A Closer Look At How The Takedown Process Is Widely Abused

from the let's-look-at-the-numbers dept

Last week, we wrote about how, in a filing over the proposed three strikes rule in New Zealand, Google had filed a report pointing to widespread abuse of the DMCA takedown process. Plenty of others have noted the same thing, but some of the entertainment industry's lawyers are claiming my original report was false (it's great to feel loved). It's worth looking more closely at the numbers. Thankfully, one of our readers, Chris Brand, sends in the details of where Google's numbers came from. They did not -- as implied by the original report, on which I based my post -- come from Google's internal review, but from a report from two academics who studied the takedown process (pdf file).

From that report, we learn that the original letter from Google (and the subsequent reporting in PC World) was a bit misleading, but the actual point remains largely the same. This is why the entertainment industry is nitpicking around the margins. They think that if they can raise doubts about the fact that someone reports 37% instead of 30%, the rest of their argument is incorrect. But, the analysis by the academics clearly demonstrates the point that Google is making clear with its filing with the New Zealand government: when you grant the power to commercial parties to "take down" content or disconnect someone because they feel "wronged," they will undoubtedly abuse that process. That's quite clear from the nature of the numbers in the report -- even if the original Google filing and resultant PC World article were a bit off on the specific numbers. So, from the actual report, we see:
    On DMCA notices:

  • Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);
  • Notices to traditional ISP's included a substantial number of demands to remove files from peer-to-peer networks (which are not actually covered under the takedown statute, and which an ISP can only honor by terminating the target's Internet access entirely);


  • On link removal notices:

  • Over half--57%--of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
  • Over a third--37%--of the notices sent to Google targeted sites apparently outside the United States.
As you can see, some of the numbers in the original PC World report (and Google's letter) were attributed to the wrong thing -- it wasn't about DMCA takedown notices specifically, but about link removal requests. However, link removal requests certainly would seem to represent a good proxy for DMCA takedowns. So, the overall point that Google is raising is still quite valid: these sorts of processes, whereby you allow a private entity to demand takedown, are wide open to abuse by those who want to take down things they have no legal right to take down. The entertainment industry lawyers will play a fun game where they pretend that because the numbers were slightly mixed up, the whole thing is fine to ignore -- but that's because they don't have any real argument concerning the fact that the DMCA (and other takedown) processes are widely abused. Furthermore, those same defenders of Hollywood's monopoly system will have great fun with the fact that these numbers are from academics rather than Google itself -- but since Google was using them in its filing with the government, it makes sense that the numbers are, in fact, consistent with what Google sees internally.

In the meantime, it's great to see yet another validation of what I've said in the past: when I post something, it's part of the conversation, and it's great to see the comments go back and forth to bring out how the original numbers were slightly off, allowing us to continue this conversation and clarify those numbers. You don't see that in the traditional press very much, do you?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Simey, Mar 24th, 2009 @ 2:27am

    NZ Wins!

    Hey, in case you missed the news;
    http://creativefreedom.org.nz/story.html?id=231

    It's great that we missed this close call, let us hope the French are so lucky.

     

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  2.  
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    Anonymous Coward, Mar 24th, 2009 @ 2:46am

    only sort of on topic, but on the subject of the NZ copyright, internet, thing...

    section 92a's been scrapped.
    http://www.3news.co.nz/Govt-still-keen-to-address-internet-copyright-law/tabid/419/articleID/96708 /cat/68/Default.aspx

    hopefully that link works :S

    that said, apparently the minister in charge of such things is still keen to find some way to regulate these things. how far that can get? i don't know.

    it both irritates and annoys me how many truly stupid things are done by various governments, corporations, and other large entities in the name of profit and financial gain. harming themselves as well as everyone else, remarkably often.

    in this case, apparently one of the bigger isp companies just refused to deal. which was actually smart. [telstra, i think?]

    slightly more relevantly [maybe], I've long held that the bias of an article is irrelevant... it is better to have ano obvious and detectable bias in the article [which can thus be compensated for] than to apparently present a balanced and fair article that Actually significantly undermines one side or another....

    that said, in reports and things, one really should strive for accuracy.

    all these thoughts start out connected to the actual on topic subject... thing... and then i lose it. sorry 'bout that. make what you will of this.

