April 1, 2016

United States Copyright Office

Library of Congress
Docket No. 2015-7
Re: Section 512 Study; Request for Public Comment
The
Wikimedia Foundation
respectfully submits these comments in response to the
Copyright Offices
notice of inquiry
, published December 31, 2015, regarding a public
study of 17 U.S.C. 512. We are a non-profit and charitable organization that operates a
family of websites
, called projects. Those projects include
Wikipedia
,
the Internet's
largest and most popular general reference work, and
Wikimedia Commons
,a
database of millions of freely usable media files
.

Executive Summary
The Wikimedia Foundation operates one of the world's
top websites
.
Yet, in contrast to
other major global websites that are built on user contributions,
we are a non-profit
organization with a small staff and limited resources. Our
mission
is to empower and
engage people around the world to collect and develop educational content under a
free license
or in the public domain, and to disseminate it effectively and globally. Our
contributors are rightsholders themselves who choose to share their works under a
free license for the benefit of the world. Our ability to provide a platform for their
contributions is only possible because of section 512.
In many ways, the section 512 system of safe harbors and a notice-and-takedown
process is working well for us. Because our community of volunteers takes copyright
seriously and removes infringing material quickly, the Foundation receives only a
handful of takedown notices41 in 2015.
That said, the system has flaws. We reject, unchallenged, over half of the notices we
receive as improper and contrary to the mandates of the DMCA. Changes to the

section 512 system should focus on reducing the current high proportion of bad
noticesa state of affairs which results in real staff and monetary costs. Changes that
would place a greater burden on online service providers (OSPs), such as mandating a
so-called notice-and-stay-down procedure, risk upsetting the balance of the system.
Such changes are not necessary given other DMCA mandates on websites like ours,
yet they would hit small and non-profit providers with non-profit missions the hardest,
despite our proven commitment to copyright compliance over the years, by demanding
resources that we do not have.

Introduction
The Wikimedia
vision
invites us to [i]magine a world in which every single human being
can freely share in the sum of all knowledge. The Wikimedia movement strives to
enact that vision by enabling people to share and reuse their work. Participants in the
movement have created a number of
projects
for collaboratively and freely sharing
knowledge. Those projects include an encyclopedia (
Wikipedia
), a media database
(
Wikimedia Commons
), a dictionary (
Wiktionary
), a repository of quotations (
Wikiquote
),
and the open-source software on which all of the projects run (
MediaWiki
). The role of
the Wikimedia Foundation is to promote the projects, ensure their continued operation,
and support the millions of volunteers who contribute to building and maintaining the
projects.
Copyright is a central component of the Wikimedia projects. It comes into play in two
ways. First, users contribute vast amounts of original copyrightable content that they
have created themselves. They write encyclopedia articles for Wikipedia; they take
pictures for Wikimedia Commons; they create educational course materials for
Wikiversity
. Wikimedias users, called
Wikimedians
, make all of these individually
copyrightable contributions available to everyone under a
Creative Commons
license.
Like many authors of creative works, Wikimedians tend to care deeply about copyright.
They respect copyright as a tool for deciding how others can access, use, and remix
their works.
Second, many of the projects include user-contributed works created by others, where
that is legally permitted. For example, users may upload
photographs that are in the
public domain
to Wikimedia Commons. Many of the projects require all works that
users upload to be freely licensed or in the public domain, while other projects allow
all rights reserved copyrighted works to be uploaded as fair uses in appropriate
circumstances.

