Can Someone Block Google From Passing Along A DMCA To ChillingEffects?
from the don't-see-how dept
Lori Grunin points us to a slightly odd post from a lawyer, Carolyn Wright, who works with photographers, concerning Google’s well known policy of forwarding all DMCA takedowns to ChillingEffects where they’re aggregated and made available to the public. This serves a dual purpose. Beyond just providing more info for the public on these takedown notices, it allows Google to point people to ChillingEffects when a search result has been removed due to a takedown request. Now, we have seen some try (and fail) to block Google’s ability to forward such notices by claiming copyright on the notices themselves, but that’s an unworkable strategy.
However, I have to admit that I’m confused about Wright’s claims in the post. She discusses a photographer, Jason Wilder, who sent a DMCA take down notice to Google, but asked Google not to forward his takedown to ChillingEffects. Google told him that it was the company’s official policy in order to remain transparent about any content removed from the site, and saying that if Wilder doesn’t want the noticed passed along to ChillingEffects, then he can rescind the notice. Wright seems to think this somehow opens Google up to liability:
Nothing about 17 USC 512 requires that the complainant agree that his notice be made public and Google?s policy is not the law. So by refusing to remove the copyrighted material, Google is now potentially liable for the infringement. Now that?s cold.
It’s true that nothing in the law requires that the notice be made public… but that’s meaningless. Nothing in the law requires that the notice be kept private if the issuer requests it, either. Google is free to do whatever it wants with the notices, including making them public and forwarding them to whomever it wants. Nothing in that violates the DMCA. Furthermore, it accurately explained to Wilder that if he didn’t want it public, he shouldn’t file a notice. Again, that’s entirely accurate. So what about any of that opens up Google to liability? The way you get hit with liability under the safe harbors is if you ignore a takedown request. But if Wilder rescinds his request, then there’s no longer a request to obey. So how does this create liability for Google?
Filed Under: chilling effects, copyright, dmca, liability, photographs, takedown
Companies: google
Comments on “Can Someone Block Google From Passing Along A DMCA To ChillingEffects?”
Seems like there is an opportunity here for a middle man to charge a nominal fee to create and send DMCA notices while acting as an agent for the copyright holder.
Re: Re:
Except they would still need to disclose who the alleged copyright holder is.
And a middleman would face greater liability if his client managed to use him to send defective notices.
Re: Middle Men
Ask Righthaven how this worked out.
Is there not issues of privacy of communications? What are the California laws like on this?
Re: Re:
Communications (usually) involve two or more parties. I am no expert on Cali law, but generally if one of those parties wishes to disclose information from the communications there is no privacy issue. If a third party were to intercept the communications, it might be a different story. There may be separate contractual issues if they agreed to not disclose information, but here there appears to be no such agreement.
Because piracy.
Re: Re:
I’m sorry you failed to phrase your troll accordingly.
According to Troll Rule #17827 the proper format is –
but…but…piracy!
We will be assessing a fine on your AC license, to avoid further fines please refresh yourself on the Troll Bylaws.
Re: Re: Re:
I’m sorry you failed to phrase your troll accordingly.
That wasnt’ a troll. That was sarcasm. Wait, maybe you knew that wasn’t a troll and you are being sarcastic. A double reverse sarcasm troll? OK, now I’m confused.
Re: Re: Re: Re:
Its dangerous to go alone, here take this kitten.
Re: Re: Re:2 Re:
Stop the trolling or I’ll shoot this puppy.
Re: Re: Re:3 Re:
Stop threatening to kill puppies or I’ll destroy that toilet with this sledgehammer.
Re: Re: Re:4 Re:
I am disappoint
I think the failure is a lapse of logic.
“So by refusing to remove the copyrighted material, Google is now potentially liable for the infringement.”
At no point in the discussion did Google refuse to take down the content.
They refused to change their policy of forwarding the notice to Chilling Effects, and informed him if he wanted to avoid the notice being seen publicly he could withdraw the complaint.
You could demand Google send you a cookie for each notice you file, and Google could tell you no – but that does not mean Goggle will not properly handle the takedown notice and forward the notice as their policy dictates.
If you have the burning desire to takedown something you “own”, you should not have fear that a legit takedown notice would reflect poorly on you. If your going to complain, one is left asking what are you trying to hide and was the notice legit in the first place?
Re: Re:
The logic may be that Google by forcing his client to decide to be exposed or withdraw the DMCA in practice forced his client to avoid exerting his rights or some equally nonsensical argument.
Those crazy people apparently have no balls.
They probably need a sun blocker factor 1000x when they go out in the light.
Re: Re:
Because that want to have the cake and it too.
Re: Re: Re:
Sorry..
Because that want to have the cake and eat it too.
Re: Re: Re: Re:
The cake is a lie?
Re: Re: Re:2 Re:
You will be baked, and then there will be-
WE INTERRUPT THIS POSTING TO ANNOUNCE THAT A DMCA NOTICE HAS BEEN GIVEN BY STEVE JOBS OVER THE ABOVE-
‘We interrupt this notice to announce that we are suing Steve Jobs for defamation. Please reassign all copyrights over from Valve Corporation to Apple at your earliest convenience, or else we will take a bite out of the Apple.”
Re: Re: Re:2 Re:
Yes the cake is a lie, its not the cake you are eating but consuming your self. I was shooting for Matrix like quote, also for the cake haters you can substitute pie or any non dairy product dessert product.
Re: Re: Re:3 Re:
Don’t try to bend the cake, that’s impossible. Instead… only try to realize the truth. There is no cake.
