Empirical Approaches to Intermediary Liability

Legal theory has failed to offer a convincing framework for the analysis of the responsibilities of online intermediaries. The debate is characterised by a wide range of contested issues. This paper considers what empirical evidence may contribute to these debates. What do we need to know in order to frame the liability of intermediaries and, a forteriori, what does the relationship between theory and empirics imply for the wider issue of platform regulation? The core of the paper is a systematic review of existing empirical research on the copyright liability regime established with the Digital Millennium Copyright Act (DMCA 1998) and the EU E-Commerce Directive (2000). Issues examined include the number and accuracy of takedown notices, over-enforcement and abuse, transparency and due process, and finally the allocation of responsibilities and costs.