Bogus DMCA Takedown Targeting Indian Copyright Blog Demonstrates The Problems Of Notice And Takedown

from the censorship-in-action dept

If you’re unfamiliar with it, the SpicyIP blog is a wonderful blog covering issues related to copyright and patents in India. We’ve linked to it a bunch over the past decade. And now it’s going through something of a rite of passage for sites on the internet: the absolutely bogus takedown notice. In this case, it was informed by Google that a certain page on the site was to be de-indexed following a DMCA notice claiming that SpicyIP was infringing on the copyrights of Saregama, a large Indian music label. The DMCA notice, helpfully found at the Lumen Database, shows that the organization had sent a list of 99 URLs that it claimed infringed on:

The sound recording or other musical works /song titled APNI TO JAISE TAISE sung by KISHORE KUMAR written by PRAKASH MEHRA and music composed by KALYANJI ANANDJI being made available for streaming and/or download without license/permission from Saregama India Ltd.

Out of those 99 URLs, SpicyIP’s, was definitely one. Except that SpicyIP URL was clearly not at all infringing. It was, instead (as you might expect) an analysis of a copyright dispute over the Bollywood song in question. So, at least they identified the right “song” but nothing in a blog post discussing a legal copyright dispute magically makes that blog post infringing itself. SpicyIP rightly notes just how problematic this notice-and-takedown process can be in leading to outright censorship:

Even if SaReGaM ?correctly? identified 98 infringing links, is the takedown of a lawful post a legitimate casualty to the process? What if the post was a criticism of SaReGaMa?s or Google?s policies, or critical of the legal process?

The present instance is the result of the US Digital Millennium Copyright Act, (S. 512) which implements a ?notice and takedown? regime for intermediaries to remove copyrighted content. The provision rests intermediary safe harbour for publishing putatively infringing content upon the expeditious removal of notified links, and subject to examining any counter-notice, explained in more detail here.

The Copyright Act (S. 52) and Copyright Rules (R. 75) in India, incidentally, have a similar procedure, which creates a ?notice and takedown? regime for intermediaries which host ?incidental or transient? links to copyrighted content, which includes a counter-notice mechanism with the right to reinstate the content in the absence of a court order within 21 days. Unfortunately, it is unclear what intermediaries fall within the scope of this procedure, and in the absence of such clarity, the Delhi High Court has created a separate regime for certain intermediaries in Myspace v Super Cassettes. This judicially created regime is rather vague and does not include even the minimal procedural safeguards available under the Copyright Rules.

Regardless of the form of notice-and-takedown, it is apparent that placing an obligation to police copyright infringement on intermediaries create perverse economic incentives on private parties like Google or YouTube to over-comply and take down legal content. This is not solely attributable to the intermediaries? practices themselves, but the policy and legal decisions which are created and are supposed to to strike a balance between access to knowledge and copyright protection in the digital age.

SpicyIP admits that “it’s funny” that such a bogus takedown would target a copyright law blog, with people who can easily respond, but the same is not true for many other on the receiving end of such a takedown notice. As SpicyIP notes:

Yet, had it happened to a non-lawyer, or even someone who had ceased to take interest in their old blog, as it often does, it would result in the permanent removal of public information from an index which serves as the gateway to the internet, due to the ?mistakes? of private parties whose interests do not coincide with public access. What does this mean for the future of access to knowledge?

The blog further points out that this problem is likely to get worse, not better. We’ve already been talking about how Article 13 could soon require automated takedowns and content monitoring, India is exploring a very similar law to put more liability on the platforms to not allow any infringement at all. In such cases, the problem becomes much, much worse, and some content may never be allowed to be uploaded at all, even if it’s perfectly legal.

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Companies: saregam, spicyip

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Comments on “Bogus DMCA Takedown Targeting Indian Copyright Blog Demonstrates The Problems Of Notice And Takedown”

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30 Comments
Guru Medi Tae-Shun says:

Oh, my god. ONE more anomaly of mistaken -- NOT "bogus" URL.

Sheesh. It’ll be handled.

You CANNOT use this to undermine all DMCA. That’s your constant and so far utterly fruitless goal. You’ve written this story how many times with only changed names? — And that’s a few hundred anomalies out of the BILLIONS of links to stolen content, kids. Keep the scale, and then all that Techdirt has ever shown is STILL just insignificant decimal places with leading zeros.

You need some actual substantive argument against DMCA. This and all similar mistakes ain’t.

some content may never be allowed to be uploaded at all,

Not exactly true: I think if it’s "filtered" you could only mean "publicly displayed", else how it’s checked?

Rico R. (profile) says:

Re: Oh, my god. ONE more anomaly of mistaken -- NOT "bogus" URL.

You’ve written this story how many times with only changed names?

