If Google Shouldn't Apply EU's 'Right To Be Forgotten' Everywhere, Why Should It Apply US DMCA Takedowns Globally?
from the make-up-your-mind dept
Last week, Techdirt wrote about Google's refusal to comply with France's order to apply the "right to be forgotten" -- actually, a right to be removed from search results -- globally. Perhaps because the issue seems easy to understand, many have offered their opinions on the rights and wrongs of Google's move, both for and against. Writing in The Guardian, Julia Powles has provided a good summary of the two main positions. First, without the "right to be forgotten," the internet would become a "database of ruin":
Some meaningful rights to delist old, irrelevant or incorrect information from monolithic databases are important, in order to give us a small, imperfect measure of privacy and dignity. They offer a minor speed bump on asymmetric routes of power, like the one that says you have no rights or say over Google’s presentation of search results.
The opposing camp, which includes Jonathan Zittrain, says we must not give in to this natural desire to remove links in this way, because doing so would create a "Swiss cheese internet":
Even if we might see some merit in Europe’s data laws, Zittrain is not at all happy about them being used to carve holes out of Google search. To counter the database of ruin argument, he says we are creating a “swiss cheese internet”.
Both of these positions, and countless variations on them, have been expounded many times over the last few days, and Techdirt readers will doubtless have their own views. But Powles goes on to make a new and interesting point that connects the battle over the "right to be forgotten" with the copyright industry's war on sharing:
The nub of Zittrain’s concern is that the practice of shaping what stays and what goes from the database is hopelessly individualistic. By allowing the delisting of information that is incorrect, outdated or harmful for individuals, who knows what else will follow. It sets us on a path, Zittrain claims, where the internet becomes the lowest common denominator result of what all the world’s countries and courts are prepared to leave behind.Google’s argument that "no one country should have the authority to control what content someone in a second country can access" is appealing, but it is also misleading. Currently, US copyright law is relied on to remove content from Google’s global index, no matter where an alleged incident occurs, and at a rate at least three orders of magnitude greater than partial delistings under data privacy laws. The respective rates of approval are 97% for 345 million copyright requests and 41% for one-quarter million privacy requests, in a comparative period.
Google's behavior here suggests that it is more important to enforce copyright takedowns globally than to do the same to protect personal privacy. That means the issue of "the right to be forgotten" is even larger than it seems at first sight. As Powles rightly notes:
The complex challenges involved in global enforcement of laws demand us to ask what kind of society we want to live in. Are trademark and copyright law really that black and white? Is it appropriate for global brands to block sites on the other side of the world, which are neither ambiguous in their origin or misleading to consumers, and may engender creativity and meaning in their own right? Can we balance, with equal force, human rights as much as economic rights?
Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
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: copyright, dmca, eu, europe, free speech, global, jurisdictions, right to be forgotten, takedowns, world
Companies: google
Reader Comments
Subscribe: RSS
View by: Time | Thread
Currently not. The dominating players (corporations) are too entrenched in the system/power to allow such balance.
[ link to this | view in chronology ]
Re:
The balance will be very lopsided, however.
[ link to this | view in chronology ]
Look how Canada tried to apply it's laws GLOBALLY and jurisdiction be damned...
Websites should start telling these guys to fuck off...
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
One is a law sponsored by a powerful industry lobby, the other is politicians pandering to the people. The fist is therefore backed by the threat of endless lawsuits and enquiries, the latter results in the minor pin-pricks when individuals can afford to go to law.
[ link to this | view in chronology ]
Re:
The people?
lol
No, it is pandering to their base, no "the people". These are two distinct and separate groups.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
@ Richard: The fact that a part of the Sherlock Holmes canon is still under (unreasonably long) copyright in the US didn't stop me downloading the whole lot here in the UK.
Seegras said: There's no "takedown upon notice" in there.
That wasn't my point and you know it.
[ link to this | view in chronology ]
Re: Re: Re:
But, under the DMCA, it could have done.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
You are either stating that google is an index'er only and doesn't actually host data to restrict you finding it by other means which then allows a 'right of privacy' as well since google is ONLY delisting their index and not the actual content.
or you allow for the fact that applying a USA legislative instrument worldwide such as the DMCA and not a European legislative instrument is a hypocritical stance of major proportions.
[ link to this | view in chronology ]
Re:
Under (only) the Berne convention the procedure for delisting infringing material is much more burdensome on rightsholders than that provided by the DMCA. In short it requires them to prove their case in front of some kind of independent arbiter (eg a judge). Much material is delisted under the DMCA which would remain available if the rightsholders had to jump through the hoops that are required under normal legal procedures.
Also US copyright law is more restrictive than the minimum requirements of the Berne convention so there is much material - eg the later Sherlock Holmes stories - that are public domain in most of the world but not in the USA.