Given these user contributions, the section 512 safe harbors are crucial to the
continued operation of the Wikimedia projects. Wikimedia Commons alone contains
over 30 million media files, with over 12,000 added every dayfar more than the
Wikimedia Foundations small, non-profit staff would be able to review and evaluate for
copyright infringement. For the Wikimedia projects to grow, or even continue to exist
as they currently do, the section 512 safe harbors must continue to protect projects
like these that allow volunteers to share and collaborate.
Wikimedians passion for copyright is also crucial to the Wikimedia Foundations
continued operation. Volunteer Wikimedians diligently remove material from the
projects that does not meet the projects standards, including their copyright rules.
When someone flags a potential copyright issue on the projects, volunteer
Wikimedians are usually the first responders, evaluating whether it is permissible to use
and removing the file if necessary. If Wikimedians encounter material that does not
comply with the copyright rules on the Wikimedia projects (which encompass, and are
sometimes more strict than, the law), they will remove files preemptively, without
copyright owners needing to send a DMCA notice. Due to these efforts by
Wikimedians, we receive very few noticesand over half of the ones we do receive are
unfounded. In 2015, we received only 41 notices and complied with 12 of them.
As the above indicates, the current safe harbor system is working well for us and our
projects. However, changes to section 512 could jeopardize the current systems
effectiveness at supporting free expression on online platforms and other projects like
Wikipedia. Placing additional requirements on intermediaries to monitor for copyright
violations would significantly increase the burden of complying with the
notice-and-takedown process. This is particularly so for small or non-profit
organizations like the Wikimedia Foundation. Considering we regularly receive DMCA
notices that are illegitimate in one way or another and our projects have a strong track
record of removing copyright violations, reducing the number of improper notices is a
more important goal than making OSPs monitor for infringing material.
At issue, though, are not just the resources we have to spend to comply with the law,
but the ways in which changes to the law could interfere with Wikimedians work and
the processes they have developed for the projects. Wikipedia and the other Wikimedia
projects are built and maintained through the effort of volunteers. The incentive for
them to continue to participate is not monetaryit is the satisfaction of knowing they
are freely creating and sharing knowledge. If it becomes more difficult for Wikimedians
to participate in the projects, they will be discouraged from doing so. On a large scale,
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it will harm Wikimedia's mission and potentially harm other online collaborative
communities, to the detriment of the publics access to knowledge.

Subjects of Inquiry
1. Are the section 512 safe harbors working as Congress intended?
On the whole, the section 512 safe harbors seem to be working as intended. They
allow online platforms, including Wikipedia, to exist as places for users to spread
knowledge, share their creative works, and build communities. Without the section 512
safe harbors, online platforms, out of fear of litigation, would not be able to allow the
same level of freedom of expression.
3. How have section 512's limitations on liability for online service providers
impacted the growth and development of online services?
The section 512 limitations on liability have allowed a great number of online services,
including Wikipedia, to exist in the first place. These services would not have been able
to grow and develop to their current levels, with millions of users, without section 512s
limitations on liability. Without those protections, online services would need to more
actively and preemptively approve user content submissions. Such a system of private
sector prior restraint would not have allowed online services to grow at the rate they
have.
The Wikimedia projects could not have grown to their current sizes without volunteers
contributing massive amounts of content. In the past 15 years, millions of users have
written and edited the over 38 million articles on Wikipedia. Users created, found, and
uploaded the over 30 million free media files on Wikimedia Commons. Section 512
recognizes this reality, and the limitations on liability it provides to OSPs allow for the
existence of Wikipedia and other collaborative platforms built on user-posted material.
The limitations on liability also provide the breathing room the Wikimedia Foundation
and Wikimedians need to remove copyright violations from the projects. There are
vastly more users than there are professional staff at the Wikimedia Foundation.
Wikimedians are able to find files and remove them from the projects without needing
input or supervision. Moreover, we can then use our limited staff resources to focus on
responding quickly and effectively to the notices of alleged copyright infringement that
we receive from rights holders. As a result, the Wikimedia projects have been able to

grow exponentially without a corresponding growth in the time Wikimedia Foundation

