From Litigation to Arbitration: Empirical Insights into the DMCA Notice-and-Takedown System in Cross-Border E-Commerce Copyright Disputes

Authors

Baichuan Huang

Abstract

In cross-border disputes, the Digital Millennium Copyright Act (DMCA) notice-and-takedown system’s reliance on federal litigation as its final step faces serious procedural obstacles. An empirical analysis of twenty-four lawsuits filed in the Southern District of New York (SDNY) reveals non-appearing defendants, protracted proceedings, and Amazon’s occasional reinstatement of infringing products based on statutorily defective counter-notices. SDNY’s routine approval of email service on foreign defendants raises additional concerns about treaty violations and inconsistent application of legal standards. To address these inefficiencies, this Comment proposes a public, arbitration-like mechanism as an alternative to litigation. While private arbitration models—such as Amazon’s Patent Evaluation Express (APEX) program—are instructive, they lack feasibility due to corporate disincentives and policy constraints. Instead, a legislative framework modeled on the Copyright Claims Board (CCB) and the Uniform Domain-Name Dispute-Resolution Policy (UDRP) would ensure greater accessibility, consistency, and efficiency in the “last mile” of DMCA disputes.

Recommended Citation

Baichuan Huang, From Litigation to Arbitration: Empirical Insights into the DMCA Notice-and-Takedown System in Cross-Border E-Commerce Copyright Disputes, 40 Emory Int'l L. Rev. 165 (2025).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol40/iss1/6