Judge Calls Out Obama Admin For Overuse Of State Secrets Privilege In No-Fly Case

You're All The Weakest Link: Bad Law Permits Bad Takedowns, Which Google Handles Badly

from the a-chain-of-broken-links dept

Mon, Apr 22nd 2013 2:21pm — Leigh Beadon

Google Operating System is a Blogspot-hosted blog offering "unofficial news and tips about Google." Earlier this month, the operator, Alex Chitu, checked his email to discover that a 2008 post had been removed by Google in response to a DMCA takedown. This was confusing to say the least:

Apparently, this is the infringing post: http://googlesystem.blogspot.com/2008/02/lyrics-for-youtube-music-videos.html (Google Cache). It's a post about a Greasemonkey script that allowed you to show music lyrics in the YouTube interface.

...

I've managed to find the DMCA notice: "The URL listed below is one of nearly 20 song lyrics sites who have attempted to post lyrics for the song titled 'Alden Howell' by the artist Inspection 12. The lyrics posted on this and other sites are not accurate and the artist has not given them permission to post lyrical content. Inspection 12 has been making efforts to contact these websites directly in order to have the content removed. We are attempting to have this URL and others like it to be excluded from google search results for the name 'Alden Howell'."

Unfortunately for Inspection 12, that blog post doesn't include their lyrics. In fact, it only includes a screenshot with lyrics from a much more popular punk band. Inspection 12 has never contacted me and no post from this blog mentions 'Alden Howell' (except for this post, obviously).

As Tim Cushing wrote in a recent headline, "in the long history of specious DMCA claims, this is definitely one of them." Chitu, unlike many people who are rightfully too intimidated by potential liability, filed a counternotice... and it was rejected.

So we've got an obviously non-infringing post that has been wiped off the web and, at the time of writing, is still gone. That's not okay, and it's time to ask how it happened. There's no shortage of reasons.

Firstly (or more accurately lastly), we've got Google's handling of the DMCA request. As Chitu points out, it was just a search result takedown, but Google chose to actually take the post off of Blogspot as well. That wasn't an accident, it's their process:

From time to time, the Search team may receive copyright removal requests for search results that link to other Google products like Blogger or YouTube. In these cases, we forward these requests to the appropriate teams to evaluate the allegedly infringing material.

Actually, maybe "process" is too generous. If they "evaluate" the requests (twice, apparently—once at Search and then again at Blogger), surely they would filter out a takedown like this one that doesn't even pass the laugh test. And not only did these two evaluations fail to catch it, the review they supposedly conducted after receiving a counternotice still didn't catch the error. Given the nature of the law and the requirements it places on Google, all of this is somewhat understandable, and would be somewhat excusable but for one thing: Google's terrible customer service. Blanket, form-letter rejections that ignore all reason and logic, sent by a faceless monolith, are among the most infuriating things a customer can receive. Good luck getting actual help with a human being.

But the buck hardly stops at Google. It doesn't even really land there. After all, why did Inspection 12 file this takedown in the first place? Chitu asked them just that:

I've contacted Inspection 12 and they say "that must have been submitted in error. not fully understanding the DMCA notice. our intent wasn't to post on a blog or complaints about a blog. it was to submit a complaint to google about websites that are posting lyrical content that is falsely described as Inspection 12 lyrics in order to sell ringtones."

That's a lot better than some of the furious missives we've seen in the past when copyright holders have been called on their shenanigans, but there are still some big problems. If you're "not fully understanding the DMCA notice," then you are not allowed to file it. How can you sign your name to say you have a "good faith belief" in something if you knowingly don't understand what it means? Inspection 12 is clearly guilty of abusing the DMCA process. But one thing they're probably not guilty of is perjury.

And that brings us to the final problem, where the buck really does stop: the DMCA itself. As we've discussed before, the prescribed text of a DMCA takedown notice employs some clever wording to imply (intentionally or otherwise) that it's more strict on the rightsholder than it actually is. The "under penalty of perjury" language is surgically separated from the bulk of the notice—it applies only to the statement that you are the copyright holder or an authorized agent of the copyright holder. As for the statement that the material you are targeting is in fact infringing, that's just made under a good faith belief. That is a much lower bar, and while it's not great to stand in court and have it demonstrated that you asserted a good faith belief when there was none, it's hardly a clear-cut and substantial safeguard against abuse the way "penalty of perjury" is.