Re: Re: Re:4 Re:
-Keanu-
Whoa
/-Keanu-
Re: Re:
Depends whether the guy sent his DMCA at the same time as the request not to pass it on. If he did, then presumably the clock is running for Google to take down the material. If Google waits too long to see if he will retract the DMCA notice they could run into trouble.
Turns into a game of chicken – will the photographer back out and retract his notice before google gets concerned about liability and does the take down and forwards the notice on.
I’m guessing there’s no way google will run the risk and will send anything they’ve got on to chilling effects well before things get dangerous for them.
Re: Re: Re:
I think that Google just processed the take down request as normal but told the photographer he could rescind the notice if he wanted.
Re: Re: Re: Re:
In which case it’s already been passed on to chilling effects and is now public with no way to undo?
Re: Re:
The article certainly suggests that Google refrained to remove the material the photographer was claiming copyright over.
Whether or not they verbally “refused” to do so is not particularly relevant. If they received a valid notice and failed to disable access to the content, they are likely outside the DMCA safe harbor.
Re: Re: Re:
They have a certain amount of time to respond – 30 days, is it?
I re-read the story and sort of got a weird vibe, and I figure out what it is.
What are the chilling effects on DMCA notifications to Google if Google gives them all to a third party? Is it somewhat of a cowinkydink that the site hosting them is chillingeffects?
It would seem that, at least in this case, that someone who would file a DMCA with Google is unable or unwilling to do it because Google is imposing conditions on that notification. Basically, “You cannot send us a DMCA unless we can send it to Chilling effects”. Would that not limit the rights of the DMCA claimant, and directly have a chilling effect on their ability to make DMCA complaints?
It looks like they may actually be right here, by Google refusing to take DMCAs without imposing additional conditions on acceptance, they may in fact be in breach of the DMCA notification system, and as such liable.
It would take some good lawyering, but I can see it.
Re: Re:
Um.. no. Its more like Google saying “If you send us a DMCA takedown we will process it as required by law and then file it with Chilling Effects.” Their policy does not say “We will not process this DMCA unless we can post it to Chilling Effects.”
Re: Re: Re:
Umm, that is exactly what they are saying. We cannot accept a DMCA that is conditional on us no putting it on Chilling Effects, ergo, you must accept the publication to file a DMCA.
Re: Re: Re: Re:
Google is required by law to accept and process the DMCA request. Once they have done so they can do anything they please with it, which in this case means publishing it to CE.org. Where do you see it specifically saying “We will not process your DMCA request (even though we are required by law) unless we can post it to CE.org.”?
Re: Re: Re:2 Re:
You just said it.
Unless the DMCA claimant agrees to have the notice publiced on CE, they cannot file. If they file, the notice will be published. It creates a “conditional” which is not in the law. DMCA notice acceptance cannot be conditional on X or Y or Z.
Re: Re: Re:3 Re:
Except they do not have to agree.
Google pointed out its going on CE, you seem concerned about that if you want you can retract the notice if it will cause you such terrible grief.
This is the same kind of bad logic used by debt collectors who hit answering machines “If you continue to listen to this message you agree that your the party in question”.
Re: Re: Re:4 Re:
I fooled my debt collectors. My message states that if you are trying to collect a debt and don’t leave a message than you willingly agree that I don’t owe you anything…I have yet to get one to leave a message and I know they call 🙂
Re: Re: Re:3 Re:
“Unless the DMCA claimant agrees to have the notice publiced on CE, they cannot file.”
That isn’t what it says. It says if you file, we will publish. The filer does not have to agree to anything.
You send me a letter, notice, anything, I will do what I want with it, if you don’t like that, don’t send me anything. A love letter is a private thing which the recipient may do as they wish with it, including burning it.
I’ve always laughed at these lawyers claims of not being able to show anyone… If you aren’t intended recipient…what did you get wrong, the name or the address? How do I know which is wrong?
Re: Re: Re:3 Re:
It is not a condition per se. If sent a valid DMCA request, Google will process it. True, if you don’t want it to be published, then don’t send one. However, since Google will not have received a valid DMCA takedown request, there is nothing for them to be liable for. It is more of a consequence than a condition.
I do get your chilling effects argument, and I don’t think the irony should be lost on anyone. I would like to think that that it is Google’s way of making a point.
Re: Re: Re:3 Re:
It takes a special kind of person to distort things this badly…
Google isn’t creating a condition. Anyone can still file the notices at will, as required by the DMCA. Full stop. End of story. Google is in full compliance.
Now, here’s the thing: if you file a notice with Google, they’ll publish it to Chilling Effects (apparently), as a matter of policy (for transparency and whatnot). This is a completely separate issue from the DMCA takedown mechanism. Also, it’s perfectly legal (I think): you were sent a takedown notice, you complied, you can now post it online for everyone to actually see that you complied. Seems reasonable.
Sure, you can try to ask Google not to do that, but since they are not required to do anything more than what the DMCA takedown mechanism requires, then are free to ignore you (or just say no). So they do.
There, did that make it more clear?
Re: Re: Re:3 ...
Let me rephrase it for you:
Unless the DMCA claimant ACCEPTS to have the notice publiced on CE, they cannot file. If they file, the notice will be published. It creates a CHAIN OF EVENTS which is not in the law. DMCA notice acceptance IS NOT conditional on X or Y or Z.
Re: Re: Re:4 ...
Once the claimant has filed his notice and it has been processed all it is is information about what has been taken down.
