Google to start devaluing sites

[SoylentGreen]

It's a good idea in principle.  However, it's bound to be abused.

Somebody could get your site de-listed, and it would take you at least two weeks, possibly a month or more to get it back up.
Just look at how DMCA's have been used suppress documents on ELI.  I'm sure that Matt wouldn't like ELI to be de-listed by a troll for even a short length of time.
Imagine if you're running an e-commerce operation?

"Copyright" is beginning to be used in ways contrary to how it's intended.
How long before the "Linda Ellis's" start sending phony DMCA's to google in order to harass the "Aprils"?

It would be much better if the search engines required some proof before taking action, or at least gave the accused 7 business days to respond.
It's a terrible idea if no proof is required before the damage is done, in my opinion.
Additionally, most never register their content even if it's theirs, and therefore have no real proof.

Here's the link from 2007, btw.  Some of the info is probably out of date, however.
http://www.plagiarismtoday.com/2007/09/20/the-dmca-on-7-search-engines/

Here's an even earlier one from 2005;
http://www.plagiarismtoday.com/2005/09/28/the-dmca-and-google/

S.G.

[Moe Hacken]

I agree that it's a pain to be wrongfully accused and have Google remove one's site from result pages. The onus is on the accused to take action. However, the action is really not that difficult:

What To Do If Google Removes Your Content Because of A Bogus DMCA Complaint

The US congress made it very easy to ask search engines (and other Online Service Providers) to remove allegedly infringing content. However, congress also created a simple way for you to fight back.

All you have to do is send a counter-notification to the company that removed the content, usually Google. The Counter-Notification is just a letter that informs Google that the copyright infringement allegations are false and demands that the removed content be restored. A counter-notification is often called a "put-back notice."

After you send your counter-notification, Google will notify the original party who complained against you. Then Google will wait no more than 14 days to restore your content, UNLESS the original complainer files a lawsuit against you. If the original complainer (the third party who sent the take-down notice) files a lawsuit against you, then Google will refuse to restore the content. If the original complainer doesn't file a lawsuit, then Google will restore your content within 14 days.

So basically, if your site was removed because of a DMCA Complaint, the ball is in your court now. You've got to inform Google that it made a mistake by filing a counter-notification. It will restore your site, unless you get sued.

http://www.seomoz.org/blog/what-to-do-when-google-bans-your-site-because-of-a-bogus-dmca-takedown-notice

The search engines (or ISPs) require some proof, but do not make decisions about the legitimacy of the claim. The claim has to at least make sense, e.g. you can provide a URL that you claim is your intellectual property and another URL that you claim is an infringement of your intellectual property, and they can be visited to verify that at least the URLs do exist and that the infringement could exist.

I don't know if it would be better for the ISPs/SEs to require a higher standard of proof than an affidavit. It appears to me they prefer to stay out of the fray and let people duke it out in court.

S.G., you do make a good point about the impact it could have on an online business. If your site is down for a couple of weeks because of a bogus takedown claim, that's going to be a slim month for sales. I suppose one has the option of taking the accuser to court for filing a false DMCA removal request and sue for lost revenue and legal fees, but that's a huge hassle.

[SoylentGreen]

Great information, Moe.  Thanks.
I must admit that it does sound good on paper.

But, I think that ELI must have received a couple dozen of these, aimed at Scribd documents.
None of which were legitimate.  That must add up to at least two years of combined downtime on the content.  Pretty staggering. 

Hardly anyone is properly registering their content as it relates to use on the Internet.
So, I'm personally skeptical of the system as it now stands.

S.G.

[Robert Krausankas (BuddhaPi)]

The search engines (or ISPs) require some proof, but do not make decisions about the legitimacy of the claim. The claim has to at least make sense, e.g. you can provide a URL that you claim is your intellectual property and another URL that you claim is an infringement of your intellectual property, and they can be visited to verify that at least the URLs do exist and that the infringement could exist.

I don't know if it would be better for the ISPs/SEs to require a higher standard of proof than an affidavit. It appears to me they prefer to stay out of the fray and let people duke it out in court.

S.G., you do make a good point about the impact it could have on an online business. If your site is down for a couple of weeks because of a bogus takedown claim, that's going to be a slim month for sales. I suppose one has the option of taking the accuser to court for filing a false DMCA removal request and sue for lost revenue and legal fees, but that's a huge hassle.

I think you are incorrect on your first statement here. ISP's do not require any "proof" all that is required is the take down notice. It is not the ISP's job to determine if there is evidence, proof, or if in fact there was an infringement. Their only requirement is to take down the questionable content, notify the supposed infringer of the take down and notify the complaintant that the infringer was notified. Doing this satisfies the safe harbor provisions.

Now the ISP does have the option to ignore the request, but if they do and the complaint makes it to court, the ISP could also be held accountable for the infringement. I don't know of any ISP's that are going to go out of their way and spend their time looking to see if a claim is legitimate, I know as a hosting provider myself I wouldn't. It's simply not my job, and I'm certainly not in the position to police every one of my hosting accounts.. I get a takedown notice, the content comes down, plain and simple. If someone were to come after me as their hosting provider for damages, they would never win as I only followed the guidelines set out in the law.

