Copyright Bots Kill App Over 'Potentially Infringing' Images, Follow This Up By Blocking App For Use Of CC/Public Domain Images

from the and-fair-use-is-nowhere-to-be-found dept

Fri, Mar 27th 2015 4:07am — Tim Cushing

With bots performing all sorts of intellectual property policing these days, fair use considerations are completely off the table. Nuances that can't be handled by a bot should theoretically be turned over to a human being in disputed cases. Unfortunately, dispute processes are often handled in an automated fashion, leading to even more problems.

Tolriq Yatse, the developer of a popular Xbox Media Center (XMBC) remote control app for Android phones, ran into this very problem with Google's Play Store, which suddenly dumped his app over "intellectual property violations" after more than 2 years of trouble-free listing. This might have been a quick fix if Google had been more forthcoming with details, but all Yatse received was a brief notice as his app was removed from the Play store.

Nothing was changed at all apart filling the new forced content rating form and suddenly lost all my revenues.

I hope someone human answer with details soon, but I'm joining the anger from all developers around about how #Google treat devs, take 30% share without problem but certainly do not do support or act as human when killing someone.

His complaints reached his fans and customers, who then made their presence felt. This finally prompted a Google human to give Yatse the details he needed so he could fix his app and get it relisted.

Hi Tolriq,

Thank you for your additional comments.

As previously explained, your promotional images include content that you do not appear to have permission to distribute. For example, images related to films are most likely protected by the various studios that produced and released them. It is reasonable to assume that these would not be made legally available in public domain or via Creative Commons as most studios are extremely protective of their intellectual property. The same could be said of images from various TV series…

This part of Google's response refers to screenshots used in the app's listing. They used to look something like this…

The images used here are only indicative of the app's capabilities. Even if (obviously) unlicensed, the app doesn't promise anything more than control of XBMC content. It doesn't promise access to studios' offerings or otherwise act as a movie/TV show portal. In this context, the movie posters displayed in the screenshots would appear to fall under "fair use." Google's response to Yatse indicates that, even with a human now involved, the Play Store won't tolerate the use of unlicensed images in "promotional" screenshots.

In fact, fair use isn't even discussed. Instead, Google asked Yatse to prove ownership of the disputed artwork before the app could be relisted.

If you are able to prove otherwise, either via direct authorization from a studio representative or the location where you sourced these images (public domain and/or Creative Commons), we could review that information and reconsider the merits of this case.

The motivating factor for this non-consideration is potential litigation, according to the Google Play Team.

This may represent a change from two years ago in that most studios today will file complaints over use of their content unless someone has entered into an agreement with them on some level, and that should not come as a surprise to you.

Even with a direct response, there are still some gray areas the developer is left to address himself.

We are unable to provide specific guidance as to which images may be allowed, but we trust that you will use your best judgment based on what we have mentioned above and in previous communications.

As Yatse points out, this isn't good news for developers.

The answer is very interesting for all Google Play developers :

- Google will remove your application on suspicions and not on real facts.
- No human will check what you upload or say.
- It's nearly impossible to have a real contact and support.
- You need to try to fix problem yourself without details and hope to have it fixed before ban. (Very hard when in fact there's no problem)

Google Play has moved to preemptive takedowns, unprompted by studio complaints. This isn't a good thing. It may protect Google (but only slightly, considering the studios' ongoing antipathy towards the tech company) but it does nothing for developers whose sales it takes a portion of.

In response, Yatse has swapped out the offending artwork for CC-licensed and public domain works. But even that wasn't enough for the Google bots. Those images had to be removed before his app was approved for relisting.

#Yatse is now back on Play Store, without any images until I can figure out what the Google bot does not like in open sources ones.

This understandably limits his options and makes it much harder to convey the app's functionality. Here are the screenshots currently available at Google Play, which show that Yatse (the app) is probably some sort of remote control program and has some color options.

So, based on no complaints from studios or other rights holders, an app comes down. And even with the use of properly-licensed images, it fails to be reinstated. And throughout all of the discussions, fair use isn't mentioned a single time. That's the reality of preemptive IP policing, and it's unlikely to change anytime soon.