Look at it this way. CE.org is providing a free archival service of what has changed. The Internet never forgets.
Re: Re: Re:5 chillingeffects.org not ce.org
chillingeffects.org not ce.org
Re: Re: Re:4 ...
Show us where it says they can’t file.
Re: Re: Re:5 ...
They cannot file unless they agree to allow publication to CE. Without agreeing to publication in CE, there is no way to serve a DMCA notice to Google.
It created a “conditional” situation.
Re: Re: Re:6 ...
And to reverse the situation he added conditions not spelled out in the law for DMCA take down notices, so he made demands that are not part of the law.
Re: Re: Re:6 ...
They cannot file unless they agree to allow publication to CE. Without agreeing to publication in CE, there is no way to serve a DMCA notice to Google.
It created a “conditional” situation.
Legally they can’t stop Google from following it’s own policy.
They are not required to “agree” – they can protest all they like about what Google does. (an Google is within its rights to pass the protests on to CE!)
If they want to stop Google from passing the request on then they would have to go to court and get an injunction – good luck with that thiough – cos there isn’t a law to do it with.
Re: Re: Re:7 ...
Richard, you miss the point entirely. It isn’t “it’s in the law”, it’s a question of Google’s policy creating a chilling effect on DMCA filings.
You cannot file a DMCA notice with Google without the notice ending up on CE. If you do not want to be on CE, you have to give up your rights to file a DMCA with Google.
What Google is doing is legal on it’s face, but creates a chilling effect that takes away DMCA protections from someone who does not want to be listed on CE.
On a site where people complain about rights being “trampled” all the time, it is amazing that you cannot see that this creates a real problem for people who would want to file a DMCA with Google.
Re: Re: Re:8 ...
If Google’s policy creates a situation where people have to think twice to decide if they want to be associated with having issued a take-down notice, then good. Requests to censor information that have the force of law behind them should not be hidden or kept quiet.
I agree that for some, this might create a reluctance to file a DMCA notice. Good. One good chilling effect deserves another.
Re: Re: Re:8 ...
I can only wonder at why someone would want to take down their content and not want anyone to know that they wanted to take down their content.
Oh, that’s right, because it would piss of fans.
I am pleased with Google’s policy.
Re: Re: Re:8 ...
It does not take any rights, the DMCA does not give you a right to file a secret take down notice, so the fact that you cannot file a take down with google without it being a matter of public record does not take away any of your rights. It’s like saying the fact that you don’t want anyone to know that you pleaded the 5th in a court case takes away your 5th amendment rights because it will be a matter of public record. Well tough shit you can’t invent rights that you don’t have.
Re: Re: Re:8 ...
On a site where people complain about rights being “trampled” all the time
Whose rights are being trampled, here? Assholes who don’t want the public to know that they’re assholes? Sorry, that isn’t a right enumerated anywhere I can think of.
In fact, not allowing people to post DMCAs would be a violation of an actual right, namely the first amendment.
Re: Re: Re:8 ...
The take-down isn’t a private matter. They are allowed to do as they please with this, since it is public information. You’re saying, repeatedly, that Google is putting a condition on the takedown. They are not. If you sent me any sort of legal papers like this it would be well within my rights to post this information online. Complain all you like, if you file something like this, you don’t get to say boo about what is done with it.
I guess the real question is why would it matter at all if the takedown notice is posted? Seriously?
Re: Re: Re:8 ...
And as That Anonymous Coward pointed out, requiring Google to not pass on to CE is attempting to add legal conditions to the DMCA that he has no right to add. Google is merely refusing to accept.
Re: Re: Re:8 ...
That’s a nonsequitor. I can see how this creates a problem for people who want to do secret takedowns. But there’s no right to do secret takedowns, so this is not trampling anyone’s rights at all.
And, as other commenters have said, if you want to do a secret takedown, it seems highly likely that what you want to do is shady to begin with.
Re: Re: Re:8 ...
> What Google is doing is legal on it’s face, but creates a
> chilling effect that takes away DMCA protections from
> someone who does not want to be listed on CE.
That’s like saying the Open Records Act and Freedom of Information Act create a chilling effect on dealing with the government.
“If I can’t keep my dealings with the government secret, I have to refrain from dealing with the government.”
Or the fact that court transcripts are public record creates a chilling effect on the ability to sue.
“If I can’t keep the record sealed, I might decide not to exercise my right to sue.”
None of those are valid arguments for allowing people to lock up valuable public policy documents and neither is it a winning argument in this case.
Re: Re: Re:8 ...
On a site where people complain about rights being “trampled” all the time, it is amazing that you cannot see that this creates a real problem for people who would want to file a DMCA with Google.
I can see perfectly that this creates a real problem – and I think that it is a GOOD THING.
The thing is it only creates a problem for people who want to do something that it pretty anti-social. After all “nothing to hide, nothing to fear”.
Re: Re: Re:6 ...
Of course there is, be man and show yourself to the world.
Re: Re: Re:6 ...
They can file and they can also not agree that Google can publish the notice to CE, in fact google does not require them to enter any sort of agreement. However Google has no obligation to pay any attention to whether or not the the person submitting the takedown “agrees” to anything, they cannot impose a “do not forward this to ce” condition upon the take down notice. You see no one agrees to anything, this is not an EULA google does not make you tick a box saying that “I agree that …” in order file a DMCA take down. It just does what it does, which it seems that it is entitled to do.
Re: Re: Re:6 ...
They can file whether they agree or not. Nowhere does it say you must agree to publication of notice in order to file.