staff must dedicate to copyright enforcement.
5. Do the section 512 safe harbors strike the correct balance between
copyright owners and online service providers?
The section 512 safe harbors strike the correct balance between copyright owners and
OSPs to the extent they place the burden of enforcing copyright on the copyright
owners and not on the OSPs. Because they relieve OSPs of having to determine
themselves whether each piece of user-submitted content could be a copyright
violation, the section 512 safe harbors create the space needed for OSPs to be
platforms for user communication and a marketplace for ideas.
In addition, the section 512 safe harbors have been a boon for the publics ability to
engage in fair uses of copyrighted works. If OSPs were directly liable for user material,
they would be likely to take a more conservative approach to allowing fair use
contenteither they would allow only a small portion of what would be a fair use under
the law or they would not allow it at all, to the detriment of the public.
The proliferation of websites, including the Wikimedia projects, that allow users to
upload material and make it immediately available has also enabled the public to
access and engage with works in the public domain like never before. Users can add
digital and digitized public domain material to centralized repositories, like Wikimedia
Commons, where others can find and access it. For example, in the past year
Wikimedians have
partnered
with the
Royal Netherlands Institute of Southeast Asian
and Caribbean Studies
to upload
thousands of 19th-century photographs
of Indonesia
and India to Wikimedia Commons. While OSPs would face no liability for this material
even without the section 512 safe harbors, it is hard to imagine that, if the safe harbor
protections were reduced, they would allow users the same freedom to upload and
share material without prior approval. As a result, many public domain works would
continue to languish in archives and libraries, accessible only to the few who could visit
them in person, rather than take on new life in digital form.
Copyright protection exists to incentivize authors to create new works, because new
creative works are valuable to the public. That value is only realized, however, if the
public can actually access and use those creative works, both while they are in
copyright and after they enter the public domain. By recognizing and protecting that
public interest in accessing and using works while providing copyright owners with a
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mechanism to prevent indiscriminate infringement, the section 512 safe harbors strike
a good balance between copyright owners and OSPs.
6. How effective is section 512s notice-and-takedown process for addressing
online infringement?
Section 512s notice-and-takedown process is effective for addressing online
infringement. If anything, it is
too
effectiveout of fear of losing safe harbor
protections, OSPs will take down material even if it is arguably (or unquestionably1 ) a
fair use, and even if they have not evaluated the material for infringement at all.2
8. In what ways does the process work differently for individuals, small-scale
entities, and/or large-scale entities that are sending and/or receiving
takedown notices?
We are a small-scale non-profit entity that hosts large-scale projects. The process
works differently for us as compared to large for-profit corporations or organizations
running websites that have significantly fewer users and less traffic. Wikipedia ranks
among the Internets
most-visited websites
, and the Wikimedia projects contain tens of
millions of
encyclopedia articles
and
media files
of all kinds. However, the Wikimedia
Foundation is able to operate with a small professional staffwe do not have hundreds
of lawyers to process and evaluate notices. We are able to support such extensive
projects with so few people for two reasons: (1) volunteers on the projects review the
material that users contribute to ensure against violation of site policies or the law,
including copyright law; and (2) the current notice-and-takedown process is
appropriately but not unduly burdensome on us.
Wikimedians work to ensure that the projects content does not violate copyright law.
The projects, under their user-created policies, generally only allow works that are in
the public domain or released under a Creative Commons license. When they do allow
1

See, e.g.

, Lenz v. Universal Music Corp, 801 F.3d 1126, 11291130 (9th Cir. 2015) (in which a music
publisher sent a takedown notice over a barely-understandable song that played in the background of a
29-second home video).
2
Jennifer M. Urban, Joe Karaganis, and Brianna L. Schofield, Notice and Takedown in Everyday Practice
(2016),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2755628
(The vast majority of infringement
claims [categories of large] OSPs receive are not substantively reviewedeither by the senders, who rely
largely on title matches and similar proxies to identify copyrighted material, or by the recipient OSPs, which
can, at best, triage small percentages of notices for human review. Though substantive review of claims is
limited, the notices still generally trigger OSP knowledge. Unable to evaluate every takedown request or fail
to act on valid ones without risking their safe harbor protection, OSPs may take down material even where
there is doubt about the substance of the claim.).

