Amanda Reid, ‘Readability, Accessibility, and Clarity: An Analysis of DMCA Repeat Infringer Policies’

ABSTRACT
Internet access is an essential service in the digital age, and internet service providers (ISPs) are a powerful choke point in the digital ecosystem. The Digital Millennium Copyright Act (DMCA) offers statutory safe harbor protection from copyright liability on the condition that an online service provider (1) adopts, (2) informs subscribers of, and (3) enforces a policy to terminate repeat infringers, in appropriate circumstances. This study examines the second condition, namely how well an ISP informs subscribers of its repeat infringer policy. Other research has analyzed platform policies, like privacy policies and end user license agreements. However, there has been no systematic analysis of ISP repeat infringer policies.

To fill this gap in the literature, the present study analyzes the readability, accessibility, and clarity of the repeat infringer policies of 13 ISPs, which collectively serve over 80 percent of the U.S. consumer market. Although these ISP policies differ in length and tone, their median readability score, per the Flesch readability formula, is ‘very difficult’ for average readers. This raises the question whether average subscribers are indeed the intended audience for these policies. One wonders whether these nearly unreadable policies satisfy the DMCA’s safe harbor requirement to inform subscribers.

By analyzing not only the readability metrics but also thematic similarities and differences of the ISP policies, this study fills another gap in the literature. The policies studied vary with respect to whether a repeat infringer was defined, whether a repeat infringer could be rehabilitated, and how long a repeat infringer’s termination period might endure. Some policies outlined the counter notification process, and some cautioned copyright holders against knowingly making misrepresentations in infringement notifications. However, a legal analysis of these counter notification processes highlights that ISP subscribers lack effective mechanisms to rebut allegations of infringement. The counter notification process is inapposite in the ISP context because there is no material to put back. Moreover, subscribers lack recourse against bad faith allegations of infringement because no material was wrongfully removed or disabled. The principles of due process demand better processes before the last mile of internet service is terminated on the mere allegation of copyright infringement.

Reid, Amanda, Readability, Accessibility, and Clarity: An Analysis of DMCA Repeat Infringer Policies (September 10, 2021). Jurimetrics volume 61 issue no 4 (Summer 2021).

First posted 2021-10-25 11:00:13

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