So let's be clear on this: the DMCA is harsh on anyone messing with copyright holders by incorrectly claiming rights they don't own, but lenient on copyright holders abusing the public.

Nobody is blame-free here, except Chitu and his blog. Google needs to handle these requests better, and Inspection 12 should never have sent that notice (nor should they be wasting their time on a DMCA campaign against lyric websites in the first place). But the real culprit is the DMCA itself, which is constantly pushing companies like Google in this regrettable direction, and makes it all too easy for rightsholders like Inspection 12 to abuse the law. Until we get a system that holds both sides of the equation to the same standard, and until copyright holders demonstrate that they can use the takedown system judiciously and responsibly, all their protestations about online services not doing enough to fight infringement will fall on deaf ears (or be drowned out by laughter).

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Filed Under: dmca, inspection 12, takedown
Companies: google

17 Comments

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Anonymous Coward, 22 Apr 2013 @ 2:39pm

Its because the bad law was based on bad premises as well.
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S. T. Stone, 22 Apr 2013 @ 2:50pm

I�ll keep this short and sweet: fuck the DMCA.
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Anonymous Coward, 22 Apr 2013 @ 2:57pm

Re:
No, don't! You might catch a copyright!
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Anonymous Coward, 22 Apr 2013 @ 3:14pm

"Chitu, unlike many people who are rightfully too intimidated by potential liability, filed a counternotice... and it was rejected."

Then Google loses its safe harbor. So the problem REALLY, is that Google is able to impose terms of service that allow them to remove content for no good reason. The problem is not really the DMCA in this case... if Google was actually following the DMCA, the content would have been restored soon after getting the counternotice.
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Violated (profile), 22 Apr 2013 @ 3:17pm

Censorshit
This does make me sad when barely a week can pass without another story about false DMCA censorship cropping up on one of these pro-Internet news sites. This then is only the tip of a very large iceberg when many more people either do not spot it or have no idea how to complain.

Then no matter how much damage this broken DMCA law does to the Internet then here are members of Congress doing nothing to fix it. Indeed they seem quite happy with the damage being done when crap like this is just natural fall out from rights holders protecting their media.

I can see with my own eyes that the system is scaling up to breaking point when vast censorship happens every month now is a major social disaster. When, where and how this explosion happens remains to be seen but the DMCA will never be the same afterwards.

Then lets recall Google's mantra of 'do no evil'. So on the same day they get fined in Germany for unlawful spying we have this case where Google's handling is so shoddy that there is no way that they can claim to be innocent in the mass censorship that occurs.
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Anonymous Coward, 22 Apr 2013 @ 3:19pm

the problem isn't even the DMCA really. the fault lies squarely at the feet of those in Congress that think more about lining their pockets with industry funds than doing what they were elected for, ie, representing the people. had they been more concerned with doing things correctly, they would have written into the DMCA the consequences of abusing it. however, once they heard the rustle of hundreds of dollar bills, their public concerns went straight out the window, like all laws that would and should have at least some public regard in them!!
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Rikuo (profile), 22 Apr 2013 @ 3:22pm

Re:
Actually, you're incorrect. It was noted on an earlier article (can't remember where) that there is no legal requirement for a web-site to restore content. The DMCA says that, for a site to retain safe-harbours (i.e., not get sued alongside whoever's doing the actual infringing) it must choose to take down the content. Since a web-site doesn't want to be sued, they will invariably always choose to take-down. However, they don't have to restore content. They've retained their harbours by taking it down upon notice. Thus, for them, they don't actually gain anything from restoring content, in fact, it only leaves them open to being sued.
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Uriel-238 (profile), 22 Apr 2013 @ 3:42pm

Until we get a system that holds both sides of the equation to the same standard, and until copyright holders demonstrate that they can use the takedown system judiciously and responsibly, all their protestations about online services not doing enough to fight infringement will fall on deaf ears

Unless the protestation is followed by a fat campaign contribution. Then OMG TERRORISTS!
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Uriel-238 (profile), 22 Apr 2013 @ 3:48pm

We could change that.
They've retained their harbours by taking it down upon notice. Thus, for them, they don't actually gain anything from restoring content...