This would be a valid criticism if this hasn’t happened a lot of the time. This is a true story, and if the same negative thing keeps happening because of a law, maybe it’s time to look at revising that law.

And that’s a few hundred anomalies out of the BILLIONS of links to stolen content, kids.

Copying is not theft. And even if it were, how do you know that there are billions of links that are infringing? Techdirt’s written about Google receiving takedown notices for links not even in their index. And just because most takedowns aren’t contested (i.e. with a counter-notice submitted) does not mean that those takedowns are automatically legitimate.

You need some actual substantive argument against DMCA. This and all similar mistakes ain’t.

Really? Copyright holders are given a massive tool to silence all kinds of speech, infringing or not, all by screaming "infringement" in a takedown notice. Remove copyright from the equation, and it’s equal to censorship. As I’ve said above, this IS a legitimate and substantive argument against the DMCA. Even if these mistakes are as minuscule in amount as you say, it’s the fact that they’re still taken down that is important.

Not exactly true: I think if it’s "filtered" you could only mean "publicly displayed", else how it’s checked?

Technically, you’re correct, but to echo your own words, I think you need some actual substantive argument to make the case for upload filters. The fact that it still must be uploaded in order for some computer program to determine if it’s infringing or not ain’t it.

Mason Wheeler (profile) says:

Re: Oh, my god. ONE more anomaly of mistaken -- NOT "bogus" URL.

And that’s a few hundred anomalies out of the BILLIONS of links to stolen content, kids. Keep the scale, and then all that Techdirt has ever shown is STILL just insignificant decimal places with leading zeros.

Nope. The truth is actually exactly the opposite of what you just said. According to Google, 99.95% of all DMCA notices are not only bogus, but one specific flavor of bogus. Everything else (including all of the other kinds of bogus DMCA notices!) is included in the last 0.05%. Notices targeting legitimate infringement are so rare as to be statistically almost nonexistent.

Legitimate takedowns truly are the anomaly; the DMCA takedown program is used entirely (or close enough as makes no difference) for abuse, and therefore needs to be done away with.

TKnarr (profile) says:

Re: Oh, my god. ONE more anomaly of mistaken -- NOT "bogus" URL.

No, it’s not a mistake. Even a casual look at the page in question would’ve told Saregama that the material clearly wasn’t any they owned the copyright to. Not just that it wasn’t infringing but that they didn’t own any copyright interest in the material to be infringed on. They either filed their notice knowing that it was falsely claiming ownership of someone else’s copyright, or they failed to check what the content of the targeted page was as the law requires them to do. Either way, it wasn’t a mistake.

James Burkhardt (profile) says:

Re: Oh, my god. ONE more anomaly of mistaken -- NOT "bogus" URL.

We can in fact take this example, in conjunction with the others, to highlight errors with the DMCA notice and take down process. The goal is not to overturn the entire law, nor to overturn the entire notice and take down process, but to reform the process. To question if a different way might reduce the take down of legal content while achieving the goals of the notice and take down system. To wit – Notice and Notice systems as suggested by Mike in the past.

Your premise, that this anomaly is intended to be evidence to undermine the entire DMCA, only works if small shifts in extrajudicial proceedings to reduce the presumption of accuracy in one party’s claims undermines the entirety of the law. And if that is true, then the law is about bypassing the judicial system, which then impacts the Due Process clause, and is unlikely to survive a judicial review. You may wish to be careful about your hyperbole there.

Mason Wheeler (profile) says:

Re: Re: Oh, my god. ONE more anomaly of mistaken -- NOT "bogus"

And if that is true, then the law is about bypassing the judicial system, which then impacts the Due Process clause

No, that’s what it’s always been about, completely independent of the idea you’re predicating it upon. That was the explicit intent of the law: publishing interests didn’t want to have to prove to a court of law that content on the Internet was actually breaking the law before they could get it declared infringing and taken down, because they claimed it would be too big of a hassle.

So they came up with an alternative that stomps all over sound jurisprudence and Due Process, tried to get Congress to pass it, got rejected by Congress because it’s terrible jurisprudence, snuck off to Geneva to get it inserted into a trade treaty, then went back to Congress and said "you have to pass this now because trade obligations." And we’ve been dealing with the collateral damage ever since.

James Burkhardt (profile) says:

Re: Re: Re: Oh, my god. ONE more anomaly of mistaken -- NOT "bog

So, my normal rhetorical style is to assume good faith discussion by those I debate. That second paragraph specifically was to build up to that final sentence, where I highlight the natural conclusion of the line of argumentation he used.

The DMCA is more than extrajudicial enforcement mechanisms. That was a big portion of my argument, that debating the take down process does not undermine the entire DMCA, and to claim otherwise is to claim the DMCA take down mechanism is to only feature of the Bill.