all rights reserved copyrighted material, it is under

criteria
stricter than what would be
allowed as fair use under U.S. copyright law. Volunteers, taking no direction from the
Wikimedia Foundation, rigorously enforce these policies out of a shared commitment
to Wikimedias mission. As a result, in the vast majority of cases where a work may be
uploaded to a Wikimedia project in violation of copyright law, the work is removed
before the copyright owner can become aware of it and send us a takedown notice.
The especially low number of notices we receive is a credit to the tireless work of these
volunteers in the Wikimedia community.
Vigilant volunteer Wikimedians protect the projects from receiving an overwhelming
number of takedown notices. Those efforts and the the DMCAs protection against
liability allow us to host Wikipedia and the Wikimedia projects. Without the section 512
safe harbors, we would need to monitor the projects ourselves to ensure we do not
miss anything, instead of being able to rely on volunteer Wikimedians. As a result, we
would have to spend far more resources to comply with the DMCA.
Receiving only a small number of notices also allows us to individually evaluate each
one we receive quickly and carefully, considering whether the material in question
actually constitutes copyright infringement. In part because of the care we take in
following the notice-and-takedown process, we consistently need to comply with
fewer
than half
of the notices we receivea statistic that demonstrates how the system
currently leans toward overenforcement.
9. Please address the role of both human and automated
notice-and-takedown processes under section 512, including their
respective feasibility, benefits, and limitations.
It would be difficult to create a fully automated process for sending notices that does
not send illegitimate noticesones that request that noninfringing material be taken
down. The analysis required to determine a works copyright status and potential
infringement of that work can be quite complex, based on a dizzying array of
contextual facts that are difficult for an algorithm to fully account for. Fair use analysis
in particular involves factors that an algorithm cannot consider and weigh as well as a
human. At least with our current technology, humans should be involved at every stage
of the notice-and-takedown process.

Categories of illegitimate notices that we receive regularly, often because the notice
was sent via an automated process, include:
Notices that contain major omissions, such as failing to identify the original
copyrighted work that is allegedly being infringed.
Notices improperly sent to us, asking for the removal of material that is not
hosted on the Wikimedia projects.
Notices that contain no legitimate claim of copyright infringement, seemingly
intended for antagonistic purposes.
Even if a perfect (or very good) automated process could be created for sending
notices, it would still not be feasible for organizations like ussmall, non-profitto
implement and comply with automated processes. We do not have the engineering
resources to create or purchase an automated system for identifying problematic
material (or even for evaluating and processing notices) in a manner that still protects
free expression. It would be prohibitively expensive to hire professional staff to review
the many more notices that we could receive in an environment that allowed for
widespread, unchecked use of automated notice-sending systems. In addition, it
would be unnecessary to make it easier for rightsholders to send more automated
notices to sites where there is no evidence of widespread copyright infringement.
Our (human) attorneys review all notices we receive and evaluate whether they are
proper notices and whether the allegedly infringing material is actually (or plausibly)
infringing. If we need to devote our limited time and resources to helping rightsholders
in their copyright enforcement, it is not unreasonable to require them to first devote the
same amount of time, resources, and human attention to sending proper notices.
10. Does the notice-and-takedown process sufficiently address the
reappearance of infringing material previously removed by a service
provider in response to a notice? If not, what should be done to address
this concern?
The current notice-and-takedown process sufficiently addresses the reappearance of
infringing material. It allows copyright owners to request that multiple files be taken
down with one notice, and it requires repeat infringer policies so there is a limit to the
extent a single user can re-upload the same file.

Some have proposed replacing the current notice-and-takedown process with a

notice-and-stay-down process, where OSPs would be required to monitor for the
reappearance of any file that has been removed following a takedown notice and
automatically remove the reuploaded file. A notice-and-stay-down process would be
overinclusive and would improperly shift the burden of copyright enforcement to OSPs.
A notice-and-stay-down process erroneously assumes a work was infringing if it was
taken down once as a result of a takedown notice. There are many possible reasons a
notice would be uncontested. Because section 512 provides penalties when OSPs fail
to take down infringing material but not when they do take down noninfringing material,
OSPs will generally take down material if there is any question it may be
infringingassuming they evaluate it for infringement at all.3 Once material is taken
down, it will only be restored if users submit counter-notificationssomething they do
very rarely.4 Users are not necessarily aware of the counter-notification procedure, and
if they are they may be unfamiliar with copyright law (and thus have difficulty arguing
why their use is noninfringing) or they may be intimidated by the prospect of going up
against major media companies with their teams of lawyers.5 Given these factors, a
successful takedown should not give rise to a presumption that a work is infringing,
particularly if that presumption is then used to automatically remove other material.
Notice-and-stay-down does not properly take fair use into account. A significant
portion of fair use analysis is an evaluation of the context in which the work in question
is used. What in one context would be an infringing use of a work or portion of a work
could in another context be a non-infringing fair use. Requiring OSPs to automatically
remove works that reappear after being removed fails to take the full fair use analysis
into account, and would likely result in fair uses being improperly deleted.
The burden of enforcing a copyright should lie primarily on the copyright owner. A
notice-and-stay-down process shifts too much of that burden to the OSP. There is a
world of difference between requiring an OSP to comply with notices when they
receive them and requiring an OSP to actively monitor for copyright infringement.
We are able to maintain an effective process for complying with section 512 because
of how few notices we receive. Complying with a new requirement to check every
upload against every piece of material we have ever taken down would necessitate an
enormous investment of resourcestime and moneyon our partresources that we
3
4
5

