Google Provides Numbers On Just How Often DMCA Takedown Process Is Abused

from the quite-frequently,-it-appears dept

Wed, Mar 18th 2009 9:19am — Mike Masnick

Some entertainment industry lawyers have been going around lately, pitching a fable that the DMCA isn't really that bad, since bogus takedown notices are somewhat rare. However, some new evidence from Google suggests quite a different story. Reader Slackr points us to some news about Google filing a comment on New Zealand's proposed new copyright law that would kick file sharers offline based on accusations rather than convictions. While New Zealand has agreed to hold off putting the law into place, while it hopes to work out a compromise, the government is accepting submissions from interested parties. While it's interesting alone that Google is participating in the process, even more interesting is what it has to say about its experience with DMCA takedown notices:

In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.

Google's point is that these types of laws are widely abused, and setting up such a system where punishment is handed out without any real due process is going to lead to an awful lot of mistakes. But, these stats are worth discussing just for what they say about the DMCA itself, and that myth that the process is rarely abused. From the numbers Google has seen, it's quite clear that the DMCA isn't just abused, it's regularly abused in ways that are both anti-competitive and chilling.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: abuse, dmca, new zealand, takedowns
Companies: google

35 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Weird Harold, 18 Mar 2009 @ 9:28am

If 37% of the claims were false, Google should move those claims off to the AG in their area. DMCA has some pretty stiff penalties for false claims.

I am also confident from experience that maybe 1 out of 100 violations is actually reported to Google for removal. So in reality, the 37% of false claims is a very small number compared to the number of people to intimidated by the process to do it.
[ link to this | view in thread ]
elduderino, 18 Mar 2009 @ 9:30am

flamers and trolls
I now open the floor to those who would cry "anarchy" if such draconian laws were not in place
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 9:35am

Re:
Once again, Harold, you come up with completely made-up, completely bogus, and completely irrelevant "statistics." Personally, I don't give a rat's ass about your "experience." Give us some hard numbers to back up your claims -- you know, facts. Otherwise, you're just another asshole with a worthless opinion.
[ link to this | view in thread ]
Chronno S. Trigger, 18 Mar 2009 @ 9:43am

Re:
"If 37% of the claims were false, Google should move those claims off to the AG in their area. DMCA has some pretty stiff penalties for false claims."

That's exactly what I was thinking. I hope Google douse turn them in.

"I am also confident from experience that maybe 1 out of 100 violations is actually reported to Google for removal. So in reality, the 37% of false claims is a very small number compared to the number of people to intimidated by the process to do it."

Assuming that 1 of 100 is an accurate number and the other 99 are valid, how many of those 99 actually care about the infringing or are like Trent and would rather see the content up?

This also brings up two questions; Out of the one half against competitors, how many are just to stifle competition and not really valid. And, if 1/3 of the claims are invalid and obvious to Google, how many of the other 2/3 are invalid just not obvious (and how many are "valid" yet should not be)?
[ link to this | view in thread ]
Guy One, 18 Mar 2009 @ 10:16am

Man i tried to do some Pro-Bono DMCA take downs, you know just looking out for the big guys, just you tube videos that use clips of songs or clips of movies...

but it never worked out my request to have the video removed was always denied...
[ link to this | view in thread ]
Matt, 18 Mar 2009 @ 10:22am

Re:
really? what about the flip side, where people don't even see the DMCA complaint or don't know how to respond, do nothing, panic, etc? Maybe that same 57% should be the amount that are false.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 10:22am

So let me get this straight...
1. 57% are businesses targeting competitors, and thus do not actually control the copyright of the work being targeted.
2. 37% are otherwise not valid copyright claims.

That suggests 94% of DMCA takedown notices to Google are perjurious. This, in turn, suggests two things:
1. DMCA takedown notices are being widely abused.
2. A bunch of legal departments look ripe for censure or disbarring.

How long before these start happening?
[ link to this | view in thread ]
Weird Herod, 18 Mar 2009 @ 10:25am

Re: I'm confident...
>I am also confident from experience that maybe 1 out of
>100 violations is actually reported to Google for
>removal. So in reality, the 37% of false claims is a very
>small number compared to the number of people to
>intimidated by the process to do it.

Cool Harold, here's some other made up statistics...

I'm 99.6% confident that 1 out of 345 posts, you posts contain 0.1% kernels of what 4 out of 5 people might consider truth - but only about 51% of the time.
[ link to this | view in thread ]
Matt, 18 Mar 2009 @ 10:28am

Re: Re: I'm confident...
You misplaced a decimal. 5.1%. Jeez, where is your basic math?

Mike, I'm really curious, I know you can't answer this, but does this "Weird Harold" IP actually come from anything linking or is he going through an anon proxy?