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Filed Under: android, apps, copyright, copyright police, google play, xmbc
Companies: google

49 Comments

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Ninja (profile), 27 Mar 2015 @ 4:03am

So Google wants to protect themselves against lawsuits. Simple: all devs should start suing Google when they remo0ve their application without legal basis and proper explanation. And Yatse should sue Google under fair use grounds for the first set of images and for bogus requirements in the second. If devs start seriously suing Google it won't take long before they review their ways. Sure the MAFIAA may sue but they are a few and the devs are a lot.

A crowdfunded approach might help the devs too.
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- Anonymous Coward, 27 Mar 2015 @ 4:27am
  
  Re:
  Good luck finding a lawyer willing to take on that case -- unless you have a lot of money to throw at it, which most app developers don't.
  
  Money makes might and might makes right here in the United States of Disney.
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- John Fenderson (profile), 27 Mar 2015 @ 7:40am
  
  Re:
  One of the primary advantages of using an Android device is that nobody is locked into Google Play. You can sideload apps or use alternative app stores. I would love to see a coalition of app developers form to operate their own app store and avoid Google's bots entirely.
  [ link to this | view in chronology ]
  - Ninja (profile), 27 Mar 2015 @ 9:28am
    
    Re: Re:
    That's all cool and dandy but the average joe won't be aware of these options. Besides Google ominously warn (correctly) that you may compromise your phone depending on which app you install which can and will scare a lot of people. Hopefully if there's enough advertising on alternative stores you can emerge with good, trustful ones.
    
    Still, it's one way to work around the restrictions.
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    - John Fenderson (profile), 27 Mar 2015 @ 10:49am
      
      Re: Re: Re:
      Yes, but a coalition of app developers can actually counter all of those problems in a way that individual developers can't. Marketing can address the visibility issue, Google's malware scare tactics can be countered by implementing the same (or better) safety controls that Google Play has, and so on.
      
      In other words, given that people apparently love this app store stuff, what is needed is something that competes with Google Play. There is no technical or legal reason why it cannot exist. It's just a matter of developers deciding to make it.
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  - Anonymous Coward, 27 Mar 2015 @ 5:24pm
    
    Re: Re:
    "One of the primary advantages of using an Android device is that nobody is locked into Google Play. You can sideload apps or use alternative app stores."
    
    For now. This is very likely to change in the future.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 30 Mar 2015 @ 8:24am
      
      Re: Re: Re:
      No, it's not. It might change with the stock ROMs, but you can (almost) always put an unmangled version of Android such as Cyanogenmod on your device.
      
      I do this as a standard practice anyway, because it gives me three primary benefits: better security, the elimination of all that shovelware, and the elimination of any tracking software.
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- Chris Rhodes (profile), 27 Mar 2015 @ 7:40am
  
  Re:
  Simple: all devs should start suing Google when they remo0ve their application without legal basis and proper explanation.
  Neither you, nor I, nor anyone else has a legal right to publish apps on the Google Play store in the first place, so they can remove apps as they see fit, even in situations that are unfair, short-sighted, done "without legal basis", and without "proper explanation". In short, Google owes you jack shit.
  
  (Is this one of those "Everything I personally disagree with should be illegal!" arguments? They do seem to be all the rage these days . . .)
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  - Ninja (profile), 27 Mar 2015 @ 9:36am
    
    Re: Re:
    I think that once arbitrary decisions hurt somebody financially one can at least question the legality of such moves under anti-trust issues. Besides I'd say there's enough room for using fair use here and on similar cases. Sure Google can reject applications but once they accepted all based on public guidelines then they should not discriminate. Apple is as guilty of it as Google. Except that at least you can install the things form external sources on Android devices.
    
    (Is this one of those "Everything I personally disagree with should be illegal!" arguments? They do seem to be all the rage these days . . .)
    
    I am interpreting it to be a civil matter at least in the fair use front and it should be tested into the courts as means to crub such types of abuse (I may be proved wrong and I'd love to since it would mean due process). So if it's an open platform and anybody can sell there why are they discriminating a few players? My wording may have been poor but don't you agree that there are legal questions to be asked here?
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    - beltorak (profile), 27 Mar 2015 @ 9:47am
      
      Re: Re: Re:
      Unfortunately I agree with Chris. Google is doing the dev a favor, because that's how the deal is structured.
      
