DMCA: Skipping Straight to the Hanging
Legend has it that in Judge Roy Bean‘s courtroom everyone was entitled to a trial before they were hung. Under the Digital Millennium Copyright Act (DMCA), Congress has dispensed entirely with the matter of a trial and moved straight to the hanging. And the rate of digital hangings in increasing at a prodigious rate.
The DMCA Title II allows copyright holders or their agents to demand that web content that infringes on their copyrights be removed, so called “takedown notices.” In the case of content hosts (like your internet service provider) and search engines (like Google or Bing), they can avoid liability by removing the content or removing the link to the content, a so-called “safe harbor.” There are statutory procedures for counter demands that content be restored, as well. And the form of all of these notices is also mandated by statute.
But this is the digital age, and before you could say “Microsoft” a whole crowd of digital rent-a-cops had sprung up, in the business of hiring themselves out to find and slap down copyright infringement. The copyright rent-a-cops wrote software to troll the Intertubes, looking for suspicious activity, and completely automated the process of sending takedown notices. The results were predictable.
Google tracks the number of takedown notices it receives each week. Here’s the chart as of October 9, 2012:
Since mid-year, there has been an explosion in the number of takedown notices. Google alone has had 6.9 million in the past month. And this explosion in copyright infringement claims has occurred at a time when even the RIAA admits illegal copying is declining.
Now the practical effect of this is that it is impossible for Google or anyone else to evaluate the merits of a takedown notice. The burden shifts to the target of the notice, who must make a counter demand. So if one of these attack dogs sends Google a takedown notice on your web site, claiming your content infringes on their copyright, whether or not the claim is true, Google, to protect itself, may well remove your site from its search results. You can make your own demand back to Google, but Google, to stay in the “safe harbor,” has to wait ten days to see if the internet rent-a-cops do anything in response before it can return your site to good standing. If the copyright claimant sends a takedown notice to your ISP, you’re not only out of the search engines; your web site doesn’t have a digital existence.
That’s what WC meant by skipping from the accusation to the hanging, without troubling with a trial along the way.
Now all of that would be bad enough if the copyright rent-a-cops were careful about their takedown demands but, apparently, they get paid for the number of tickets issued, not the number of people caught speeding. Their algorithms for detecting copyright violations are laughably bad.
Let’s do a case study. Let’s pick, say, Microsoft’s impending Windows 8 operating system. There are beta versions out there, distributed by WC’s good friends in Redmond. Microsoft hired one of these internet bullies, called Marketly, LLC (and owned by a former MS employee) to make certain that there weren’t any unauthorized copies of Windows 8 Out There. Marketly’s idiot algorithms decided there were. It sent 5 million takedown notices to Google in one year. Alleged infringers included AMC Theatres, BBC, Buzzfeed, CNN, HuffPo, TechCrunch, RealClearPolitics, Rotten Tomatoes, ScienceDirect, Washington Post, Wikipedia and even the U.S. Government. Marketly even demanded on several occasions that Google censor Microsoft’s own search engine, Bing. Of course, none of those sites were using or running Windows 8; Marketly’s search algorithm was a piece of crap and reported millions of bogus positives.
Because Google’s own mechanisms for dealing with takedown notices are themselves highly automated, many of these completely innocent sites were kicked out of Google without anyone, you know, thinking “I wonder if the BBC is really sharing illegal copies of Windows 8?”
What’s worse, Google’s processing rules are mostly confidential, so we don’t even know what the threshold for enforcement action is. One notice? Ten? Who knows. Google doesn’t care. Takedown notices to Google on Google-owned sites like YouTube get special, secret treatment.
But what a great way to derail your competition, huh? Flood Google with false claims of copyright infringement and they’re kicked out of the world’s biggest search engine. If you get caught, just blame faulty programming.
The “guilty until proven innocent” approach, vulture capitalism and sloppy programming have created a toxic, dangerous situation on the Intertubes. It’s too much to hope that our do-nothing Congress would understand, let alone act, on the problem. But it’s all we’ve got.