It is not a stipulation, it is a consequence.
It will be published if filed.
Your ex-partner keeps writing you love letters. You tell them the next one will be published.
Does this mean they can’t write you anymore love letters unless they agree to publication?
In other words, is that a condition of them writing another letter or a consequence?
If you hit me, I will hit you back.
If you don’t want me to hit you, don’t hit me.
The choice is yours as to whether or not you want to hit me. My hitting you is a consequence of you hitting me, not a condition. You can hit me whether you want me to hit you back or not.
Re: Re: Re:6 ...
They cannot file unless they agree to allow publication to CE. Without agreeing to publication in CE, there is no way to serve a DMCA notice to Google.
It created a “conditional” situation.
It did not. In fact, it was the photographer who created a “conditional” situation.
Let’s try an analogy. The photographer sends a takedown notice to Google, and also demands that Google pay him $20 (for lost wages, compensation for the infringement, whatever).
Google refuses, and says “we can either honor the DMCA notice without sending you $20, or you can rescind the notice. Your choice.”
Would Google be creating a “condition” for this artist to follow? Of course not. The photographer would be creating a condition, which is well outside the bounds of the law, on Google.
Just as is the case here. In the takedown laws, there is not even a hint that DMCA notices have any expectation of privacy. Furthermore, that flies in the face of accepted legal practice, which usually requires that legal filings be made public (absent special circumstances).
The idea that Google would lose DMCA protections for this is absurd. Essentially, that would mean that any content holders could put any conditions in the takedown notice that they wanted, and Google would be blackmailed into following them.
Re: Re: Re:7 ...
demands that Google pay him $20
Actually, given the standard phrases of the idiot trolls here, I should have said “demands that Google make him a sandwich” or “demands that he can kick Google in the nuts.”
Re: Re: Re:8 ...
Or “demands that Google pay him 20 million squillion bajillion dollars”.
Re: Re: Re:4 ...
Let me rephrase it for you:
No one gives a shit what the DMCA claimant accepts or doesn’t accept, only what Google is obligated and not obligated to do under the law. They are legally required to comply with the takedown pursuant to the DMCA’s provisions. They are absolutely not legally required to keep the takedown secret or legally prohibited from republishing the request. Just as Google’s policies are not the law neither are the claimant’s wishes.
Re: Re: Re:5 ...
You are arguing that there is a statutory duty to takedown material. It it were true, then that’s state action.
Re: Re: Re:6 ...
ok, it’s implied that we’re all assuming Google doesn’t want to lose it’s safe harbors condition. Under that scenario, Google must comply with the takedown notice. Other than pointing that out (which I don’t think anyone was confused about), I don’t get the purpose of your post.
Re: Re: Re:4 ...
However, once the piece of paper on which the takedown is written is sent to google, it becomes their property. At that point they can do with it whatever the hell they want. The wishes of the sender for the final dispostion of the request are completely and totally irrelevent.
Re: Re: Re:4 ...
This is not accurate. They can refrain from “accepting” Google’s actions, send a notice, and Google will simply act contrary to their wishes.
Re: Re: Re:3 Re:
Google isn’t saying they will refuse the notice, they’re saying if they receive, no matter what you tell Google, Google will forward the notice.
What Google said, is if you don’t want your notice to be public, don’t send it to Google.
Re: Re: Re:3 Re:
Yes, and that is blackmail by google and by ce.org. Both are criminal acts.
Re: Re: Re:2 chillingeffects.org not ce.org
chillingeffects.org not ce.org
Re: Re: Re: Re:
Umm, that is exactly what they are saying. We cannot accept a DMCA that is conditional on us no putting it on Chilling Effects,
Where did they say that? When they get a notice, they follow the DMCA by removing the offending content. If the notice also stipulates that they can’t post it to ChillingEffects, they ignore that part and post it anyway, because that request has no force of law.
Re: Re: Re: Re:
But, by law, all they are required to do is process the request (to avoid liability). Once the document is given to them, they can do whatever they want with it.
The only limits on that ability to do whatever they want are copyright and contractual obligations. The documents are not generally considered copyrightable and there are no contacts between Google and the other party.
Re: Re: Re:2 Re:
Additionally, it can probably be argued that by added all sorts of extra caveats to the DMCA takedown notice, it is no longer a valid takedown notice.
The DMCA stipulates what is required in a valid notice.
Re: Re: Re:2 Re:
In this case, it appears they did not take down the material, though.
Re: Re: Re:3 Re:
[Citation Needed]
Nowhere in the post does it say this.
Re: Re: Re:4 Re:
The response from Google says: “If you do not wish us to send your complaint to Chilling Effects, you may rescind your complaint and we will refrain from removing the content in question. Please let us know how you wish to proceed.”
That could be taken as an indication that they are doing nothing until they receive further info.
That seems to be how the attorney/blogger is interpreting it: “So by refusing to remove the copyrighted material, Google is now potentially liable for the infringement.”
Of course, I have no idea if that’s true or not, but that seems to be the basis for her conclusion that Google may lose its safe harbor status.
Re: Re: Re:5 Re:
Google is doing the attorney/blogger a favor by giving them the option to reconsider before their notice is published against their wishes.
I would imagine if they receive no response that they will wait the maximum allowed time before taking down the content and publishing the notice because Google would rather publish something the attorney/blogger doesn’t like than lose their safe harbor status.
Re: Re: Re:6 Re:
The attorney/blogger didn’t send the notice.