      > I think that once arbitrary decisions hurt somebody financially one can at least question the legality of such moves under anti-trust issues.
      
      This is in no way shape or form an anti-trust issue.
      
      The only fix I see* is to start turning this into a contractual relationship. If you are submitting an app to a store and the app generates revenue for you, then you should be entering into a contract with the store provider. Then you would have grounds to sue for breach of contract and possibly loss of revenue.
      
      'Scuse me while I go watch pigs fly and unicorns birth rainbows.
      
      * - and it's not a really good fix either; you would still have to have a lot of money to win the case and make it worthwhile to even file the paperwork.
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      - Atkray (profile), 27 Mar 2015 @ 3:14pm
        
        Re: Re: Re: Re:
        No, they are doing Google a favor, ask anyone with a Windows phone.
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    - Chris Rhodes (profile), 27 Mar 2015 @ 10:40am
      
      Re: Re: Re:
      I think that once arbitrary decisions hurt somebody financially one can at least question the legality of such moves under anti-trust issues.
      "Does not accept all uses of their platform that I personally wish they would accept" is not anti-trust. At all. Like, it's not just not in the same ball park, you aren't in the same state. There are multiple other competitors in the app store space, and Google themselves specifically allows you to side-load any app you want. They aren't a monopoly. If you don't like the app store's terms of service, use a different one.
      Besides I'd say there's enough room for using fair use here and on similar cases.
      There is nothing in the law that says Google has to allow content on its platform merely because that content qualifies as fair use.
      Sure Google can reject applications but once they accepted all based on public guidelines then they should not discriminate.
      If developers had a contract with them that stated they were owed damages should Google change their mind, that's one thing, but they don't. Changing their mind after approving an app is not illegal, or actionable.
      I am interpreting it to be a civil matter at least in the fair use front
      Fair use has to do with whether or not the developer or Google could be sued by the owner of the pictures in question, not whether or not Google must host a particular app.
      So if it's an open platform and anybody can sell there why are they discriminating a few players?
      Discrimination based on content isn't illegal, nor should it be.
      My wording may have been poor but don't you agree that there are legal questions to be asked here?
      No. There are no legal questions here regarding Google's right to not host an app.
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      - JEDIDIAH, 27 Mar 2015 @ 2:38pm
        
        Corporate Fuedalism
        > "Does not accept all uses of their platform that I personally wish they would accept" is not anti-trust.
        
        Actually that's a pretty good example of something that should be covered by the Sherman act. If you aren't free to enter markets, then that's basically Communism. The way that software platforms tend to naturally degrade, you usually end up with markets that only tolerate 1 or 2 of them (3 if you're really lucky).
        
        Every employer and every product should not be it's own little fuedal state.
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        Pragmatic, 30 Mar 2015 @ 2:44am
        
        Re: Corporate Fuedalism
        Feudalism and communism are different things entirely. Communism is state control of All The Things while feudalism means the serfs are subject to their liege lord, whose job it is to protect them but who actually screws them. Literally.
        
        If you aren't free to enter markets, that's protectionism. That's usually a capitalist incumbent thing because competition messes with the ol' profit margin. This is what anti-trust laws are for.
        [ link to this | view in chronology ]
Anonymous Coward, 27 Mar 2015 @ 4:41am

This is why false accusations of infringement should be punished as much as infringement itself: it causes companies and the public to remove things they have the full right to publish. In fact, false accusations should be considered fraud (and hence be punished even more than infringement).

You see this on youtube too; people editing out sound from their videos, just for fear of getting hit by contentid, even if said audio would fall under fair use.
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- Anonymous Coward, 27 Mar 2015 @ 4:56am
  
  Re:
  Copyright Libel
  
  I like the sound of that :-)
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Amby, 27 Mar 2015 @ 4:41am

lawsuits?
No I don't think that would work. Google has their terms set and they have reserved the right to change those terms at will. And you as the user of their service have forfeit any rights to say no.