     

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  3.  
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    moz, Mar 24th, 2009 @ 2:56am

    no, no, accept the RIAA lawyers agrument

    Any time the RIAA want to argue that small technical errors totally invalidate the whole document you should jump on it. After all, a huge majority of their media releases (and court filings) have errors, so by their own logic that makes the whole thing untenable, right?

     

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  4.  
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    Weird Harold, Mar 24th, 2009 @ 3:45am

    I have to ask the question:

    "Over half--57%--of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;"

    What percentage of them were valid removal requests?

     

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  5.  
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    Anonymous Coward, Mar 24th, 2009 @ 4:07am

    For once Harold, I would agree with a question you're asking. Please note, that doesn't mean I agree with your position, as we all know what that would be, but I am interested in knowing how many of the requests were legit.

     

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  6.  
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    jerseyjoe, Mar 24th, 2009 @ 4:41am

    Re:

    Let me help focus your good question - what percentage of the Notifications (the word in the law for what is commonly called a Take Down Notice)were "complying?"

    "Valid" invokes a statutorily irrelevant judgment question, is there a real violation of the complainer's copyright? But that's not what the law says. "Complying" refers to the elements of the TDN and to the very specific requirements of the law as it applies to one who sends TDN and one who receives one. A notice that is complying is the only one that requires action by a recipient. The language is even more specific, that it must be "substantially" complying.

    For those who think that the system is a simple as sending an email and then sitting back to watch the mayhem, here's the exact language of the law. (from http://www.copyright.gov/title17/92chap5.html#512. And, BTW, note the criminal penalties for a false notice . . .

    (3) Elements of notification. —

    (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

    (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

    (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

    (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

    (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

    (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    (B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

    (ii) In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

     

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  7.  
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    Anonymous Coward, Mar 24th, 2009 @ 5:04am

    Re:

    Considering the thousands of take downs issued by Warner to YouTube yesterday, I am sure we could dig up some examples.

     

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  8.  
    identicon
    Anonymous Coward, Mar 24th, 2009 @ 5:34am

    Re:

    Second that. Link removal requests are not a proxy for improper requests. So a business is targeting a competitor - what's wrong about that? And targeting a foreign site, why is that not a valid request?

     

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  9.  
    identicon
    Weird Harold, Mar 24th, 2009 @ 5:42am

    Re: Re:

    Tecnnically speaking, companies outside the US are not subject to DMCA (which is a US law). However, I think it is fair to say that Google as a US company is bound by those laws.

    I would love to see more about what is actually in these numbers. I smell some serious slant at work here.

     

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  10.  
    identicon
    Tgeigs, Mar 24th, 2009 @ 6:38am

    That old saying

    "Figures never lie, but liars figure"

    I have to say that, while I don't usually side with the entertainment lawyers et al on these issues, shame on Google for mucking up something so potentially important. I'm speaking as a relative laymen here, but how do you botch the numbers on something like this? And it's actually bigger than it looks. 37% to 30% isn't a 7% difference, it's a 23% difference. Does the jacking up of the numbers make the rest of your argument invalid? No, but when you're off by 23%, it does make me wonder...

     

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  11.  
    identicon
    Anonymous Coward, Mar 24th, 2009 @ 8:16am

    Copyright & Campaigns, at:

    http://copyrightsandcampaigns.blogspot.com/2009/03/googles-numbers-on-bogus-dmca-notices.html

    talked about this several days ago.