This situation is set to get worse over time because of the peculiar history of US copyright law. Initially it was less draconian than the Berne convention - but in the transition some crazy special rules were invented which go way beyond what the Berne convention requires.
So you are wrong and Glyn does have a point here.
[ link to this | view in chronology ]
Re:
(1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death.
With movies it's either publication or production +50 years:
(2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making.
For photographs it's production+25 years.
(4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work.
There's no "takedown upon notice" in there. Instead you have to have a judge order it. And it doesn't cover library catalogs or other "search engines" that only tell you where a work can be found.
[ link to this | view in chronology ]
Re:
Hate burst your little shill bubble there, Sheogorath, but the DMCA isn't part of The Berne Convention.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Why does Google really care?
The argument against the deletions is one of completeness and "all or nothing". But that is founded on the presumption that Google's database is as complete and perfect as can be at this time: which it isn't. There are undoubtedly huge areas that aren't covered, huge databases of primary source data not crawled, and, conversely, huge databases of rubbish data that are scanned and considered to be fact. So, presuming a reasonable set of controls on issuing orders to remove such data, removing a comparatively small number of links won't automatically make the database any better or worse than it currently is.
So could it be that it's really the personal data, rather than copyrighted, that Google really cares about? And why would that be the case?
Maybe it's because their business is targeted advertising?
[ link to this | view in chronology ]
Re: Why does Google really care?
Switch to the right to be forgotten. This is another artificially created "right" since there is no natural right to be forgotten. What I know about someone is known to me and I can communicate it. No one will agree on barring a human being from speaking the truth, even an ugly truth. If you look at what is allowed to be delisted from search engines you see that news agencies are delistable too. So the right to be forgotten is a truth hiding mechanism. One can't legally block the BBC from publishing a story about a person but that person can legally fool people into believing that that story doesn't exist. In essence the right to be forgotten is a work-around to reduce journalistic freedoms without touching news agencies but rather the delivery mechanism.
[ link to this | view in chronology ]
Re: Re: Why does Google really care?
Go visit YouTube, Jamendo, Podiobooks, Flickr etc., as the negate your arguments, including artist compensation. Th only people who benefit from strong copyright are the studios, labels and publishers, and they are notorious for compensating artists badly, unless the artists have the popularity to be able to demand a decent payment up-front.
[ link to this | view in chronology ]
Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Why does Google really care?
So quit dodging a response to a point you made.
Also DRM has nothing to do with whether or not a DMCA notice is issued, and one of the problems that the artists on those platforms face is bog corporation using DMCA notices to take down their work because they confuse it with their own works, or object to fair use.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Why does Google really care?
I like how you defenestrate the creative output of the 'artists' 'sharing' their work.
Some of these youtube people aren't even making $10 million/year.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Why does Google really care?
Actually it was you comment that first contained those words.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Why does Google really care?
Well there is if a country, or group of countries, decides to create a law that says there is.
And what on earth is a 'natural' right? Certainly, copyright cannot claim to be a 'natural' right.
I'm not agreeing or disagreeing with the either position, but I fully agree with the point made in the Grauniad article that suggests that, if they agree to do it for DMCA, they can do it for RTBF.
[ link to this | view in chronology ]
Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Why does Google really care?
Well they have done and do.
[ link to this | view in chronology ]
Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Why does Google really care?
The last sentence is a non-sequitur. Your argument maybe justifies the existence of copyright, with a relatively short term. It does not justify the dmca mechanism which allows rightsholders to get things taken down with little evidence and no risk to themselves if they get it wrong. This mechanism only exists in one country (the US) and yet it affects everyone in the world.
Now I don't particularly like the "right to be forgotten" but it can be used to hide lies and half truths as well as the truth and arguably is useful to ordinary people caught up in newsworthy situations for reasons outside their control so I think it does have more merit relative to the DMCA than you give it credit for.
[ link to this | view in chronology ]
Re: Re: Re: Why does Google really care?
[ link to this | view in chronology ]
Re: Re: Re: Re: Why does Google really care?
Even if there was a clear distinction between works of art and free speech (which here isn't) it is still a non-sequitur to say that the arguments for copyright justify the DMCA.
However the right to be forgotten tries to hide those potential truths, half truths and lies which makes them a tool for the perpetuation of a false narrative.
Ever heard of the Church of Scientology? It is well known for using the DMCA and other copyright claims to suppress criticism.
[ link to this | view in chronology ]
Re: Re: Why does Google really care?
Do you have to learn how to be that hypocritical? or does it come natural?
[ link to this | view in chronology ]
Re: Re: Why does Google really care?
And when that story is false and should be stricken because BBC didn't bother to properly validate the information it got from its sources? What then? The libelous material should remain up for all time and treated as if it's a true accounting? No. Incorrect material should always be removed and replaced with the correct material where applicable.