The only reasonable thing would be for developers and other users of Youtube and Google services to abandon ship and self host any media they have to offer.
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Anonymous Coward, 27 Mar 2015 @ 5:11am

Don't need Google Play
The nice thing about Android is you aren't forced to use a single app store. There are a number of alternatives including F-Droid.org which host free and open source apps only. The selection is comparatively small, but most FOSS apps require minimal permissions and are free of advertising and user tracking prevalent in most "free" apps on Google Play.
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- Frank Tanker, 27 Mar 2015 @ 6:20am
  
  Re: Don't need Google Play
  The real problem there is that The Average Majority Target Demographic User doesn't browse F-Droid.org, and doesn't have a daily feed suggesting them interesting apps they might not have heard of.
  
  The average user is only aware of what they see on the front page of the Google Play Store, the "more like" suggestions, and whatever they happen to be searching about. When your app's marketing strategy relies on showing them a quality of life improvement that they didn't know they wanted, you're virtually guaranteed almost no one will be specifically searching for an app like yours. And if there happens to be a competing solution that *does* have pictures in the recommendations and front pages, well...
  [ link to this | view in chronology ]
RD, 27 Mar 2015 @ 5:24am

So, Google will cease showing any images in search now, right?
So...all Google searches from now on will not contain any images that Google doesn't have explicit license for, right? After all, Google is a business, and those searches generate revenue and "It doesn't promise access to studios' offerings or otherwise act as a movie/TV show portal" correct? Or are laws only for little people?
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- jupiterkansas (profile), 27 Mar 2015 @ 8:34am
  
  Re: So, Google will cease showing any images in search now, right?
  Well they already went to court over that and one, but a difference is that Google doesn't host those images while the app does. Not that I agree with any of this.
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Anonymous Coward, 27 Mar 2015 @ 5:57am

Permission society is here
It may not be fully ramped up yet, but make no mistake, the Permission Society is upon us. Don't you dare do anything without proper permission.
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- Anonymous Coward, 27 Mar 2015 @ 6:19am
  
  Re: Permission society is here
  On behalf of our clients, we must instruct you to cease and desist your use of the words 'permission', 'society', 'anything', 'proper', 'fully', and any other word that has been used in a movie produced by members of the MPAA, until such time you have acquired explicit and unambiguous consent to said use.
  [ link to this | view in chronology ]
Anonymous Coward, 27 Mar 2015 @ 6:03am

Google used to be the shit, now it is. All I can say is glad I don't use them.
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Anonymous Coward, 27 Mar 2015 @ 6:16am

Simply don't support walled gardens!
I'm involved in several open source projects and I would never write an app for a walled garden. Why should I become Apple's or Googles's slave? Don't developers read terms and conditions? I had some lectures in law while doing my engineering degree and it's very helpful to avoid pitfalls.
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- Anonymous Coward, 27 Mar 2015 @ 7:39am
  
  Re: Simply don't support walled gardens!
  Sure, accessing an app outside the walled garden is nice - but if you're trying to make money on it (which this developer is, through in-app upgrades), having it *also* in the walled garden is the only reasonable way to make sure it's used by many, and an income is available.
  
  Can you demonstrate profitable commonly-used Android apps that are not available in either Google Play Store or Amazon App Store?
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  - Anonymous Coward, 27 Mar 2015 @ 9:03am
    
    Re: Re: Simply don't support walled gardens!
    FTA:
    That's the reality of preemptive IP policing, and it's unlikely to change anytime soon.
    That's the reality of walled gardens.
    
    From parent poster:
    Can you demonstrate profitable commonly-used Android apps that are not available in either Google Play Store or Amazon App Store?
    No, because although the garden is not an absolute requirement, it is pushed so hard that far too few people even understand that leaving the walled garden could be good for them under any circumstance. The prevailing mindset is that you look in the garden, if you don't find it, it's probably not worth finding, so stop.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 27 Mar 2015 @ 9:19am
      
      Re: Re: Re: Simply don't support walled gardens!
      That, and the scare tactics that are used to keep people in the prison -- err, I mean Garden. You know, the nonsense that if you get your apps anywhere else then your device will melt from all the malware.
      [ link to this | view in chronology ]
Anonymous Coward, 27 Mar 2015 @ 6:24am