Re: Re: Re: Re:
ergo you sent us a notice, you don’t have control over it.
Kind of like the people who tried to copyright the notices to stop them from being posted to Chilling Effects.
They probably informed him that it was going to be posted to Chilling Effects and offered him a chance to keep it hidden if that was his desire as he made a point of adding that condition. They answered his demand and gave him a chance to change his mind if he was so worried about the notice being public.
Again they never said we will not process your notice, they said you can’t tell us to not post it after we takedown the material.
Re: Re: Re: Re:
“We cannot accept a DMCA that is conditional on us no putting it on Chilling Effects,”
No, they are saying that the claimant CAN NOT put conditions on the notice.
Re: Re:
Google wants to remain transparent on why things disappear.
There is nothing that says that the notice is private or secret, it is a notice. They are posting the notice publicly as has been done with all sorts of legal notices.
Again Google never said they will not take the notice.
The sender wishes to impose extra rules on the exchange.
Google informed him if he does not want the notice to be seen publicly, then don’t send the notice.
If he has a valid leg to stand on, why does he fear people knowing that he was behind it. If it was his work, people will figure it out anyways.
Re: Re:
when you were a kid, and you passed a note to someone in class, there was no guarantee that that note would not be shown to others, or be put someplace for others to see.
there is no requirement of secrecy, with DCMA takedowns, and no expectation as such in law for it. if you send a notice to someone else, and no prior expectation of privacy was set up, you can’t magically make it appear when you hand the document to them. If you can make that rule, they can make the rule to refuse to accept the paperwork, and then you still didn’t get what you wanted.
Re: Re:
Would that not limit the rights of the DMCA claimant, and directly have a chilling effect on their ability to make DMCA complaints?
No, republishing the complaint in no way what-so-ever limits the rights of the DMCA claimant. The claimant is entitled to write the notice, Google is obligated to reply, but their obligation to the claimant ends there. You are attempting to obfuscate the issue by implying the claimant has a right not to have their claim published without their consent but this right does not exist under the law. Therefor what you’re actually suggesting is that the claimant can curtail Google’s right to publish corresponding they receive simply because the claimant wishes it.
Everything Not Forbidden Is Compulsory
Everything not allowed is forbidden.
Have to agree with Nathan F here… Google has it’s standard policy, and it’s the photographer who is asking them to change it with no legal leg to stand on. Anybody who receives a DMCA notice can make it public… sure they could play friendly and keep it private, but who does that benefit? Will the photographer really lose business just because he doesn’t want his copyrighted material freely available on google?
Re: Re:
No leg to stand on?! it looks like a pirate to me.
Re: Re: Re:
No leg to stand on?! it looks like a pirate to me.
No – pirates generally have one leg…
Protip – Never take legal advice from a lawyer who pimps her photo sales on her website?
Because reading the actual exchange shows that Google never said no. Google offered him a chance to protect himself from being exposed on CE as this was of great concern to him.
Re: Re:
I for one would like to see what he originally sent.
It is possible it wasn’t a valid notice to begin with, which is why Google broke out the so simple the MPAA can do it webform.
And then he sent his message about not wanting it to appear, and they explained the only way to have the notice not appear is to not file it.
His personal information would be redacted, so I am still curious why he was so terrified of his takedown being published.
Re: Re: Re:
Because he’s just being a dick.
Re: Re:
Whether or not they said no, their response indicates that they had not taken down the material, and would not do so until they got further clarification from the photographer.
If they don’t take down the material after receiving a valid notice, they lose their safe harbor (though I could see a judge trying to contort the DMCA in Google’s favor in this case since they were trying to be nice about the guy’s request).
Re: Re: Re:
Well, all the email says is he filed a complaint. It may not have been a valid takedown notice.
Re: Re: Re: Re:
No idea one way or the other on that.
Re: Re: Re:
So they take down his stuff and as per their policy post the notice to CE.org. The guy gets all upset that his notice is on CE.org and raises a big stink about it. So to keep that from happening (and since it sounds like the guy doesn’t want his notice on CE.org) they decided to hold off on processing the take down till he tells Google, “yes I understand that it will get posted to CE,org but take it down anyway” or “No, since I think it is more important that I not show up on CE.org do not process the take down.”
Re: Re: Re: Re:
I’m not saying Google is acting unreasonably, but if they refrain from taking down the material until/unless they get further clarification, they might lose their safe harbor status.
Re: Re: Re:2 Re:
Google is not going to lose their safe harbor rights just to prove a point to one jerk. They are playing nice and holding off as long as legally allowed to allow this jerk to rethink his jerkiness. Once the legal limit has been reached (and assuming that no response was received) then Google will continue the legal process of removing the content. From that point, what Google does with what is now considered their property is their business.
Google could be the real jerk here, ignore this guy’s request, remove the content, and put the C&D on CE.org. This guy would have no recourse as Google is well within their rights and the law.
Re: Re: Re:3 Re:
You seem to assume that everyone at Google knows exactly what they’re doing.
You also seem to assume there is a defined legal limit as to how long one can wait before removing content without losing safe harbor status.
Neither assumption is warranted, in my view.
Re: Re: Re:4 Re:
And you are assuming that engaging in clarification discussions with the notifier/claimant puts their safe harbor status in jeopardy. That doesn’t seem warranted either.
You keep saying they appear to have refused the request. The language they specifically used was, “[…]you may rescind your complaint and we will refrain from removing the content in question.” This indicates that their default action without further input will be to *comply*.
Re: Re: Re:5 Re:
That might be a valid interpretation of their language as well.