I
d
.
Id.

at 44.
Id.

at 4445.

frankly do not have. We would need to develop new technological mechanisms and
provide the staffing necessary to implement and maintain those mechanisms. Large
and for-profit OSPs may be able to shoulder those additional burdens, but we would
struggle under the weight. Additional burdens also serve to privilege existing and
well-funded OSPs over newcomers and organizations like us with limited resources.
Any proposed changes to the notice-and-takedown process should ensure appropriate
balance of enforcement rights, provide substantial protections for legal and fair use,
and be considerate of new costs for platforms.
12. Does the notice-and-takedown process sufficiently protect against
fraudulent, abusive or unfounded notices? If not, what should be done to
address this concern?
The notice-and-takedown process does not sufficiently protect against fraudulent,
abusive, or unfounded notices. As we report in our
semiannual transparency reports
,
we reject, without significant challenges from notice senders, over half of the notices
we receive because they are invalid for one reason or another. We reject many of these
notices because they request the removal of works that are properly and legally part of
the Wikimedia projects. If the process were sufficiently protecting against bad notices,
our compliance with notices should be close to 100%, rather than below 50%. We
would also need to spend much less time complying with themas it is, evaluating
and rejecting bad notices is an unproductive drain on our limited resources. Moreover,
the sending of bad notices has been used by antagonistic parties to pressure the
Wikimedia Foundation and intentionally attempt to waste our resources.
As the court in
Lenz v. Universal Music Corp
clarified, it is imperative that rightsholders
engage in a fair use analysis before sending takedown notices.6 Such an analysis
should prevent many bad notices from being sent, but only if it is comprehensive. To
ensure that rightsholders consider fair use in good faith before sending notices, the law
needs to provide for actual penalties for sending bad notices. Existing penalties seem
to be ineffective at deterring bad notices, especially if the dispute never winds up in
court. Penalties for repeatedly sending bad notices could be particularly effective at
stopping entities that are abusing the notice-and-takedown process for fraudulent or
inappropriate reasons.

Lenz v. Universal Music Corp, 801 F.3d 1126, 1129 (9th Cir. 2015).