Now Go-Daddy is a different beast, they just don't remove the content, they kill the entire hosting account, which in my view is completely over the top, but I think they have that clearly stated in their TOS.

I also think the biggest issue with getting "delisted" within google, would be proving damages, as Moe state it would be a huge hassle, ands you'd have to sue for attorney fees and damages" ie lost income..how many people could actually prove damages?? just because your numbers may be way off isn't going to be proof enough. You'd have to be super anal, like myself to really have a chance at proving this. for example I get at least 4 calls per week from potential clients that find me thur google, I ask every single caller how they found me, and it gets noted in their file, which is created while I'm talking with them that first time. I think it would be a good bet that if I got de-listed from a bogus complaint from a competitor, and I sued them I might win the damages...."Might" and "IF" can be to scary words however..

[SoylentGreen]

Good discussion.

If I recall correctly there's a DMCA lawsuit court precedent (if anyone's interested, I'll provide a link).
It's considered as a landmark case and it's kind of the de-facto standard of what to expect from such a case at this time.
The finding was that the plaintiff (a victim of a false DMCA takedown), was entitled to have their content re-instated, and they collected all attorney's fees.
No other damages were awarded.

I agree with BuddhaPi that lawsuits can be a big pain, risky, and something like this would be difficult to prove.
However, modern e-commerce systems collect and process a lot of data. A smart (and angry person) might be able to leverage this.
I think that a strong case might include traffic statistics from before and after a de-listing, tied into sales/profits.
In theory, it should be easy to show how many impressions and completed transactions arrived from google prior to a DMCA takedown, and a comparison could be made to the conditions after the DMCA takedown.
It's worth mentioning that many lawyers and judges might have a difficult time grasping such concepts.  So, it would be an uphill battle, as BuddhaPi rightly points out.

Filing a successful lawsuit on the basis of this may be out of the question for individuals or small businesses.
However, large companies can and do file all the time.  Imagine that an important corporate site was de-listed on the day of a major product launch?

All this will be interesting to watch, as people and organizations attempt to apply copyright as part of strategic business plans.

S.G.

[Greg Troy (KeepFighting)]

SG, I would be interested in reading the precedent and would very much appreciate you posting the link. While I do not know enough yet to feel I can contribute meaningfully to the current discussion I do read everything that's posted and like to check out court cases, precedents and the like when cited.

Good discussion.

If I recall correctly there's a DMCA lawsuit court precedent (if anyone's interested, I'll provide a link).
It's considered as a landmark case and it's kind of the de-facto standard of what to expect from such a case at this time.
The finding was that the plaintiff (a victim of a false DMCA takedown), was entitled to have their content re-instated, and they collected all attorney's fees.
No other damages were awarded.

I agree with BuddhaPi that lawsuits can be a big pain, risky, and something like this would be difficult to prove.
However, modern e-commerce systems collect and process a lot of data. A smart (and angry person) might be able to leverage this.
I think that a strong case might include traffic statistics from before and after a de-listing, tied into sales/profits.
In theory, it should be easy to show how many impressions and completed transactions arrived from google prior to a DMCA takedown, and a comparison could be made to the conditions after the DMCA takedown.
It's worth mentioning that many lawyers and judges might have a difficult time grasping such concepts.  So, it would be an uphill battle, as BuddhaPi rightly points out.

Filing a successful lawsuit on the basis of this may be out of the question for individuals or small businesses.
However, large companies can and do file all the time.  Imagine that an important corporate site was de-listed on the day of a major product launch?

All this will be interesting to watch, as people and organizations attempt to apply copyright as part of strategic business plans.

S.G.

[Moe Hacken]

Buddhapi, I spoke wrong when used the word "proof". What Google requires is a verifiable complaint. If you tell them what the valid URL is supposed to be and what the offending URL is supposed to be, they basically check to make sure the URLs exist and that the infringement could be possible. They do turn down some requests; for example, if they find that the alleged infringement simply does not exist or if the infringing party took it down voluntarily before Google was going to take action.

I guess it's a bare minimum standard of proof — it has to check out at the most basic level. They're not going to de-list people if the complaint is clearly inaccurate or obviously false.

There's been precedents for wrongful use of the DMCA removal. Here's an example from 2004:

Diebold is the first company to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occurred. The section also stipulates that anyone who issues such frivolous threats must pay damages, including costs and attorneys' fees, to those harmed by the misrepresentations.

https://www.eff.org/press/archives/2004/10/15

[SoylentGreen]

I disagree with the contention that a "verifiable complaint" in the context that Moe stated should be form of "proof" (sufficient enough to take action).
Even though that's what actually happens... "an infringement might exist, so you're disabled until you prove otherwise."
The fact that a web page "exists" and a piece of content "exists", should not even be a test for a legitimate complaint.
That's like saying that because I have a car, that I must be guilty of speeding.