While I can’t think of anything in the DMCA worth saving right now, to claim that the entire law goes away if you water down take down provisions is wrong. I am not defending the law or its legal value. But the extrajudicial remedies are only one portion of the law.

Mason Wheeler (profile) says:

Re: Re: Re:2 Oh, my god. ONE more anomaly of mistaken -- NOT

to claim that the entire law goes away if you water down take down provisions is wrong

I wasn’t making that claim. I was saying that when you said "And if that is true, the law is about bypassing the judicial system, which then impacts the Due Process clause," that this is already true independent of any other predicate being true.

James Burkhardt (profile) says:

Re: Re: Re:3 Oh, my god. ONE more anomaly of mistaken --

For the entire law to be about bypassing the judicial system, removal of the extrajudical remedies would buckle the law, which was largely the argument of the troll I was responding to.

There is more to the law, sections that do not establish extrajudical remedies violating the due process clause. The takedown provision is about bypassing the judicial system, which is why we refer to it as an extra judicial system.

But both you and the OP are arguing that those sections are completely worthless without the extrajudicial take downs, which was the premise I was debating.

Mason Wheeler (profile) says:

Re: Re: Re:5 Oh, my god. ONE more anomaly of mist

Most guilty defendants would rather have their content taken down (bypassing the judicial system) than being sued.

…so what? If they’re actually guilty of piracy, why are we taking their preferences into account? (And for those who aren’t, a fee-shifting provision in the applicable law would go a long way towards eliminating false accusations.) If that’s the societal price to pay to get rid of the massive collateral damage that the current system causes, we should all be happy to pay it!

ECA (profile) says:

Re: Oh, my god. ONE more anomaly of mistaken -- NOT "bogus" URL.

I like your comment except the Word AINT isnt a good one..there are better words to use..

Even with your comment, When DMCA is sent out to Billions and 1% are invalid..
Where are your numbers in the face of your comment.
Even for this site, where are the numbers..

Myself I would think its Over 1%..closer to 10% for this automated idiocy..
Using simple word search or comment search, is F’ing stupid. As the mention of a comic book, can be flagged.
How do you flag a picture or music, without LOOKING to see if its the correct one?
Another thought is PROVING ownership of the CR..
There have been links to Groups that HAD PERMISSION that got hit with DMCA, for no reason, and had to PROVE they had permission, OVER the DMCA notice.
Demanding proof from 1 side and not the other, is WRONG.
Rhis is like a Neighbor hearing Screaming from your house and Calling the cops because you are beaing your wife or dog…Being Arrested…and having to Prove that all they heard was the TV playing loudly.. And Why was the perosn close enough to hear it??

WHO is supposed to spend the TIME to review and Prove What??

In most of these cases, the personification of the police, even if they are to evaluate the situation, is to Arrest everyone and the proof is in the courts… the cop can do nothing except Arrest people..

Love to do a DMCA claim against a Major server for using CR Server software.. Take Down everything they have, or has someone already dont that??

Gwiz (profile) says:

Re: Re:

You need some actual substantive argument against DMCA. This and all similar mistakes ain’t.

This IS a substantive argument against the DMCA, in my opinion. When there is a conflict between copyright and freedom of speech, I will choose free speech everyday and twice on Sundays.

To paraphrase William Blackstone and Benjamin Franklin:
It is better 100,000 copyright infringements go unpunished than that one innocent person’s free speech is abridged.

TFG says:

Re: Re:

This was addressed in the article:

"SpicyIP admits that "it’s funny" that such a bogus takedown would target a copyright law blog, with people who can easily respond, but the same is not true for many other on the receiving end of such a takedown notice. As SpicyIP notes:

Yet, had it happened to a non-lawyer, or even someone who had ceased to take interest in their old blog, as it often does, it would result in the permanent removal of public information from an index which serves as the gateway to the internet, due to the ‘mistakes’ of private parties whose interests do not coincide with public access. What does this mean for the future of access to knowledge?"

Anonymous Coward says:

Re: Re:

And just where are you going to get the people to hear an appeal? The companies that send notices by automated means do not have the staff available to check all the links picked up by an algorithm, and have mainly automated their response to counter notices to keep the link down.

It takes a large public outcry on social media to get the attention of companies to bad notices, and so on;y the tip of that iceberg ever gets reversed.

Rocky says:

Re: Re: Re:

And just where are you going to get the people to hear an appeal? The companies that send notices by automated means do not have the staff available to check all the links picked up by an algorithm, and have mainly automated their response to counter notices to keep the link down.

Well, the people sending the notices could always do their due diligence which they have been screaming for ages about that the hosting sites never do – which would be considerably easier for them since they exactly know what content they (allegedly) own.

Instead they have shifted the whole process of policing their rights to third parties that short circuits the normal legal process of establishing infringement.

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