It smells too much of intentional RIAA involvement that I wonder who he is directly.
[ link to this | view in thread ]
mike42 (profile), 18 Mar 2009 @ 10:33am

Re: So let me get this straight...
Whenever the content industry lobbyists are out of Washington DC...
[ link to this | view in thread ]
Juris Prudence, 18 Mar 2009 @ 10:39am

Maybe Google (and I suspect most companies with lesser resources) doesn't have the time and/or money to shuffle those 37% of false DMCA takedowns off to their local AG. It's not like you can just forward them an email, you've got to have someone fill out forms, probably notarized, provide evidence, etc., and that's even if the AG gives a rat's ass about it in the first place. Usually they're too busy trying to jail people for file sharing, or worrying about prostitutes on craigslist to bother with actual infringements of the "law" (as I'll loosely but aptly call the DMCA until it's completely overturned).
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 10:50am

Re: So let me get this straight...
I imagine there's alot of overlap with those two numbers. You can't find much meaning by adding them together.
[ link to this | view in thread ]
DittoBox, 18 Mar 2009 @ 10:58am

Re: Re: Re: I'm confident...
I should like to second this question. Where's his IP coming from?
[ link to this | view in thread ]
Comboman, 18 Mar 2009 @ 11:01am

Re:
If 37% of the claims were false, Google should move those claims off to the AG in their area. DMCA has some pretty stiff penalties for false claims.
Unfortunately, there are absolutely no penalties for false claims made in "good faith". You have to prove not just that the claim was false, but that the claimant knew the claim was false when they made it. That's a loophole big enough to sail the Queen Mary through.
[ link to this | view in thread ]
Weird Harold, 18 Mar 2009 @ 11:08am

Re: Re:
Note two things:

1) from my own experience (your experience may be different)

2) I have worked in the past for an image content company. There are so many violations of copyright that it would be a full time job just to fill out the papers to try to get them taken down.

It's one of those weird things in the world. There is a point where theory is nice, but actual real world experience is important. I am estimating on experience, not speculating out my ass.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 11:09am

Re: So let me get this straight...
Don't think these stats are stand alone. There can be some overlapping. So, that 37% "not valid copyright claims" can also be from the 57% "businesses targeting competitors." If a business is just sending the notice to hurt a competitor, then it is not likely to be a valid copyright claim.
[ link to this | view in thread ]
Weird Harold, 18 Mar 2009 @ 11:10am

Re: Re: So let me get this straight...
Not just that, there is no indication that the 57% aren't valid. There is no way to know if the invalid part of the 57% is already counted in the 37%.

Like you said, not two numbers that can be added together to extract meaning, except perhaps to have a good rant on a blog.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 11:12am

Re: So let me get this straight...
Not quite, you're making the assumption that the "targeting competitors" (57%) and "invalid copyright claims" (37%) are mutually exclusive.

It's quite possible that a DMCA notices that falls in the first category but not the second-- it targets a competing company with a valid claim.

The article makes no mention what percentage of these DMCA notices falls in both categories.

My question here is that the article only offer percentages. Is there any mention of the total number of DMCA notices that Google has received? That might shed some light on how frequently this law is (ab)?used.
[ link to this | view in thread ]
hegemon13, 18 Mar 2009 @ 11:16am

Re: Re:
Unless the claimant does not own the copyright. If they are not the copyright owner, they would have a very hard time convincing the court that they were acting in good faith. And that situation happens quite often, many of the falling into the 57%.
[ link to this | view in thread ]
Casper, 18 Mar 2009 @ 11:35am

Re:
I am also confident from experience that maybe 1 out of 100 violations is actually reported to Google for removal. So in reality, the 37% of false claims is a very small number compared to the number of people to intimidated by the process to do it.

Assuming the absurd number is correct, which I doubt, I am in the 99%, but not because I am intimidated by the system. Most, if not all, the professionals I work with believe that the utilization of your product in free materials that do not portray in a negative light for noncommercial purposes is actually a good thing. Think of it as free advertising and embedded marketing. It is one thing the media and music industries need to learn. People don't like advertising crammed down their throat, but if a song is used as a theme to an amusing video, they are far more likely to inquire of their own free will about the song (product) and look into purchasing the product.

How many of your 99% fall into the category of people like us?
[ link to this | view in thread ]
Chronno S. Trigger, 18 Mar 2009 @ 11:53am

Re: Re:
There should be. Google shouldn't need to research these claims, they should already be fully researched and documented before the DMCA takedown is filed. I understand that mistakes happen but 37% is an insane number and it's worse when one realizes that Google can't be responsible for fully researching these claims and probably missed the less obvious false claims.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 18 Mar 2009 @ 12:34pm

Meh.
I'd be much more impressed if Google didn't treat wrongly-formatted take-downs as if they were the real thing. Is it too much to ask your lawyers to be legalistic?

I understand they probably get a lot of these things, but Google has done absolutely nothing to stand up for its users. I'm not talking wacky measures, I'm talking not letting a 15 year old Aussie take stuff down.

