Empirical Approaches to Intermediary Liability

CREATe Working Paper Series (2019/06)

This paper considers what empirical evidence may contribute to the debates around online intermediary liability. What do we need to know in order to frame the liability of intermediaries and, a fortiori, what does the relationship between theory and empirics imply for the wider issue of platform regulation? We evaluate the performance of so-called intermediary liability safe harbours, which have been operating for two decades in multiple jurisdictions. Drawing from the Copyright Evidence Wiki, CREATe’s open-access repository of findings related to copyright’s effects, we systematically review the body of empirical studies relating to notice-and-takedown systems during the 20-year period from 1998 to 2018. We identify five key sub-fields of empirical inquiry pursued so far: the volume of takedown requests, the accuracy of notices, the potential for over-enforcement or abuse, transparency of the takedown process, and the costs of enforcement borne by different parties. The evidence indicates that rightholders have made effective use of the notice-and-takedown system to enforce their copyrights, dramatically accelerating with the use of automated systems since about 2012. The potential for abuse, while real, it likely over-stated. The distribution of cost burdens creates incentives for rightholders to pursue instances of straight piracy, while user-generated re-use remains largely tolerated. Areas for improvement, particularly in relation to due process and transparency, are identified.