don't understand context, and will stop legitimate speech, creating a powerful, unaccountable infrastructure of censorship. Plus -- how does a robot recognise this difference things permitted in different countries? How does it know if that person has permission to use it?

This approach would also dramatically shrink the playing field for new companies in the user-generated content space. It cost YouTube $60 million to make its ContentID system -- not the kind of cash startups generally have, let alone nonprofits like Wikimedia who also rely on safe harbours and freedom from liability. As Joshua Lamel of Re:Create put it, "Remix culture and fan fiction would likely disappear from our creative discourse."

Notice and Notice (the dream)

A notice and notice system, as used in Canada, is an attempt at a more balanced approach. It is used in relationship between Internet service providers (ISPs) and their subscribers, and mostly for comes into play with peer-to-peer file-sharing -- but the principle is one we can really get behind.

1. A rights holder of a copyrighted work notifies an ISP that one of its subscribers is allegedly hosting or sharing infringing material.

2. The ISP then forwards the notice to the subscriber, they may monitor that subscriber's activities for a period of time.

3. The ISP does not however reveal the subscriber's personal information, IP address, or any identifying information to the rightsholder -- in fact, under Canadian law a court order must be sought to get this information. The ISP does not take any further steps to ensure that the allegedly infringing material is removed.

This system, unlike others, operates using normal principles of justice: innocent until proven guilty, and judgement and punishment delivered by judges not businesses. It ensures that legitimate speech is not unnecessarily removed under the banner of copyright protection and ensures that the privacy of Internet users is respected.

Why is any of this relevant?

The legacy entertainment industry is pushing the notice and staydown system in international treaties, national laws in Australia and the U.S., and in EU-wide proposals.

These hyped-up copyright protectionist measures are advanced with the attitude that if people are making money on the Web, then it should probably go to them.

In the U.S. the proposal is called notice and staydown and in the EU legislators are calling it "mandatory content filtering." Just remember: Same thing, new name.

We're gearing up to fight these filtering proposals not just in Europe, but also in the U.S. and wherever they emerge. We need to send the message that creating content on the Internet does not make you guilty of copyright crimes, and that users are willing to stand up to protect their right to share and collaborate online.

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