OTOH, at least they're saying *something* now. (slow golf clap)
[ link to this | view in thread ]
Stephen, 18 Mar 2009 @ 12:34pm

DMCA
All DMCA takedowns should have to be registered with a central place.. Would make it much easier to track BS takedowns.. and go after those who do it.
[ link to this | view in thread ]
Slackr, 18 Mar 2009 @ 1:02pm

I'm surprised no one is actually happy that Google came to the party on this by providing a very substantive voice to the argument. At present much of the debate is done without hard data and people guessing about how much abuse of the system exists outside of opinion, 'experience' or anecdotes.

Having watched this play out in NZ and the Governments refusal to listen to ISPs and technical experts speak out on the stupidity of this law, I'm glad that Google have provided an authoratative challenge to the weaknesses of the law as it stands.
[ link to this | view in thread ]
crucible, 18 Mar 2009 @ 1:02pm

Google Provides Numbers...
I just cant understand why seemingly intelligent educated people can't wrap their heads around the fact that sites like YouTube and or file sharing sites are the best thing that has ever happened to them. Well the lawyers have...maybe therein "lies" the problem.
[ link to this | view in thread ]
Chris Brand, 18 Mar 2009 @ 1:55pm

The actual report
Out of interest, I followed the various links from new stories, etc. It seems that Google told the NZ government about the findings of the paper at http://mylaw.usc.edu/documents/512Rep-ExecSum_out.pdf, from the University of Southern California. Those of you speculating about overlapping numbers and the like might like to read the actual report.
The numbers cited in the press seem to come from here:
57% of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
37% of the notices sent to Google targeted sites apparently outside the United States.
which is, of course, just one possible reason why a claim could be invalid.
[ link to this | view in thread ]
ehrichweiss, 18 Mar 2009 @ 1:57pm

Re: Re: Re:
He's not acting for "theory", he's asking for facts.

And regardless of your experience, you are still speculating "out your ass" about the real world numbers. Since Google likely deals with a few hundred thousand times more notices than you have dealt with in the "image content company" you speak of, I trust them a lot more to know how the system is abused, especially since you seem to be a clueless apologist for the current ass-backward copyright system.
[ link to this | view in thread ]
Weird Harold, 18 Mar 2009 @ 2:38pm

Re: Re:
Actually, where this comes in a bunch is images shot for news organizations, commercial images, etc. One of the most commonly abused images are celebrity photos. Perez Hilton is a great example: http://www.blogherald.com/2007/10/01/copyright-cases-to-watch-x17-v-perez-hilton/

(it's older, but that single site was responsible for thousands upon thousands of violations before resolution was found, http://www.citmedialaw.org/threats/x17-inc-v-lavandeira )

That is one site on tens if not hundreds of thousands of celeb sites and pages using content without permission, often not dealt with because they are too small, or the content comes from people such as yourself.

I gather you are not a producer of images, but of something that might be in an image. That is a different ball of wax, because yes, widespread viewing of your image would likely do you good (and not cost you anything). But if you are a photographer in the business of shooting images, every non-permitted use is a potential loss of income or value.
[ link to this | view in thread ]
Weird Harold, 18 Mar 2009 @ 2:41pm

Re:
The "Do No Evil" company is like Mike here. They want to blow all of copyright, patent, and all that silly nonsense into the weeds so they can do what they like without anyones permission. If anything, I would be shocked if Google didn't spout off the type of stuff they did in this meeting. They have a massive vested interest in making DMCA style claims hard or impossible to make.

Do no evil, unless it's good for google.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 3:38pm

Re:
DMCA has some pretty stiff penalties for false claims.

That are never enforced. That's the nice thing about having the government in your pocket like the entertainment industry does.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 3:41pm

Re: Re: Re:
The problem here is the word "potential." You don't get paid for "potential" sales, so why should you get paid for "potential" lost sales? Every time you go outside your house, you can "potentially" get hit by a bus. Does that mean that every bus operator owes you something?
[ link to this | view in thread ]
Michael, 18 Mar 2009 @ 3:48pm

Who cares?
I don't know why people even bother worrying about this, its not like they can stop infringement, we'll do as we please on the internet, and only the incompetent ever get caught anyway.
[ link to this | view in thread ]
Anonymous Coward, 18 Mar 2009 @ 8:32pm

Re: Re: DMCA FASLE CLAIMS NOT PROSECUTED
I do not recall any cases where the false claimant was prosecuted for their offense, althought there plenty of case to go after ... why is this. I guess it is ok to go around making false accusations if you have lots of money and influence, otherwise better be careful.
[ link to this | view in thread ]
Enrico Suarve, 19 Mar 2009 @ 2:39am

Re: Re:
And the 57% are what? Good?

At least the 37% have a fair to middling chance of being merely incompetent

PS Harold - I just noticed bluecoat blocks your blog as pornography, ah the irony ;0)
[ link to this | view in thread ]
Paul Levy, 19 Mar 2009 @ 9:47am

Amazing Data
Mike, how do I reach you offline about this data?
[ link to this | view in thread ]