Google uses fair use all the time ,
do a image search on google
google does not own those millions of images in a search result.
There needs to be a test case maybe,
CAN a app, show images of tv programs,images from films,
eg a program tv guide app.
Maybe no app developer has the money to go to court,
its very likely these images would be legal under fair use doctrine.
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Anonymous Coward, 27 Mar 2015 @ 6:34am

This guy was a dolt for using images he didn't have the rights to. Darwin strikes again.
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- That One Guy (profile), 27 Mar 2015 @ 7:27am
  
  Re:
  And when he swapped them out for images he didn't need the rights to to use and still got slammed? Still his fault right? /s
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Anonymous Coward, 27 Mar 2015 @ 7:22am

Copyright is simultaneously a monopoly and censorship. Why do we still allow it?
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- That One Guy (profile), 27 Mar 2015 @ 7:28am
  
  Re:
  Because it's one of the best laws money can and has bought, and politicians know that keeping it around allows them to get a nice bonus payday anytime it starts looking like something might actually enter the public domain in the US.
  [ link to this | view in chronology ]
- Anonymous Coward, 27 Mar 2015 @ 6:30pm
  
  Re:
  Abolish copyright.
  [ link to this | view in chronology ]
- Anonymous Coward, 29 Mar 2015 @ 9:54am
  
  Re:
  Copyright is in fact a good thing. It allows a creator from megacorp to individual to control it's work. HOWEVER copyright law is so convoluted in the US and so onerous. It is just like the tax code twisted, ever expanding, ever changing, and filled with so many loop holes, carve outs, and legalize that your simply rolling the dice on whether some great powerful hammer will fall on you each and every day.
  
  If you want a solution. Make copyright law, tax law, and any other oversized body of law follow Unix principles. Make things simple, easy to read so you know how things work, robust, and use text streams i.e. use common language over cryptic arcane legalize.
  [ link to this | view in chronology ]
Anonymous Coward, 27 Mar 2015 @ 7:39am

Google Faceless Robot - Something Eventually Will Break
I went to set my mother up with a Google gmail account and the new account creation portion was broken. After looking all over the site where to report it and get tech assistance I finally Googled for Google's telephone help line. I called the only number I found and was informed does not provide assistance nor have any means for users to report any problems.

I used and relied on Google for everything and was always checking for new services and never had any technical problem. Nevertheless upon the realization Google is a faceless robot and if my email access were ever broken in a way automated password recovery wasn't sufficient or any host of other problems like calendar breaking. I panicked and immediately began migrating each and every critical service I relied on Google for to alternatives that either had support or were self administrated and ideally open-source software. I am now completely Google free. I have proactively solved the problem of something eventually will go wrong I would just be SOL.
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- jupiterkansas (profile), 27 Mar 2015 @ 8:36am
  
  Re: Google Faceless Robot - Something Eventually Will Break
  This has always been Google's Achilles' heel from the start. Apparently it hasn't harmed their business much.
  [ link to this | view in chronology ]
  - Anonymous Coward, 27 Mar 2015 @ 6:29pm
    
    Re: Re: Google Faceless Robot - Something Eventually Will Break
    That's why their services are cheap. They don't provide support.
    [ link to this | view in chronology ]
Kode (profile), 27 Mar 2015 @ 7:51am

I can't tell from the description but the app isn't necessarily even getting the images itself if it's just pulling the images as stored by Kodi (formerly XBMC), and Kodi gets its images from user submitted collections such as https://fanart.tv https://www.themoviedb.org/ or http://thetvdb.com/ which are all operating under a presumption of fair use as their entire purpose for being is to provide fans with the best possible media experience.

In addition fanart.tv gets incorrectly filed "Notice of DMCA removal from Google Search" notices every few days, every single one of which claims the url that has been indicated is hosting the "movie", which is abssolutely not the case, it's clearly an automated system that I have to spend hours every month sending counter claims for.
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- Anonymous Coward, 27 Mar 2015 @ 7:59am
  
  Re:
  Indeed - as a user of Kodi, and a longtime user of XBMC, whenever I add a movie to my NAS (ripped from DVDs I own...) it automatically downloads the artwork from one of prescribed sites.
  
  If anything is illegal, it might be the site hosting the artwork. I could see how involuntary infringement might be cause for a takedown, but in this case I own the damn movie, I have the damn cover artwork on my shelf, I just want a copy of it on my screen now, and if I can't download it, I'm going to be forced to manually scan them in (just like I manually rip my movies rather than downloading copies).
  