    I am curious why it was not included in the conversation at the time, particularly since it replicated (via link) the Google paper submitted in NZ, identified the footnote reference to the paper by the two academics, replicated the latter paper (via link), and then discussed several important things to keep in mind when analyzing the latter paper...not the least of which were the standards applied by the authors of the latter paper to arrive at the numbers they proferred. It was also interesting to read about the assembled data "by industry", with, IIRC, it being noted that the entertainment industries are apparently associated with but a very few of the TDNs contained in the paper.

    I believe you read the article at the other site, but based upon a comment you made do not believe that you followed the links to see the documents for yourself, and then return to the article to ascertain the basis for the comments contained therein.

    BTW, I read the article at C & C, read each of the linked documents, and then re-read the article to try and understand the blog author's comments. From this assemblage of material I received greater insight into the issue raised by the academics, and based upon my familiarity with the DMCA and the TDN process do have to agree that the author at C & C made some very valid and informative points that merit thoughtful consideration.

     

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  12.  
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    SoThatBiasCouldBeMoreObvious, Mar 24th, 2009 @ 9:43am

    Re:

    You did read the post about didn't you? Since you seem to be so detail oriented maybe you should try again.

     

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  13.  
    identicon
    LostSailor, Mar 24th, 2009 @ 10:06am

    Abusing the facts

    As you can see, some of the numbers in the original PC World report (and Google's letter) were attributed to the wrong thing -- it wasn't about DMCA takedown notices specifically, but about link removal requests. However, link removal requests certainly would seem to represent a good proxy for DMCA takedowns. So, the overall point that Google is raising is still quite valid...

    Let's translate: "the orginal numbers I cited were about something completely different but I'm going to assume they are the same thing even if they aren't because it supports my argument."

    No, Mike, link-removal requests are not the same thing as takedown notices for content and are not a good proxy at all.

    Gee, did you actually read the study? Because it has some serious flaws, which the authors correctly acknowledge (not to mention it's 3 years old and using data that's between 4 and 7 years old).

    The study mixes notices sent to Google (the majority of notices in the study) with notices self-submitted to the Chilling Effects site, which the study author readily admit unfairly skews the sample. It claims that there were 315 notices for takedown of hosted material over a 41 month period. That's less than 8 per month; hardly a tsunami of takedown notices.

    They think that if they can raise doubts about the fact that someone reports 37% instead of 30%, the rest of their argument is incorrect.

    Wrong again. It's not about the number, it's about what's being claimed by the number. Your March 18th post included the claim that "and over one third (37%) of notices were not valid copyright claims" and this post now says from the study "Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like)." Unfortunately, this claim is highly subjective. While a takedown notice might possibly be challenged, it doesn't mean that it's wrong or abusive.

    But even if 30% are challengeable, let's look at the numbers from above: that's 94 notices with potential problems over a 41 month period.

    The entertainment industry lawyers will play a fun game where they pretend that because the numbers were slightly mixed up, the whole thing is fine to ignore -- but that's because they don't have any real argument concerning the fact that the DMCA (and other takedown) processes are widely abused.

    If you'd read the study, you'd see that it's not the usual culprits in the entertainment industry.

    From the study:

    "Perhaps surprisingly, neither 512(c) search nor 512(d) hosting notices show significant use by the movie and music industries....Corporate and business entities are generally responsible for the lion’s share of notices, but of the 512(c) [takedown of hosted content] notices specifically, only 6% were sent by the movie and music industries combined."

    That's 19 notices in a 41 month period. If 30% are flawed, that's 6 flawed notices over nearly 3 and 1/2 years. That's hardly abusive.

    But why let facts get in the way?

     

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  14.  
    identicon
    Anonymous Coward, Mar 24th, 2009 @ 10:21am

    Re: Re: Re:

    That would be your own, in every post you make. Oh, that and you need a shower.

     

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  15.  
    identicon
    Weird Harold, Mar 24th, 2009 @ 10:25am

    Re: Abusing the facts

    Hmmm, I smell something fishy here... oh, no... sorry, that's just me. I masturbate A LOT. My bad.