[ link to this | view in chronology ]
Free speech
The EU 'right to be forgotten' is really only an attempt to grant convicted criminals, celebrities and politicians a delete button against information held by third parties.
And this is categorically wrong.
[ link to this | view in chronology ]
Re: Free speech
[ link to this | view in chronology ]
Re: Free speech
Source : http://www.theguardian.com/technology/2015/jul/14/google-accidentally-reveals-right-to-be-forgotten- requests
[ link to this | view in chronology ]
Re: Re: Free speech
[ link to this | view in chronology ]
What about Hitler?
[ link to this | view in chronology ]
Re: What about Hitler?
Historically important.
[ link to this | view in chronology ]
Re: Re: What about Hitler?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
To be forgotten, talk to the hosting website of the information
[ link to this | view in chronology ]
Because Google is actually based in the US.
Plus, the DMCA provisions, for all their flaws, represent a better compromise than the EU's right to be forgotten laws. The EU doesn't even want Google to tell a site when a search result gets removed under RTBF. But under the DMCA, the site not only gets notified by Google, they can send a counter-notification to get it back up.
Plus the US has one of the better fair use laws, meaning less material will be taken down than if they used most other countries' laws.
Plus, copyright notices (assuming they are valid) represent material that the site has no right to show in the first place. Under RTBF, the site is showing material which they had every right to publish.
Plus RTBF is dumb. There is no "right" to be forgotten. There can't be. My right to remember overrides it.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re: simple
[ link to this | view in chronology ]
Re:
There is a reason why offences are/can be expunged from your rap sheet after a certain time (depending on how severe that was).
For the same reason people may feel entitled to have certain content removed from the web. If you really wanna dismiss RTBF entirely, you have to dismiss expunging rap sheets first.
(keep in mind that rap sheets are for the somewhat significant things. Real life does provide you a host of ways to screw up, most of which won't show up on any rap sheet.)
[ link to this | view in chronology ]
Re:
Google also has operations based in other countries.
[ link to this | view in chronology ]
Parent-Subsidiary Control
The converse is immediately false. Google France has (presumably) no such ability to control Google proper, beyond friendly (i.e. not at all authoritative) suggestions. Thus, with respect to RTBF requests, there is no corporate jurisdiction which a French court could use to turn its legal jurisdiction over Google France into effective jurisdiction over Google proper.
Google might could skirt DMCA requests in other countries by removing the control. I.e. by freeing its subsidiaries to act independently and without parental oversight, Google proper would then be powerless to enforce any US-ordered actions on them, DMCA or otherwise. But this would fragment their platform and probably is contrary to the performance of a well-tuned search engine. Also, notwithstanding a lack of notice-and-takedown (or any secondary liability provisions) in Berne or TRIPS, most countries (including the EU) have come to more or less similar conclusions as the US, and Google would still be bound to DMCA-like obligations in those territories via local, not US, law.
[ link to this | view in chronology ]
Re: Parent-Subsidiary Control
Anyway, if the US wants to force DMCA on us, let’s force RTBF on them. RTBF doesn’t apply to politicians, public figures or criminals anyway, so there’s no risk, and in contrast to DMCA, it’s actually useful for the people.
[ link to this | view in chronology ]
Re: Re: Parent-Subsidiary Control
"if the US wants to force DMCA on us"
The issue is not the US forcing anything on you. The issue is the US forcing something on a US company, and that US company then forcing that thing onto its subsidiaries, including those over in Europe. If a company were wholly located within the EU, with no American parent, the DMCA couldn't touch 'em. Much like if a company were wholly located within the US, with no European parent (e.g. Google), the RTBF couldn't touch 'em.
If you guys don't like having the DMCA shoved down your throats (and frankly I don't blame you, it's an awful law), well great: your recourse is to disband Google's European subsidiaries. This is certainly within Europe's power. As is RTBF'ing those subsidiaries. Forcing Google US to do anything, is not.
[ link to this | view in chronology ]
The EU law is attempting to apply to non-EU entities, operating outside the EU.
[ link to this | view in chronology ]
Re:
Google is an international conglomeration. Parts of it are located in the US, parts are located elsewhere.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Can't understand you
Fyi, that's one of your verbs. pretty bad.
also, Paragraphs can be wonderful.
one more thing, avoid jargon.
[ link to this | view in chronology ]
point two is: companies that have the money will get what they want, average people can fuck themselves.
[ link to this | view in chronology ]
Public Domain Vs DMCA
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Can't see the contradiction here.
[ link to this | view in chronology ]
What???
Thank-you,
[ link to this | view in chronology ]
Re: What???
[ link to this | view in chronology ]
Re: What???
[ link to this | view in chronology ]