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14. Have courts properly interpreted the meaning of representative list under
section 512(c)(3)(A)(ii)? If not, what should be done to address this
concern?
We frequently receive notices that contain a representative list of files to be removed
that is insufficiently specific for us to evaluate or comply with the notice. Usually that is
because the list fails to specify either the allegedly infringing material or the original
works that are allegedly infringed. Copyright owners should be required to provide
specific links to each file they want taken down, as well as provide links to the
copyrighted works they claim are infringed. For sites like ours that contain millions of
files, it is difficult or impossible to find and evaluate the material at issue based only on
vague claims of infringement. Especially considering our projects have robust systems
in place to ensure compliance with copyright law, and most of the notices we receive
are improper, we should not have to waste our time contending with poorly formed
representative lists of works.
16. How effective is the counter-notification process for addressing false and
mistaken assertions of infringement?
The counter-notification process is fairly ineffective for addressing false and mistaken
assertions of infringement. A significant proportion of the notices we receive are for
noninfringing files. While counter notifications can be effective in individual cases,
preventing noninfringing files from improperly being taken down, the existence of the
counter-notification process does not prevent sending notices containing false and
mistaken assertions of infringementnor should it need to. It is inappropriate to rely on
the counter-notification process to fend off all bad notices. The burden of preventing
abuse of the notice-and-takedown process should not fall to individual users, requiring
them to individually resist every bad notice.
17. How efficient or burdensome is the counter-notification process for users
and service providers? Is it a workable solution over the long run?
The counter-notification process is overly burdensome on users, particularly when they
have to respond to bad notices. In sending a counter-notification, a user must state
under penalty of perjury that they believe the material was improperly removed. Many
users are not knowledgeable about copyright law, and would be reluctant to go
head-to-head with a major copyright owner over whether their use of a work qualifies
as infringement. Even in cases where a user is confident of a win, the user often does
not have the financial resources, connections, or knowledge to obtain legal
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representation and pursue their case in the limited window offered by the
counter-notification procedure. Users outside of the United States, which is a
significant portion of Internet usage for any site, are even less likely to be well-versed in
U.S. copyright law or to be able to obtain legal representation. International users may
also be reluctant to submit to jurisdiction in a U.S. federal court.
Due to these considerations, users are likely to decline to send counter-notifications,
even in response to improper takedowns, in order to avoid conflict and expense. As a
result of the disincentives for users to provide counter-notifications contributes, OSPs
remove noninfringing material. The high incidence of bad notices compounds this
problem of over-removal.
23. Is there sufficient clarity in the law as to what constitutes a repeat infringer
policy for purposes of section 512's safe harbors? If not, what should be
done to address this concern?
The law should specify that repeat infringer policies should not count unsuccessful
notices that do not result in the removal of content. If the OSP rejects the notice, or if
there is a successful counter notification, then it should not count against the user.
28. Are the remedies for misrepresentation set forth in section 512(f) sufficient
to deter and address fraudulent or abusive notices and counter
notifications?
The remedies for misrepresentation are not sufficient to deter and address fraudulent
or abusive notices. As noted above, we reject most of the notices we receive. Stronger
remedies for misrepresentation could be a more effective deterrent. There is currently
no real recourse for misrepresentation unless significant harm results from a single
case of misrepresentation. While that may be appropriate on the small scale of an
individual notice, it does nothing to curtail rampant widespread misrepresentation on
the larger scale of the entire notice-and-takedown system. Given the international
nature of websites, it is also important that penalties are effective against abusive
notice senders outside the United States. Section 512(f) could be a more effective
deterrent if it increased penalties for entities or individuals who repeatedly send bad
notices, provided for some form of statutory damages not tied to actual costs, or held
notice senders to a higher standard than subjective good faith.7

See

Rossi v. Motion Picture Ass'n of America, 391 F. 3d 1000, 1007 (9th Cir. 2004).

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29. Please provide any statistical or economic reports or studies that

demonstrate the effectiveness, ineffectiveness, and/or impact of section
512's safe harbors.
Just this week, researchers at the University of California, Berkeley and Columbia
University released the
results
of three studies on the notice-and-takedown process.8
Their work provides valuable empirical information on the current state of section 512,
as it affects OSPs and rightsholders in practice.
30. Please identify and describe any pertinent issues not referenced above that
the Copyright Office should consider in conducting its study.
Transparency in the notice-and-takedown process is vital for the public to understand
how the law is working. Public disclosure of notices and counter notifications helps to
prevent abuse of the process by all parties, and it allows researchers to study the
process and evaluate its effectiveness. Public information about the
notice-and-takedown process is currently available as a result of efforts from the
private sector.
Lumen
(formerly Chilling Effects) operates a database to collect DMCA
notices and counter notifications. Individual organizations release aggregate
information about the notices they receive and how they comply with them in the form
of
transparency reports
. These voluntary efforts are commendable and bring more
transparency to the process. At the same time, because they are voluntary, they only
paint a portion of the picture. Incentives for platforms to provide more transparency
about DMCA notices and counter notifications would provide better data for future
discussions about notice-and-takedown.

Conclusion
The system embodied in section 512 has its faults, but has proven to be effective at
both enabling the existence of online platforms containing large amounts of
user-posted material and enabling rightsholders to effectively protect against copyright
infringement. For the most part, it would be best to preserve the current system with
these benefits. Any changes designed to make it easier for rightsholders to have
material taken down are likely to harm the system overall. Such changes would have
an outsized impact on organizations like the Wikimedia Foundation that are responsible
for large amounts of content but have a small number of professional staff to address
alleged copyright infringement. If there are to be any changes to the current system,
8

Jennifer M. Urban, Joe Karaganis, and Brianna L. Schofield, Notice and Takedown in Everyday Practice
(2016),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2755628
.

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they should be aimed at reducing the number of bad notices that are sent and
protecting users ability to engage with copyrighted works.
Sincerely,
Wikimedia Foundation

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