     

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  16.  
    identicon
    Dave, Mar 24th, 2009 @ 10:45am

    Re:

    The atttached article reads: "one third of the notices depended on questionable claims"

    So 2/3rds were fine. Still one in three are abuses of a system, that's pretty high.

     

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  17.  
    identicon
    Anonymous Coward, Mar 24th, 2009 @ 1:43pm

    Re: Re:

    Since "numbers" are being bandied about, it is helpful to take a look at them and determine how they were derived. If that is being detail oriented then I gladly plead guilty, because without trying to determine their derivation the entire issue devolves into comments that are little more than a series of uninformed rants.

    Yes, I read all the articles and papers, but I do have to wonder if you expended similar effort.

     

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  18.  
    identicon
    Jesse, Mar 24th, 2009 @ 2:18pm

    It is difficult to know what constitutes "legitimate" until it has been tried in court. Some cases are obviously infringement, but others are not so obvious. I think the better question would be how many cases of the 57% were cases of blatant infringement (rather than a toss up).

    The point of the statistic, I think, is to highlight that many companies are using the DMCA to stifle competition.

     

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  19.  
    identicon
    Slackr, Mar 24th, 2009 @ 8:00pm

    Clarity

    Thanks for the update Mike. It is a little weak of Google to make a submission like this with anything but absolute transparency.

    While I appreciate people want to take you to task about some of the supposed inaccuracies and try to leverage off of it, as a citizen of New Zealand let's not forget the reason for the post in the first place. Google was making a submission against an aweful piece of 3-strikes legislation. With such a piece of legislation the potential damage from ANY accussation or abuse of the system is massive when it is guilt by accusation only. I for one am very glad the legislation died.

     

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  20.  
    identicon
    Gene Cavanaugh, Mar 25th, 2009 @ 9:37am

    Google's take on takedowns

    Right on, Mike! You are providing an extremely valuable service! I may be hard on you at times, though I don't intend any of it against YOU, rather at some of the background people; but if it sounds otherwise, I hereby apologize for any confusion on that point!
    I hope, and expect, that eventually a takedown will result in monetary harm to someone, and the resulting lawsuit (which, with interpleader, will eventually be against the people making the demand) will result in significant punitive damages (though, overall, the publicity will help more than the damages will hurt - there is no such thing as "bad" publicity when you are selling something and want people's attention).

     

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  21.  
    identicon
    Anonymous Coward, Mar 25th, 2009 @ 11:36am

    Re: Google's take on takedowns

    You continually identify yourself as a "patent lawyer", and yet your comments consistently belie the title you assert applies.

    Or is it that you try and use the title to somehow create the impression that your comments represent an accurate understanding of the law? If so it is not working on those who actually understand and practice the relevant law.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Slackr, Mar 25th, 2009 @ 2:39pm

    Re: Re: Google's take on takedowns

    Which country are you refering to AC? The law that was being discussed pertained to Google's submission on New Zealand's Copyright Law specifically Section 92(a).

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Mar 25th, 2009 @ 3:56pm

    Re: Re: Re: Google's take on takedowns

    Obviously you did not read the paper entitled "Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act" from which the numbers were taken.

    The numbers had nothing to do with what was being considered in New Zealand. They were limited to numbers the authors asserted were pertinent to the US Digital Millenium Copyright Act.

     

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  24.  
    identicon
    Wendy Piersall, Sparkplugging, Jun 5th, 2009 @ 8:49am

    Yep

    I can confirm you are right on with this. I have a former employee who took off with all of my advertisers, started a directly competing site, and then filed an illegitimate DMCA complaint against me to try and remove me as competition.

    There really does need to be some kind of barrier in place to prevent the crazies from harming legit companies and individuals with their obvious lack of ethics.

     

    reply to this | link to this | view in thread ]


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