I think I’ve stated pretty clearly that I don’t know what Google is actually doing in response to the notice, and that *if* they decline to take action after receiving a valid notice, then their safe harbor status is at risk.
Re: Re: Re:4 Re:
Apparently there is no defined limit. According to the almighty and omniscient Wikipedia, “The law provides for ?expeditious? action. The meaning of “expeditious” in the context of this law has not yet been determined by the courts. Black’s Law Dictionary defines “expeditious” as “performed with, or acting with, expedition; quick; speedy.” In the common law, the term “expeditious” has been interpreted according to the circumstances, allowing more time than “immediate” but not undue delay.”
I doubt this guy could launch a successful lawsuit claiming Google’s action in this case was not expeditious, just because of this response.
Re: Re: Re:3 chillingeffects.org not ce.org
chillingeffects.org not ce.org
Re: Re: Re:2 Re:
The DMCA provides deadlines for how quickly the notices have to be responded to. I’m assuming that Google’s response did not mean that they would refrain from removing the materials indefinitely, but more likely they’ll wait to hear from the photographer until the deadline comes, then they’ll execute the takedown (and post it on CE).
Re: Re: Re:3 Re:
My recollection is that the only deadline is “promptly” or “expeditiously” (i.e. no hard dates).
Re: Re: Re: chillingeffects.org not ce.org
chillingeffects.org not ce.org
So this all seems stupid anyways. I’m sure google is just trying to remain “friendly,” but they could easily just request chillingeffects to post every takedown request even if the request is retracted. They probably also have clout with chillingeffects where that site would take down the takedown request if google requested they take it down when the original requestor retracts the inital takedown request with google.
Rationals for not wanting your notice, noticed.
What could they be?
A. Not the actual copyright holder?
2. A questionable claim (fair use, or other exception possible)?
c. Negative communication revealed to potential markets?
IV. Hiding revenue from the IRS?
E. Other forms of profit…?
Re: Rationals for not wanting your notice, noticed.
You forgot:
Yellow: We hate Google!
Re: Rationals for not wanting your notice, noticed.
It appears he takes photos of bands at concerts….
One wonders if he signed one of those contracts that some of the acts have been using to seize all the pics taken, and he just wanted to make a photo go away.
Or if a band used one of his photos without permission and he thought he could get it yanked.
Or if he did something really stupid and they put up a photo of him and he wanted to black it out.
Better question…. why was he DMCAing Google rather than the site hosting what he was trying to get rid of?
Curiouser and curiouser, trying to stifle a criticism?
Hovering over the link to the Google Webform…
A wild clue appears…. It uses hint… its very effective.
It was specifically for GooglePlus.
Any bets he didn’t want to get flack for someone using it as their pic and him taking it down?
Isn't this a critical part of the LSAT?
Gotta love the logical fallacy in Wright’s argument. Isn’t that like LSAT prep 101, let alone actual lawyering…
Why is it?
Why is it that so many of today’s lawyers and politicians seem to be the bastard offspring of The Red Queen and Big Brother?
I think the question that seems to have been over looked is, has Google removed the copyrighted content as requested by the copyright holder? Surely if they ignore that part of the request they would be liable?
Now from what I’ve read here it seems Google hasn’t actually refused to comply with the request to remove copyrighted content. All they’ve refused is a request not to publish the DMCA.
Re: Re:
The attorney/blogger seems to assume that Google was not going to remove the content unless/until the photographer clarified on the issue of publishing the notice.
Not sure if that’s true, though.
Re: Re: Re:
He sent something he THOUGHT was a DMCA notice, we have not been shown what he sent.
It could be a complete failure to properly craft a notice.
Google replied and said here is the webform you can use to file a DMCA notice.
He read the webform and saw Oh hey they are going to put this on CE and well I don’t want that. He then contacted them and said No you can’t do that. They informed him that was their policy to send on all DMCA requests to CE, and if he does not want to appear on CE he could rescind his notice.
His concern was not that they would not take down the content, but that they would make it clear he was behind the takedown.
Then law blogger decided that Google said they would not remove the content, but her own post offers nothing to support this claim.
The main issue is some people want to remove their content and not suffer any negative responses. If they were just protecting their content most people would have nothing to say other than… well there are other ways to deal with these sorts of things.
Sure, but none of that relieves Google from the obligation to take the content down if it wants to retain its safe harbor from liability (assuming the notice did meet all requirements, which we don’t know).
So in the face of doubt Google waiting for an answer from the sender about what they want to do about it, can’t be viewed as no compliance in fact it is an act of good faith and respect towards the sender.
Photo Attorney Blog Post
The unresolved issue is whether Google is prevented by copyright or other law from providing Jason?s take down notice to Chilling Effects, regardless of Jason?s preference. The issue presented in my blog post is that Google refused to take down the allegedly infringing material unless Jason consented to the dissemination of his take down notice. If Jason?s take down notice met the requirements of Section 512, then Google is required to take down the material or risk liability (unless the owner of the website with the allegedly infringing material files a counter notice, as discussed here: http://www.photoattorney.com/?p=1935).
Re: Photo Attorney Blog Post
The unresolved issue is whether Google is prevented by copyright or other law from providing Jason?s take down notice to Chilling Effects
How is that “unresolved”? The “this form letter is copyrighted” scam already failed. The DMCA doesn’t state that it is forbidden, so it is allowed.
There, I resolved it for you. 🙂
The issue presented in my blog post is that Google refused to take down the allegedly infringing material unless Jason consented to the dissemination of his take down notice.