In the case of Diebold, I should mention that they paid a settlement. 
It was a "loss" for Diebold, but it didn't set a practical court precedent that could influence future court decisions in terms of what "damages" should be paid:

"in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit."

http://www.citmedialaw.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content

I'm looking up that other case for Greg, which does provide guidance as to damages...

S.G.

[SoylentGreen]

ok... as per Greg's request for citation, here's the lawsuit over a bogus DMCA takedown that I was referring to:

http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf

With some analysis:

http://blog.ericgoldman.org/archives/2010/02/standards_for_5.htm

"Judge Fogel has defined some standards for computing damages in a 17 USC 512(f) case, which creates a cause of action for sending certain types of bogus copyright takedown notices. I can't recall another case discussing the damages requirements of a 512(f) claim"...

In short, legal fees were awarded to the plaintiff because the DMCA notice was bogus.

---

I can see that this is relatively new legal ground, akin to how the legal status of online infringements remained until very recently.
I see the whole DMCA legal issue as being quite "loose" (for lack of a better term), because many of the concepts haven't been rigorously tested in the courts.
I have no doubt that things will "tighten up" up a lot after a few legal battles, especially in terms of what constitutes proof or due process.
All this is beginning to heat up...

S.G.

[Greg Troy (KeepFighting)]

Thanks for posting this SG, I will read them over when I get home from work this afternoon

ok... as per Greg's request for citation, here's the lawsuit over a bogus DMCA takedown that I was referring to:

http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf

With some analysis:

http://blog.ericgoldman.org/archives/2010/02/standards_for_5.htm

"Judge Fogel has defined some standards for computing damages in a 17 USC 512(f) case, which creates a cause of action for sending certain types of bogus copyright takedown notices. I can't recall another case discussing the damages requirements of a 512(f) claim"...

In short, legal fees were awarded to the plaintiff because the DMCA notice was bogus.

---

I can see that this is relatively new legal ground, akin to how the legal status of online infringements remained until very recently.
I see the whole DMCA legal issue as being quite "loose" (for lack of a better term), because many of the concepts haven't been rigorously tested in the courts.
I have no doubt that things will "tighten up" up a lot after a few legal battles, especially in terms of what constitutes proof or due process.
All this is beginning to heat up...

S.G.

[Moe Hacken]

Good links, S.G. That's the other famous case regarding bogus DMCA removals. The issue of "damages" was a bit vague because Lenz didn't really take a financial hit from having her cute video taken down. Universal also tried to argue that she had no damages because the EFF represented her pro bono.

Here's another interesting opinion on Lenz v. Universal:

A preliminary read on the decision indicates that Lenz can recover legal fees associated with fighting the takedown, but not necessarily fees connected with the cost of pursuing Universal for damages in follow-up litigation. To really sock it to Universal, Lenz would have to make a claim under a code that awards fees at the court's discretion. To do that, she will likely need to show that Universal knowingly misrepresented its initial claim.

http://www.reuters.com/article/2010/03/01/us-lawsuit-idUSTRE6200QZ20100301?type=technologyNews

I think the message is that the party filing a DMCA complaint should check to see it's really an infringement before they launch the takedown machine or they could end up paying to say they're sorry. The wrongly accused party should not expect to get real rich from it either.

I think it's an okay standard, but I still agree with S.G. that hitting someone with a bogus takedown is a good way to be a pain in their ass. If someone does that to you, you have to respond and you have to respond proactively. If they're real jerks about it, it may end you up in court. Who needs that?

It really shouldn't be as easy as "he's copying me, I swear", but that's the way the system works right now. The providers wash their hands in the deal and take the "safe harbor", and why shouldn't they? It makes their life a whole lot easier to just comply with the takedown requests.

I'm looking to see if there's any cases where someone intentionally lied in a DMCA removal request and got in trouble for it. I will post if I find anything, it really wouldn't surprise me if someone did attempt to use it as an SEO Black Hat smart-bomb.

[Moe Hacken]

As promised, here's a link to some interesting thoughts about DMCA removal abuse:

Google notes that, “From time to time, we may receive inaccurate or unjustified copyright removal requests for search results that clearly do not link to infringing content,” adding that it does not comply with such requests. How many of these requests are there? According to Google, “We removed 97% of search results specified in requests that we received between July and December 2011.” That means that out of all the requests Google receives, only 3% were sent by mistake or in bad faith.

http://www.copyhype.com/2012/05/rumors-of-copyright-abuse-have-been-greatly-exaggerated/

[lucia]

Well... someone using a bot was copying my blog. 
http://www.newsblur.com/site/1100897/

(I should mention, I also blogged about the event.)
http://rankexploits.com/musings/2012/newsblur-a-modest-proposal/

[SoylentGreen]

Good posting by Lucia, and neat script.
The point that people do take other's work is driven home here.

Not sure if Lucia's into this sort of thing, but she'd probably be able to run a successful consulting business that prevents and tracks these sort of actions.

S.G>

[lucia]

Who'd pay?