If Google Shouldn't Apply EU's 'Right To Be Forgotten' Everywhere, Why Should It Apply US DMCA Takedowns Globally?

from the make-up-your-mind dept

Last week, Techdirt wrote about Google’s refusal to comply with France’s order to apply the “right to be forgotten” — actually, a right to be removed from search results — globally. Perhaps because the issue seems easy to understand, many have offered their opinions on the rights and wrongs of Google’s move, both for and against. Writing in The Guardian, Julia Powles has provided a good summary of the two main positions. First, without the “right to be forgotten,” the internet would become a “database of ruin“:

Some meaningful rights to delist old, irrelevant or incorrect information from monolithic databases are important, in order to give us a small, imperfect measure of privacy and dignity. They offer a minor speed bump on asymmetric routes of power, like the one that says you have no rights or say over Google?s presentation of search results.

The opposing camp, which includes Jonathan Zittrain, says we must not give in to this natural desire to remove links in this way, because doing so would create a “Swiss cheese internet”:

Even if we might see some merit in Europe?s data laws, Zittrain is not at all happy about them being used to carve holes out of Google search. To counter the database of ruin argument, he says we are creating a ?swiss cheese internet?.

The nub of Zittrain?s concern is that the practice of shaping what stays and what goes from the database is hopelessly individualistic. By allowing the delisting of information that is incorrect, outdated or harmful for individuals, who knows what else will follow. It sets us on a path, Zittrain claims, where the internet becomes the lowest common denominator result of what all the world?s countries and courts are prepared to leave behind.

Both of these positions, and countless variations on them, have been expounded many times over the last few days, and Techdirt readers will doubtless have their own views. But Powles goes on to make a new and interesting point that connects the battle over the “right to be forgotten” with the copyright industry’s war on sharing:

Google?s argument that “no one country should have the authority to control what content someone in a second country can access” is appealing, but it is also misleading. Currently, US copyright law is relied on to remove content from Google?s global index, no matter where an alleged incident occurs, and at a rate at least three orders of magnitude greater than partial delistings under data privacy laws. The respective rates of approval are 97% for 345 million copyright requests and 41% for one-quarter million privacy requests, in a comparative period.

Google’s behavior here suggests that it is more important to enforce copyright takedowns globally than to do the same to protect personal privacy. That means the issue of “the right to be forgotten” is even larger than it seems at first sight. As Powles rightly notes:

The complex challenges involved in global enforcement of laws demand us to ask what kind of society we want to live in. Are trademark and copyright law really that black and white? Is it appropriate for global brands to block sites on the other side of the world, which are neither ambiguous in their origin or misleading to consumers, and may engender creativity and meaning in their own right? Can we balance, with equal force, human rights as much as economic rights?

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Comments on “If Google Shouldn't Apply EU's 'Right To Be Forgotten' Everywhere, Why Should It Apply US DMCA Takedowns Globally?”

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67 Comments
Anonymous Coward says:

If Google Shouldn’t Apply EU’s ‘Right To Be Forgotten’ Everywhere, Why Should It Apply US DMCA Takedowns Globally?

One is a law sponsored by a powerful industry lobby, the other is politicians pandering to the people. The fist is therefore backed by the threat of endless lawsuits and enquiries, the latter results in the minor pin-pricks when individuals can afford to go to law.

Sheogorath (profile) says:

Re: Re: Re:

@ Ifroen: The US was already a signatory to the Berne Convention when it passed the DMCA into law, is what.
@ Richard: The fact that a part of the Sherlock Holmes canon is still under (unreasonably long) copyright in the US didn’t stop me downloading the whole lot here in the UK.
Seegras said: There’s no “takedown upon notice” in there.
That wasn’t my point and you know it.

G Thompson (profile) says:

Re: Re: Re:3 Re:

Though that is NOT how Google is currently applying the DMCA requests.

You are either stating that google is an index’er only and doesn’t actually host data to restrict you finding it by other means which then allows a ‘right of privacy’ as well since google is ONLY delisting their index and not the actual content.

or you allow for the fact that applying a USA legislative instrument worldwide such as the DMCA and not a European legislative instrument is a hypocritical stance of major proportions.

Richard (profile) says:

Re: Re:

Glyn, Glyn, Glyn… The Berne Convention is very nearly global, whereas the Right to be Forgotten exists only in Europe.

Under (only) the Berne convention the procedure for delisting infringing material is much more burdensome on rightsholders than that provided by the DMCA. In short it requires them to prove their case in front of some kind of independent arbiter (eg a judge). Much material is delisted under the DMCA which would remain available if the rightsholders had to jump through the hoops that are required under normal legal procedures.

Also US copyright law is more restrictive than the minimum requirements of the Berne convention so there is much material – eg the later Sherlock Holmes stories – that are public domain in most of the world but not in the USA.