Well, they lose traffic. If we taught people the habit of seeking out other resources every time YouTube or Google said "Sorry: DMCA!" then eventually people would start their searches at Vimeo before they hit YouTube.

That might actually encourage them to clean up their act.
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Anonymous Coward, 22 Apr 2013 @ 4:01pm

Re: Re:
"They've retained their harbours by taking it down upon notice. Thus, for them, they don't actually gain anything from restoring content, in fact, it only leaves them open to being sued."

The law is pretty clear about counter-notices and restoring content.

The safe harbor does not apply "...unless the service provider... replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order..."

The problem is that Google thinks they aren't liable ANYWAY, due to their TOS. So they feel like they need the safe harbor on one side, but they feel like they don't need it on the other side. Just because you lose the safe harbor doesn't mean you're automatically liable, after all.

Really, Google has no business ignoring a counter-notice, even if they have the legal right. Google keeps the ENTIRE safe harbor by honoring the counter-notice and restoring the content, and the person who actually OWNS the copyright now has the name and address of the infringer and can easily go after them in court if they so choose. I cannot think of any reason why they would not do this.
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Anonymous Coward, 22 Apr 2013 @ 9:12pm

Re: Censorshit
???
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Anonymous Coward, 22 Apr 2013 @ 9:31pm

Re: Re: Re:
The counter notice possibly didn't fit proper criteria, but that really doesn't matter. There are other options, but it doesn't even apply to that subsection because of improper reference.
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Ninja (profile), 23 Apr 2013 @ 3:36am

The next step - and correct me if I'm wrong - would be to go to the courts to dispute the DMCA notice. That's when things get even uglier. Can any ordinary Joe/Jane that has a small blog for fun even consider this route? Even if it's some sort of professional blogger with average incomes, would this be a viable route? So we are effectively dealing with an issue that directly harms free speech because there's no easy and affordable way to challenge it and neither Google nor the copyright holder would face any consequences anyway. But the First Amendment is an old-fashioned concept, no?
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special-interesting (profile), 23 Apr 2013 @ 3:48am

There seem to be no helping that Google handles DMCA take-downs badly. Its inherent in the way DMCA was written. Its bad law derived from flawed legislation to begin with. It cant be helped.

This terrible handling of web content is a result of ignoring judicial review and trial by jury with at each stage some level of evidence of harm must be shown. In spite of thousands of examples of the DMCA being abused as a way of censorship and tools for corporate rivalry its amazing that the courts have not blasted the DMCA into oblivion.

Mentioned was using the DMCA to take down lyrics with no mention of Fair Use Rights. If ever there was a more sensitive area of copyrighted content usage its got to by music lyrics. Talk about cultural shutdown crime! In their corporate selfishness they would destroy the legacy of so many artists. No way would any real artist agree to that.

Taking liberty off of a previous TD article comment; The only modifications that copyright law needs can be performed with a sledgehammer.

Since Google seems to take seriously the removal of any link they are arguable doing a better job than most especially since they do contest some of them. Especially the stupid ones like �remove ALL the infringing content links�. Which would be 90% of the entire web as defined by Hollywood accounting principles. (don't laugh these very same Hollywood accounting statistics are being submitted to congress as fact as you read this)

The commentary about the legal aspects of the DMCA is dismal reading. This was written by media special interest groups wasn't it? No respect for anyone except themselves?

The fictional proud ship USS RIAA. �Damn the torpedoes full speed ahead! Engine room... Ramming Speed!� (What... We hit the constitution? Get ready for another run!)
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Anonymous Coward, 23 Apr 2013 @ 7:43am

Sue 'em
The time has come for Google to use some of it's ill-gotten gains to take one or more of these cases to trial in Federal Court. Enough is enough. I'd volunteer, but my name isn't Buffett, or Gates.
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WysiWyg (profile), 26 Apr 2013 @ 2:43am

That's perjury alright!
"it was to submit a complaint to google about websites that are posting lyrical content that is falsely described as Inspection 12 lyrics in order to sell ringtones."

As you say, the perjury part only applies to the claim that you own the copyright. But if you send notices against things that you admit you don't own the copyright on, then you ARE committing perjury.
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Bankruptcy Los Angeles, 18 Sep 2013 @ 2:51am

Bankruptcy Los Angeles
I actually found this blog and that is amazing thing I enjoy reading this easy to understand stuff. Keep it up.
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