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    Google DMCA Takedowns: A three-month view

    Michael Davis-Wilson, Electronic Frontier Foundation volunteer, June 02, 2005

    Abstract: Google receives more than 30 copyright-based takedown demands each month invoking the Digital Millennium Copyright Act. A review of three months of notices shows they cluster in a few big categories: C&Ds from companies and individuals demanding removal of competitors’ sites; C&Ds demanding removal of “cracks” or material copied wholesale; and C&Ds demanding removal of criticism.



    Google has been receiving a growing number of Cease & Desist notices and takedown demands – now averaging 30 a month – in the three years the search engine has been sending notices to Chilling Effects. These notices come from all sorts of complainants offering a wide range of rationales, primarily invoking copyright and the safe harbor provisions of the Digital Millennium Copyright Act (see DMCA Safe Harbor). Google’s takedown requests offer an interesting opportunity to examine the many different sorts of online activity that receive C&D notices and some common purposes behind those notices. This weather report examined 103 takedown notices sent to Google over a period of three months. (complete list of Google DMCA notices)

    Most of the takedown requests sent to Google do not target the company’s content, but user-created content that Google indexes. So why is Google involved at all? Why aren’t these notices just sent directly to the alleged infringers? Clearly, the complainants think that they are more likely to get what they want from Google than they would from the people whose activity they object to.

    As a dominant Internet intermediary, Google is accessible where an alleged infringer may be difficult to contact. Some complainants turn to Google only after their attempts to deal directly with alleged infringers or their service providers have failed. Sometimes people don’t acknowledge notices sent to them. If the service provider for the material in question is based in a nation with different intellectual property laws or enforcement, it may ignore notices entirely. For example, one complaint in the database comes from a site operator claiming that his site was mirrored in its entirety by a Russian host who ignored months of complaints, Copyright Owner of Adult Websites Requests Removal of Infringing Content.

    What’s more, Google faces strong incentives to respond to complaints of infringement in its search results or hosted content. The DMCA’s safe harbor provisions protect hosts and providers of “information location tools” from monetary liability if they promptly remove allegedly infringing material from their listings. On the flip side, the provisions leave service providers open to suit if they refuse takedown demands. In the face of uncertain liability, Google may find it cheaper to remove a challenged site from its listings. Unfortunately, in many cases, removing a site from Google Search is almost as good as removing it from the Net entirely.

    These incentives combine to lead many complainants to frame their takedown demands as copyright complaints. The C&Ds reviewed cluster in a handful of categories: C&Ds from companies and individuals demanding removal of competitors’ sites; C&Ds demanding removal of “cracks” or material copied wholesale; and C&Ds demanding removal of criticism.

    The largest group of complaints to Google in the period studied came from companies requesting that websites of their competitors be removed from Google Search. The infringement claim usually turns on some sort of promotional material – advertising language or information about the products or services on offer - but the alleged infringement is rarely central to the company’s business; these are jewelry merchants and safari operators, not publishers or software developers. The claims’ validity varies: some sites targeted for complaint seem to have essentially mirrored the complainant’s site and changed the contact address, while others merely say similar things about similar products. ZSComm.com, a vendor of international phone cards, offers a typical complaint of this type, Hold the phone (cards), claiming that a competitor has misappropriated text from his sales pages:

    On http://www.zscomm.com/albania.htm (my website) I have used the following text: "Check out the lowest calling cards rates and phone cards rates below. Click on the calling card name for more details and to purchase. We provide the rates of all of the phone cards to specific countries for convenience." at the top of the page for my visitors.

    Regardless of how similar the allegedly infringing page might be, one wonders how many different ways there can be to claim low prices on Albanian phone cards. In many such cases, the similarities would be excused by the "scenes a faire" doctrine, rather than taken as evidence of infringement.

    This sort of takedown request is problematic because even when there may be a valid complaint, the notice’s main object often seems to be the elimination of a competitor - indeed, a handful of notices also demand that any harm done to their Google ranking by the allegedly infringing site be reversed, like this one from Greenlife, DMCA complaint again www.namibiatourism.com :

    As a result of this, it appears that google has penalized www.honeymoon-safari.net as the site has disappeared from your SERPS, after holding top positions for over 2 years. I would appreciate if you could please remove any penalty from this site asap, as I have never plagiarised or lifted any work or content from others...ever!

    The only option available to Google in this situation – removal – suppresses a site entirely when the alleged infringement may be unintentional and could often be remedied entirely by a simple paraphrase.

    The second most popular form of notice alleges actual piracy. Unlike the first type of complaint, the allegedly infringed material here is critical to the complainant’s business – cracked software, copied educational materials, etc. The alleged infringer is not usually an established web site, or at least not one within US jurisdiction; instead, the infringers are Usenet posters, bloggers, or foreign warez sites. For this reason, the same complainants appear over and over again, as the material they’re trying to control gets reposted within hours of being taken down. Witness, for example, Microsoft’s unending campaign against people posting product keys for Microsoft software (see e.g. Microsoft Complains About Crack in DVM0day Blog (#3)). In the most extreme case, Star’s Edge Productions has sent in dozens of complaints about a single Usenet poster ().

    The third, and most troubling, common type of C&D uses takedown policy to quash criticism. In each of these cases, the complaint demands that a site be removed because it says uncomplimentary things about the complainant. Overseas, these complaints usually rely on defamation law. In the US, however, that tactic is less viable; defamation is difficult to prove under US law even against the original poster, and CDA § 230 exempts service providers from liability for defamation committed by their users, rendering all such actions not Google’s problem. Denied the tool of defamation, complainants seeking to suppress criticism turn to intellectual property law. Some complaints claim that the alleged infringer violated their trademarks by mentioning their company by name; others claim that the publication of embarrassing email correspondence violates their copyright. WSI Internet Consulting has maintained that an alleged infringer violated their copyright by redistributing a press release, WSI Seeks Removal of Another Hijacked Press Release :

    This matter is identical to the issue we brought to your attention previously on or about March 31st, 2004 whereby the same party had, without our consent, posted a copy of a press release on various other web pages . . . The press release has wrongfully been posted to the following web pages, each of which has been separately identified by search query and infringing web pages described below...

    These complaints are disturbing because they appear to be attempts to silence inconvenient speech; in the case of IP-based complaints, they do so using laws that were designed for a different purpose altogether.

    The takedown requests that Google receives show us a microcosm of the problems of abuse and overreach in the implementation of intellectual property law. Legal mechanisms intended to protect the owners of IP are often used to suppress competition and quash legitimate speech. When they are used against actual infringement, the remedies available are often excessive, and just as often fail to successfully stop infringement. Dozens of legitimate websites are taken down, and the true pirates keep coming back.

     


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