This situation is set to get worse over time because of the peculiar history of US copyright law. Initially it was less draconian than the Berne convention – but in the transition some crazy special rules were invented which go way beyond what the Berne convention requires.

So you are wrong and Glyn does have a point here.

Seegras (profile) says:

Re: Re:

The Berne Convention says its death+50 years:

(1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death.

With movies it’s either publication or production +50 years:

(2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making.

For photographs it’s production+25 years.

(4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work.

There’s no “takedown upon notice” in there. Instead you have to have a judge order it. And it doesn’t cover library catalogs or other “search engines” that only tell you where a work can be found.

Dingledore the Flabberghaster says:

Why does Google really care?

They already have a process for removing a huge number links every day, so why would a few more be a problem?

The argument against the deletions is one of completeness and “all or nothing”. But that is founded on the presumption that Google’s database is as complete and perfect as can be at this time: which it isn’t. There are undoubtedly huge areas that aren’t covered, huge databases of primary source data not crawled, and, conversely, huge databases of rubbish data that are scanned and considered to be fact. So, presuming a reasonable set of controls on issuing orders to remove such data, removing a comparatively small number of links won’t automatically make the database any better or worse than it currently is.

So could it be that it’s really the personal data, rather than copyrighted, that Google really cares about? And why would that be the case?

Maybe it’s because their business is targeted advertising?

Walid Damouny (profile) says:

Re: Why does Google really care?

There is a reason why it matters for DMCA requests. If we look at the principals that make laws they are the right and wrong that we as humans agree upon. Copyrights holders were given a human created artificial monopoly because we wanted to create a compensation mechanism for works of art that enrich society. There is no natural form of compensation for arts like movies if they are allowed to be copied using a cassette duplicator or a cheap digital device. Artists compensations would be avoided and we as a society will have less arts since art is nearly always costly. Hence the DMCA requests.

Switch to the right to be forgotten. This is another artificially created “right” since there is no natural right to be forgotten. What I know about someone is known to me and I can communicate it. No one will agree on barring a human being from speaking the truth, even an ugly truth. If you look at what is allowed to be delisted from search engines you see that news agencies are delistable too. So the right to be forgotten is a truth hiding mechanism. One can’t legally block the BBC from publishing a story about a person but that person can legally fool people into believing that that story doesn’t exist. In essence the right to be forgotten is a work-around to reduce journalistic freedoms without touching news agencies but rather the delivery mechanism.

Anonymous Coward says:

Re: Re: Why does Google really care?

Artists compensations would be avoided and we as a society will have less arts since art is nearly always costly.

Go visit YouTube, Jamendo, Podiobooks, Flickr etc., as the negate your arguments, including artist compensation. Th only people who benefit from strong copyright are the studios, labels and publishers, and they are notorious for compensating artists badly, unless the artists have the popularity to be able to demand a decent payment up-front.

Anonymous Coward says:

Re: Re: Re:4 Why does Google really care?

I was replying to your point:

Artists compensations would be avoided and we as a society will have less arts since art is nearly always costly.

So quit dodging a response to a point you made.

Also DRM has nothing to do with whether or not a DMCA notice is issued, and one of the problems that the artists on those platforms face is bog corporation using DMCA notices to take down their work because they confuse it with their own works, or object to fair use.

Walid Damouny (profile) says:

Re: Re: Re:5 Why does Google really care?

“defenestrate” hmm, big word. You are the one who injected artists and compensation because you don’t have a point about the right to be forgotten which by the way has nothing to do with art and compensation. The article is pointing out the act of delisting online material and asking why they are treated differently, not art or compensation for art, end of story.

Sheogorath (profile) says:

Re: Re: Re:4 Why does Google really care?

Actually, people who put their own work on YouTube have been targeted by legacy gatekeepers abusing the ContentID system, including one person who uploaded videos of their performance of Public Domain classical music, a man who had his original music pulled by Orchard, and someone else who had a video containing no sounds except birdsong they recorded themselves had their vid pulled down by the same company. Take a look through the history of this website and see for yourself.

Dingledore the Flabberghaster says:

Re: Re: Why does Google really care?

there is no natural right to be forgotten

Well there is if a country, or group of countries, decides to create a law that says there is.

And what on earth is a ‘natural’ right? Certainly, copyright cannot claim to be a ‘natural’ right.

I’m not agreeing or disagreeing with the either position, but I fully agree with the point made in the Grauniad article that suggests that, if they agree to do it for DMCA, they can do it for RTBF.

Walid Damouny (profile) says:

Re: Re: Re: Why does Google really care?

If there is a decision involved in creating the “right” then by definition it is not natural. You have a right to know by virtue of you being able to know the things that are around you. However someone coercing you into forgetting does not happen all by itself naturally, you are coerced into it.

