ENFORCEMENT

Joint Strategic Plan on Intellectual Property Enforcement
SECTION 2
sites that have received a large number of valid DMCA
take down notices, and otherwise refining search
results to visibly affect the rankings of some of the
sites with the most notorious illegal uses; (ii) removing
additional terms from autocomplete predictions that
would pull-up DMCA demoted sites; and (iii) testing
new advertising formats to help point consumers to
legitimate sources of content. 44
These search innovations represent promising actions
towards reducing traffic to websites whose operators’ or
users’ primary purpose is the dissemination of infringing
music, film, and other creative content. 45 For example,
one leading search provider reported in 2015 that
its initial search modifications “have been promising,
demonstrating that sites that received significant volumes
of copyright infringement notices were impacted” in
terms of traffic and visibility. 46 Another search entity’s
improvements to its search functions reportedly cut
search-directed traffic to sites used to promote and
distribute unlicensed content by as much as 50 percent. 47
The prioritization of search results to lawful content
and products is not a complete solution to combat
commercial infringement, especially since sophisticated
commercial pirates will continually evolve their tactics,
and also because non-search functions are also used
to locate and access new sites used to promote illegal
content and products. Nevertheless, current public
reporting indicates that prioritizing search results to
legal content can play a central role in promoting a
safe and secure Internet experience.
ACTION NO. 2.10: Support development
of best practices, through a multistakeholder
process, for Internet search providers to address
search result rankings of significant commercialscale
piracy and counterfeiting sites. IPEC and the
U.S. Interagency Strategic Planning Committees
on IP Enforcement have identified the need
for research and further development of best
practices, through a multistakeholder process,
on autocomplete, down-ranking/demotion, and
other targeted treatment of websites used to
promote illegal content in Internet search as a
means of diverting traffic away from infringing
content or counterfeit products. Such research
and best practices could also address the
potential development of adaptive methodologies
to anticipate and thwart the operators of
these websites’ methods of circumventing
internationally-recognized IPR norms. Further,
best practices should protect principles of free
expression and fair use, and avoid mechanisms
that are overly-restrictive, attempt to filter
legitimate search results, or impose unnecessary
burdens on search service providers.
2. Support Practices and Policies to Improve
DMCA Notice-and-Takedown Processes.
The DMCA established a notice-and-takedown regime
to facilitate the removal of IP-infringing content,
while limiting the liability of online service providers,
including, inter alia when they act as “mere conduits”
or host content at the request of third parties. 48 When
implemented appropriately, the regime allows internet
service providers (ISPs) to benefit from a “safe harbor”
that limits their monetary liability. Importantly, ISPs are
not required to proactively monitor the use of their
services for users’ infringing activity.
The digital economy of the 21 st century has produced
unanticipated types of infringing activity that are testing
the limits of the DMCA safe harbor provision, creating
technological and legal challenges for IP rights holders
and Internet intermediaries alike. While the DMCA
provides a mechanism to combat some forms of
copyright infringement, rights holders have commented
that the takedown system is too resource-intensive and
time consuming, especially when it requires constant
re-notification of the same content. 49 Moreover, “many
individual creators and small and medium-sized enterprises
(SMEs) do not have the resources to engage in the
ongoing monitoring and notification process required
by the DMCA.” 50 Meanwhile, ISPs face a significant
FIG. 38: Uniform Resource Locators (URLs) requested to be
removed from Search per week (over 20 million URL removal
requests the week of August 15, 2016). 52
24,000,000
18,000,000
12,000,000
6,000,000
Oct 22, 2012 Jan 27, 2014 May 4, 2015
Week of 8/15/16
20149184 URLs
70