  It's sad that an app that is two times removed (gets content from Kodi, which gets content from themoviedb.org) is also suffering from this "everyone must get our permission!" bullshit.
  [ link to this | view in chronology ]
  - Kode (profile), 27 Mar 2015 @ 8:10am
    
    Re: Re:
    I think illegal is a strong word, none of those sites are trying to sell copyrighted material all they are trying to do is provide a service for the end user and if anything provide free promotion for the movies / tv shows / music artists they provide artwork for.
    
    Certainly with fanart.tv (as the admin / developer of fanart.tv, that's the only site I can really talk about) if you exclude posters and wallpapers (which were only added by popular demand) the other artwork types by and large take a lot of work to create and would only be done by dedicated fans.
    
    Kodi currently hits our API about 50million times a month
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    - Anonymous Coward, 27 Mar 2015 @ 9:59am
      
      Re: Re: Re:
      But don't you get it dude ? You used Corel Painter to paint that ? Corel now OWNS that s**t !
      The above was meant as a joke, but I'm seriously concerned that this is effectively where we're headed.
      
      On a more serious note unlike the GPL and CC SA & NC where at least a derivative work may have some use, with traditional copyright all derivative works are useless the moment they're created.
      
      The day when you'll have to get permission to criticize a work under the threat of prison might be upon us sooner than expected.
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Anonymous Coward, 27 Mar 2015 @ 7:53am

what Google really wants is for someone to stick a real serious FUCK into it! it must be close on the biggest company in existence and yet it still acts like a scared kid over copyright issues even when there are none. the most disgusting aspect of it being you can rarely, if ever, talk to a person and when you can, that person is as thick as shit and refuses to even consider that what haw been taken as infringing, isn't doing so in the slightest. Google needs to shake itself and stop acting like nothing other than one of it's poorly programed robots, returning to being human. it's not like it cant afford to employ anyone, is it?
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Anonymous Coward, 27 Mar 2015 @ 9:51am

So Google had enough of the copyright bullshit and is cleverly bringing more people into the fight.
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Zonker, 27 Mar 2015 @ 11:15am

Doesn't the act of filtering content based on potentially infringing images cause Google to lose their safe harbor protection under the DMCA? If Google now filters for some "potentially infringing" images without any DMCA take down notice being filed, then won't the MPAA/RIAA start tearing apart the claim that they can't be internet police filtering everything because they have done so here?

Why would Google give in now and let the MPAA/RIAA turn them into the internet police when they have fought against this for so long? Seriously disappointed. Especially when their internet policing crosses the line blocking Creative Commons and public domain images as well. Just what the MPAA/RIAA ordered.

I miss the old Google.
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Rekrul, 27 Mar 2015 @ 4:01pm

What the world needs is a lawsuit bot that will fire off a lawsuit to Google every time some copyright company files a bogus takedown notice.
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Sheogorath (profile), 28 Mar 2015 @ 5:07pm

It may protect Google [...]
On the contrary, it could wind up biting them in the butt. Example: Google: "How are we supposed to know what's infringing before you tell us?"
WB: "You clearly knew about those infringing images in that app before we ever got notice of them from our lawyers. Sort it out!
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Richard Stallman, 30 Mar 2015 @ 12:20am

Use of term Intellectual Property
Using the term "intellectual property" spreads confusion by lumping together a dozen or so unrelated laws. That term encourages people to generalize about them all, which is always a mistake since they
diverge on every practical aspect.

For the sake of clear understanding of these laws, please avoid using
a single term to refer to them all at once. See
http://gnu.org/philosophy/not-ipr.html.
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- Pragmatic, 30 Mar 2015 @ 6:10am
  
  Re: Use of term Intellectual Property
  The trouble is, copyright, patent, and trademark trolls have been doing that for so long they've got us doing it, too. "Imaginary property" is probably a better term.
  
  Just trying to get them to acknowledge it's not property at all is a massive uphill struggle. Indeed, every troll who comes here to make chicken noises at Mike insists that copyright, patents, and trademarks are all property despite reams and reams of case law that proves it is not.
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