Richard (profile) says:

Re: Re: Why does Google really care?

rtists compensations would be avoided and we as a society will have less arts since art is nearly always costly. Hence the DMCA requests.

The last sentence is a non-sequitur. Your argument maybe justifies the existence of copyright, with a relatively short term. It does not justify the dmca mechanism which allows rightsholders to get things taken down with little evidence and no risk to themselves if they get it wrong. This mechanism only exists in one country (the US) and yet it affects everyone in the world.

Now I don’t particularly like the “right to be forgotten” but it can be used to hide lies and half truths as well as the truth and arguably is useful to ordinary people caught up in newsworthy situations for reasons outside their control so I think it does have more merit relative to the DMCA than you give it credit for.

Walid Damouny (profile) says:

Re: Re: Re: Why does Google really care?

It is incorrect to say that the last sentence is non-sequitur. DMCAs cover works of art, not free speech. DMCAs don’t attempt to delist journalism, they delist Beyonce, Game of Thrones and the their ilk which are not truths, half truths or even lies. However the right to be forgotten tries to hide those potential truths, half truths and lies which makes them a tool for the perpetuation of a false narrative. A disagreement is not grounds for censorship just because someone benefits from that censorship. As for the DMCA, I was neither giving it credit nor taking it away. I was pointing out how unrelated it is to the right to be forgotten by grokking the justification that brought it into existence.

Richard (profile) says:

Re: Re: Re:2 Why does Google really care?

It is incorrect to say that the last sentence is non-sequitur. DMCAs cover works of art, not free speech.

Even if there was a clear distinction between works of art and free speech (which here isn’t) it is still a non-sequitur to say that the arguments for copyright justify the DMCA.

However the right to be forgotten tries to hide those potential truths, half truths and lies which makes them a tool for the perpetuation of a false narrative.

Ever heard of the Church of Scientology? It is well known for using the DMCA and other copyright claims to suppress criticism.

Anonymous Coward says:

Re: Re: Why does Google really care?

“One can’t legally block the BBC from publishing a story about a person but that person can legally fool people into believing that that story doesn’t exist.”

And when that story is false and should be stricken because BBC didn’t bother to properly validate the information it got from its sources? What then? The libelous material should remain up for all time and treated as if it’s a true accounting? No. Incorrect material should always be removed and replaced with the correct material where applicable.

Anonymous Coward says:

Free speech

State sanctioned censorship of truthful infromation about private individuals violates free speech.

The EU ‘right to be forgotten’ is really only an attempt to grant convicted criminals, celebrities and politicians a delete button against information held by third parties.

And this is categorically wrong.

Walid Damouny (profile) says:

Re: Re: Free speech

I think you are reading too much into the 95% number. If you further read the article you see that a third of the requests are rejected and that Google is the entity making the decisions. Since a third is rejected that means that not all requests are deemed unfaithful to the nature of the data and also Google does not have the ability to discern whether the information published is irrelevant or incorrect yet it is the decision arbitrator.

Walid Damouny (profile) says:

Re: Re: What about Hitler?

OK you got my bait. Historically important is a very subjective measure. What is historically important to you is not important to someone else. Similarly what is published about a person’s conduct is important to some people and unimportant to other people. A person committing business fraud can hide that fraudulent behaviour and go do the same thing again. This is historically relevant info about the person that also negatively affects the entity wanting to do business with the fraudster.

Anonymous Coward says:

“If Google Shouldn’t Apply EU’s ‘Right To Be Forgotten’ Everywhere, Why Should It Apply US DMCA Takedowns Globally?”

Because Google is actually based in the US.

Plus, the DMCA provisions, for all their flaws, represent a better compromise than the EU’s right to be forgotten laws. The EU doesn’t even want Google to tell a site when a search result gets removed under RTBF. But under the DMCA, the site not only gets notified by Google, they can send a counter-notification to get it back up.

Plus the US has one of the better fair use laws, meaning less material will be taken down than if they used most other countries’ laws.

Plus, copyright notices (assuming they are valid) represent material that the site has no right to show in the first place. Under RTBF, the site is showing material which they had every right to publish.

Plus RTBF is dumb. There is no “right” to be forgotten. There can’t be. My right to remember overrides it.

Chad says:

Re: Re: simple

Because europe has already agreed to provisions of the dmca in order for certain material to be made available in the eu. This is an attempt to mix public information (right to be forgotten) with privately owned entities. This is like saying you won’t finish a deal you already made if someone else won’t follow a rule they never agreed too.

Anonymous Anonymouse says:

Re: Re:

My right to remember overrides it.

