DMCA Takedown Notices Do Not Measure Copyright Infringement

A recent article by Jason Ryan in The State proclaims the “[University of South Carolina] a top pirate among colleges.” Ryan reaches this conclusion because “the [RIAA] has sent 914 notices of copyright infringement to the university this year — the highest number in the state and one of the highest among colleges nationwide — for illegally downloaded songs.” Ryan’s conclusion is false as one can not measure the rate of alleged copyright infringement on a given campus or among the customers of an ISP by the number of DMCA takedown notices received.

As I understand it, the primary problem is that copyright holders in the United States are not required to defend their copyrights; they can, instead, selectively enforce their copyrights (this differs from trademarks that must be defended or they can be diluted and essentially “lost”). In fact, this is exactly what the RIAA has done. “Owing to the impracticality of filing lawsuits against every individual file sharer, RIAA has chosen to focus on a relatively small group of individuals and maximize the publicity surrounding its legal action to discourage the overall participation in file-sharing networks.” Hence the number of DMCA takedown notices or lawsuits can not be used as a measure of alleged copyright infringement

Can one reasonably assume those numbers, summed together, are an upper limit of alleged copyright infringement? In other words, can one say that such a number represents the totality of alleged infringement? No. Only the works of those copyright holders who (a) believe their copyrights are being infringed and (b) who care to take action could be included in such an analysis. It is entirely possible that other works are being infringed but they’re simply owned by other parties than those pursuing these particular legal actions. In the USC example, it’s possible that students (and staff and faculty, oh my!) are infringing the copyrights of non-RIAA music publishers, artists, and rights holders. It’s even possible that USC persons are infringing the copyrights of other media such as movies, software, and books. Further, copyright holders who believe their copyrights are being infringed may elect to take no action or take action other than send a DMCA takedown notice or file a lawsuit. Therefore the number of DMCA takedown notices and copyright lawsuits can not be taken as a measurement of the upper limit of alleged copyright infringement since other infringement not covered by the current notices and lawsuits may be occurring.

Can one reasonably assume those numbers, summed together, are a lower limit of alleged copyright infringement? In other words, can one say that such a number represents the minimum level of alleged infringement? No. Even though DMCA takedown notices are submitted as truthful “under penalty of perjury,” mistakes still happen. For example, some institutions have received takedown notices for non-existent or impossible-to-use IP addresses. One should also take into account the legal and ethical principle of “presumed innocent until proven guilty.” In other words, one should not assume that the asserted activity in a given takedown notice or lawsuit has actually occurred. Not only would that be mistaken in the face of the already-mentioned mistakes and errors that occur but it would also be damaging to the ethical environment on a campus if administrators take, as a matter of course, the word of an external and biased person or group over the word of campus community members. In other words, one must perform due diligence before assuming that an allegation of copyright infringement is true. I will, however, grant that the number of “false positives” and mistaken reports are low and the number of takedown notices and lawsuits is likely to be relatively close to the lower limit of alleged infringement activity but to outright accept the proposition is factually and ethically mistaken.

Where does that leave us? How can one know the true level of alleged copyright infringement? I assert that it is very difficult to discover and keep track of this activity. I do not know of any easy, replicable, and reliable methods for doing so. I hypothesize that such methods might include a combination of measurements of network activity, legal and judicial activity, and qualitative methods of research and assessment. I leave the question of “should we care?” for another day. Suffice it to say that we are under significant legislative pressure to appear to care and to “do something” and that reason alone may be enough for most of us.

Finally, let’s return to the proclamation made in the first paragraph: USC has more received more DMCA takedown notices than other South Carolina institutions and thus has more persons (presumably students) engaged in copyright infringement. This simple argument is untrue as the (true) claim that “USC has received more DMCA takedown notices than other South Carolina institutions” does not, as discussed above, imply that “it has more persons (presumably students) engaged in copyright infringement.” One can say virtually nothing about the actual numbers of persons engaged in alleged copyright infringement at South Carolina institutions given only the number of DMCA takedown notices received by each institution. The race for the “top pirate” of South Carolina colleges and universities is still undecided; I recommend ship-to-ship combat on the high seas or perhaps a series of duels with sabers and pistols.

(There is also the intriguing issue of the RIAA employing Ginger DeMint, daughter of Senator Jim DeMint, R-S.C., as their director of government and industry relations. I leave discussion of this issue to those more well-versed in politics and conspiracy theories.)