Google didn’t refuse anything. Jason tried to add something to his DMCA taketown request, namely, that it not be shared and Google responded by saying that the only way it won’t be shared, per their policy, is that if it isn’t issued at all. They then gave him the opportunity to rescind the takedown request.
I can’t see a refusal there at all. How can you? Are you suggesting that if Jason sent a takedown and amended it to say that Google can’t ever throw it away, that when Google said “our policy is to throw it away when we’re done, and they only way we’re not going to throw it away is if you don’t send it” that they were refusing the takedown request?
This seems like a scummy move by yet another scummy lawyer.
3/10
Re: Photo Attorney Blog Post
Google is guilty of 1 thing…Of trying to not be dicks.
Jason didn’t want anyone to know he was responsible for the content being taken down.
You do not provide his original “Takedown Notice” nor “The Webform Takedown Notice” anything else that he wrote to Google.
Your not even sure the content he was targeting was actually his.
You might want to see the recent story here about someone removing all of the content from major labels with false DMCA notices here.
What you have done is presented a one-sided argument that fails to meet the requirements of being truthful. You make some amazing “logical” leaps, but have nothing to support your opinion of the situation. What you want the law to say does not change what it actually says.
Google seeing the great amount of distress Jason was showing about the notice being on Chilling Effects (redacted of personal information to stop your next but but but) and his demands outside of the scope of the law about the notice.
Google explained if he did not want the notice to be on CE then he could rescind the notice.
They gave him a chance to make a decision, because he seemed more concerned about people seeing the takedown more than someone “stealing” from him.
They did not tell him you have to approve this being on CE or its not going to happen.
They let someone who was more concerned about looking like a douche by taking down photo(s) from a fans Google+, reconsider the decision.
(And I can’t even be sure about that as this is all happening in a vacuum. He could have been trying to take down a photo someone took of him that shows him in a bad light.)
You might want to let him know that even if the notice had never been on CE they still would have figured out he was behind the takedown.
While you offer them a long list of things to try to protect their copyrights, which is impressive, the leaps you make in this case call into question your thinking.
I stand by my previous protip.
Re: Photo Attorney Blog Post
“Google refused to take down the allegedly infringing material unless Jason consented to the dissemination of his take down notice.”
Why do you believe that to be true? The language from Google quoted in your blog post does not make that clear.
It certainly could be interpreted that way, but it’s a bit ambiguous.
What good is the chillingeffects site anyway?
Re: Re:
It keeps a lot of paper out of the landfill sites.
Sent wired through my HP PC device(viewable using another HP device) through Netgear router via cogeco cable high speed internet..
Envoy? filaire gr?ce ? mon appareil PC HP (consultable ? l’aide d’un autre appareil HP) par routeur Netgear via Cogeco C?ble Internet haut-d?bit ..
I have no rescinded my dmca request, and google refuses to remove the copyrighted content. Google has now been ignoring all of my dmca requests. So you ask, how does this make google liable? Failure to abide by the DMCA notice means google looses safe harbor. Any questions? feel free to email me before posting a story without all of the facts next time.
Re: Re:
Question: Have your subsequent DMCA takedown requests also had that whole “don’t forward this to chilling effects” stuff?
Re: Re:
Two more questions: are they compliant DMCA requests, and have you responded to Google that you would in fact like to proceed with the original takedown?
Why identity should not be disclosed
I know this topic is several months old but there is a glaring issue missing from the “discussion”.
RISK OF HARM and CYBER-STALKING
Let’s say some psycho on blogger is stealing / using my intellectual property on Google’s blogger service and I want it taken down, according to this “policy” the only way to do it is to allow Google and ChillingEffects.org to publish my name publicly in relation to the takedown.
If I go through with it and the infringing party really is a total psycho cyber-stalker, they will now have more information and might just decide to track me down and do harm to myself, my property, or even someone associated with me.
That is beyond unfair and also goes against the legal provisions of data centers around the world. If some web site started using my protected content I could simply submit an abuse report to the data center that hosts the web site, and the ONLY party that will need to know and confirm my identity is the data center.
In fact, anyone who runs a web site knows this – if a complaint is sent to your upstream provider and they have been supplied with sufficient proof of ownership and infringement, then your data center / host will demand that you remove the content from your web site within a certain amount of hours or else they’ll shut down your site. They will NOT disclose the identity of the complainent to you (and for good reason!). As long as there is sufficient proof of ownership and infringement, the host / data center must comply with the LAW and resolve the situation.
If you were to ask your data center / host “who is complaining about me” they, BY LAW, can NOT disclose that information to you. (And again, for good reason).
This is not some flimsy / light argument. The reason I’m even posting here because I have a friend who is dealing with a real case of what I’m describing. She has a web site (on which she does not disclose her identity, and has privacy on her domain registration) and on that site she publishes copyright protected intellectual property. Recently a blogger.com user started linking to a bunch of things on her site and eventually taking her copyright protected graphics and images and using them in his blogger posts. This offender is a total psycho and that is easily confirmed by reading the things he posts on not only his blogger account but also on various discussion forums. The individual sounds dangerous and unstable in the things he types.
So in order to put a stop to the abuse and infringement being perpetrated via the psycho’s blogger account, my friend must submit the DMCA and then agree to have her identity be published so that this psycho can potentially track her down and potentially become a threat to her safety. Seriously??
How will Google and Blogger and ChillingEffects.org defend themselves when someone ends up in the hospital or dead over a psycho who didn’t like being DMCA’d?? (With lawyers and fine print of course).