There is a reason why offences are/can be expunged from your rap sheet after a certain time (depending on how severe that was).
For the same reason people may feel entitled to have certain content removed from the web. If you really wanna dismiss RTBF entirely, you have to dismiss expunging rap sheets first.
(keep in mind that rap sheets are for the somewhat significant things. Real life does provide you a host of ways to screw up, most of which won’t show up on any rap sheet.)

JK (profile) says:

Parent-Subsidiary Control

I don’t actually know anything about Google’s subsidiary structure, but it seems a reasonable assumption that Google proper has control over the actions of Google France. So, for DMCA requests, the US doesn’t even need jurisdiction over Google France. They can just use their jurisdiction over Google proper, and command Google proper to tell Google France to do whatever; notice-and-takedowns, e.g. This is only an order on Google proper, and so no jurisdiction over Google France has been exercised. In other words, the US’s legal jurisdiction over Google proper links with Google proper’s “corporate jurisdiction” (which term I just made up for the sake of this argument) over Google France, to give the US an “effective jurisdiction” (again, made up) over Google France.

The converse is immediately false. Google France has (presumably) no such ability to control Google proper, beyond friendly (i.e. not at all authoritative) suggestions. Thus, with respect to RTBF requests, there is no corporate jurisdiction which a French court could use to turn its legal jurisdiction over Google France into effective jurisdiction over Google proper.

Google might could skirt DMCA requests in other countries by removing the control. I.e. by freeing its subsidiaries to act independently and without parental oversight, Google proper would then be powerless to enforce any US-ordered actions on them, DMCA or otherwise. But this would fragment their platform and probably is contrary to the performance of a well-tuned search engine. Also, notwithstanding a lack of notice-and-takedown (or any secondary liability provisions) in Berne or TRIPS, most countries (including the EU) have come to more or less similar conclusions as the US, and Google would still be bound to DMCA-like obligations in those territories via local, not US, law.

Anonymous Coward says:

Re: Parent-Subsidiary Control

The issue is that Google’s legal headquarter (for tax reasons) is in Ireland, meaning France has direct control over it (through the EU).

Anyway, if the US wants to force DMCA on us, let’s force RTBF on them. RTBF doesn’t apply to politicians, public figures or criminals anyway, so there’s no risk, and in contrast to DMCA, it’s actually useful for the people.

JK (profile) says:

Re: Re: Parent-Subsidiary Control

The thing in Ireland is not the legal headquarters of Google Inc, the parent company. Rather, it’s Google’s European headquarters. Which is subsidiary to (and thus has no control over) Google Inc, the US company. Google Europe’s presence in Ireland conveys no European jurisdiction onto its parent in the US. See also https://investor.google.com/corporate/certificate-of-incorporation.html

“if the US wants to force DMCA on us”

The issue is not the US forcing anything on you. The issue is the US forcing something on a US company, and that US company then forcing that thing onto its subsidiaries, including those over in Europe. If a company were wholly located within the EU, with no American parent, the DMCA couldn’t touch ’em. Much like if a company were wholly located within the US, with no European parent (e.g. Google), the RTBF couldn’t touch ’em.

If you guys don’t like having the DMCA shoved down your throats (and frankly I don’t blame you, it’s an awful law), well great: your recourse is to disband Google’s European subsidiaries. This is certainly within Europe’s power. As is RTBF’ing those subsidiaries. Forcing Google US to do anything, is not.

Anonymous Coward says:

the reason is pretty obvious, i think, Google is shit scared of getting into it in court with Hollywood and the entertainment industries, just as much as they are scared of mixing it in court with Google. and let’s face it, after the recent revelations of what those industries were up to with AG Hood, in order to force Google to do even more than it already is for those industries, i can see why. there would be so much crap come out about what the industries have done and are doing/going to do in order to ‘protect’ themselves, regardless of what happened to any other industry or person and regardless of whether it was legal or not! the shame is that if it actually happened and the industries and Google were to go for that court battle, it would be damned hard to find a judge that hadn’t already been put on the industries payroll or wasn’t so bias as to be able to give clear verdicts purely on evidence!! if it did happen, at least we would learn officially what we already know of the industries as being complete lying, cheating assholes and also what we could and couldn’t do! it may even help to take some of the ‘full of piss and importance, we rule the world’ attitude from the USA!

Nomad of Norad says:

Personally, I am of the strong opinion that some point in the near future, say, a couple decades or more from now, people are going to look back at this Right to be Forgotten ruling and rule, and are going to say “Wait the freaking hell were you thinking, judge?!? What the [string of severe expletives deleted] were you thinking?!?”

Wendy Cockcroft says:

Re: What???

It’s about the perceived right to demand that Google delist links to websites, etc., containing information about certain people that they don’t want there, e.g. a newspaper article about a drink-driving conviction from twenty years ago. Some people worry that such information might come up at, let’s say, a job interview.

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