But seriously, I’m not kidding – I have a friend who is being abused and infringed upon by a blogger user, but she is scared to death to submit the DMCA because it will disclose her identity to the infringer who just happens to appear to be a dangerous psychopathic cyber-stalker!
How is that fair at all?
I can see that the popular opinion in these replies is that anyone who submits a DMCA takedown but does not want to be publicly identified must be a coward, but I’d like to hear from some grown-ups on here who can see the potential danger involved in a woman trying to protect her intellectual property while at the same time being cyber-stalked by the offender who is using her content on his blogger page.
I’ll join the minority here and speak up – THE PRIVACY OF THE RIGHTS HOLDER SHOULD REMAIN IN-TACT, SO LONG AS THEY CAN PROVE TO THE ISP/OSP ABUSE DEPARTMENT THAT THE CLAIM IS ACCURATE. IT IS NOT FAIR (nor safe! nor legal!) TO DISCLOSE THE CLAIMANTS IDENTITY IN ANY CASE OF CYBER CRIME.
Blogger’s / Google’s policies should not be allowed supercede Federal law nor FCC regulations, expecially in case where the victim’s safety and well-being could be at stake. Blogger / Google / ChillingEffect are putting those who wish to protect their intellectual property at risk of much worse potential crimes.
It sickens me that nothing has been done to put Google / Blogger / ChillingEffects in their place when it comes to this. If the burden of proof can be satisfied to the abuse department of the service provider, then that should be the end of it without any disclosure of the identity of the complaint.
Just like all of you here have a right to report a spammer and that spammer can be stopped (once the complaint is verified as legitimate) does not have the right to know you did so, you all should be able to protect your web estate and have it removed from infringing sites without having your identities disclosed publicly (nor to the offender) in conjuction with the DMCA submission.
All REAL providers / data centers abide by the law. Why should Blogger and Google and ChillingEffects be exempt? The only “policy” that was “agreed” to was by the offender, not the victim.
Google / Blogger / ChillingEffects is basically saying “hey, if you don’t want your property back, we’re going to have to expose you to the theif”.
There’s a reason for the two-way mirror in a criminal lineup. It’s called protecting the victim of the crime.
Re: Why identity should not be disclosed
But seriously, I’m not kidding – I have a friend who is being abused and infringed upon by a blogger user, but she is scared to death to submit the DMCA because it will disclose her identity to the infringer who just happens to appear to be a dangerous psychopathic cyber-stalker!
If her livelihood can be so easily ruined by any dangerous psychopathic cyber-stalker who wanders along, she should probably revise her business model. Also, crafting laws to meet the needs of every fringe case can be dangerous. Just because this happened to one person, we should prevent Google from publishing DMCA information? I’m not saying it’s not a problem, just that the solution could be even worse.
Re: RISK OF HARM
I guess people will have to decide just what their copyright is worth to them.
Or, stated differently, how much money needs to be in your wallet before you will try to disarm an armed robber? By trying to disarm them, you are exposing yourself to danger.
“…who just happens to appear to be a dangerous psychopathic cyber-stalker!”
Appearances can be deceiving.
Not sure how you go from blogger to stalker.
If you are afraid of a dark alley, do not walk down it.
If you go for a restraining order, will the police tell the person who they are being told to stay away from?
american laws
amarican goverment needs to stop interfering with the things the rest of the world does, i hate the fact that they work in my way when im trying to find stuff on the internet. let them bully their own inhabitants. nobody in the hole world supports this stupid shit they caused
Odd
What is really strange is Google also forwards to Chilling Effects DMCA requests that they *reject*.
Getting claimant info when not published?
On this subject, kind of, as a Counter-Claimer recently I’ve had issues getting details of the Claimant, are the hosting site that receive the claim obligated to give me details of who the claimant is and how to contact them?
I believe the claims against me were malicious, and no counter-claims have been followed up with action, but cannot pursue the matter without details of who it was, and the site fails to reply to my requests for the claimants information, so where do I stand on forcing them to give me the info??
Cheers.
THIS FUCKING SITE SUCKS, SO HOW BLOCK ALL THIS SHIT MY OPERA BROWSER????
Google DMCA
Surely the notice is written by the claimant, and the contents “writing” is owned by the claimant even after he has sent it, therefore he can prevent google from publishing his “written” work/notice?
Google DMCA
Surely the notice is written by the claimant, and the contents “writing” is owned by the claimant even after he has sent it, therefore he can prevent google from publishing his “written” work/notice?
Only if it’s subject to copyright, which a legal notice probably is not.
i have rescind my DMCA complaint
I have the same problem.
I request google to erase a picture from picasa account because it was personal picture and i forgot the gmail password. I explain in my email to google why that picture is danger to me and my family. After one month i found the password and i delete the picture, but Google already sent my complaint to third party “chilingefects.org”.
So one day i was googled my name and the complaint that i made to Goggle was there on chilingefets site. There was a problem because i sent to google my full name my telephone number and that personal family problem (i had to explain to them why that picture is hurting me and my family, and unfortunately i told them the truth). And all my explication is now released to the public.
In October 2012 i had rescind my DMCA complaint and the chilingefects.org has erase my complaint from there site.
But now in february 2013 is there again.
The problem is what i wrote to google is the truth but can hurt my reputation if people will google my name and will read that complaint.
And once i rescind why is again there. When i rescind my complain is like i never made it, in the first place, so why are the people from chilingefects still posting my complaint?