Copyright As Censorship: WSJ Identifies Hundreds Of Bogus News Takedowns; People Blame Google Rather Than Copyright

from the place-the-blame-correctly-please dept

For years, the Copyright Office has been working on a report that is expected to be released sometime soon, about whether or not the DMCA's Section 512 "notice and takedown" regime needs to be changed. The big Hollywood and recording industry lobbyists have been gearing up to push for new rules, a la the European Copyright Directive, that put even more liability on intermediaries. Of course, what they really want is to force Google and Facebook to just hand them some cash because they've failed to adapt their business models while those two companies have thrived. Those legacy copyright-focused industries have already been pushing for things like mandatory licensing and "notice-and-staydown" rules, whereby if something that was taken down once gets re-uploaded, the hosting site becomes liable. Indeed, the industry already seems to have political support for some of these changes.

What's odd, however, is how little attention people seem to be paying in most of these discussions to whether or not we need to fix the DMCA in the other direction -- to fix for the fact that the notice-and-takedown provisions of the DMCA are regularly used for censorship, even of news. Late last week, the Wall Street Journal had a very thorough article (possibly paywalled) detailing how they found hundreds of news articles that were taken out of Google's search due to what appears to be bogus DMCA takedowns. After contacting Google about this, the company said that it had found approximately 52,000 news articles that had been deleted from its index via bogus copyright notices:

After the Journal shared its findings with Google, the company conducted a review and restored more than 52,000 links it determined it had improperly removed, she said. Google said its review identified more than 100 new abusive submitters, declining to discuss individual cases.

Think about that for a second. While we frequently hear Hollywood insisting that (1) copyright is never used for censorship, and (2) that Google is too permissive in allowing infringement, this simple case is showing just how wrong that is and how serious an impact that can have. When important news stories are being censored as an illicit form of a "right to be forgotten" that should concern all of us (not to mention raise some 1st Amendment questions about the DMCA):

When a Colorado man, Dak Steiert, faced state-court charges of running a fake law firm in 2018, he sent Google a series of copyright claims against blogs and a law-firm website that discussed his case, claiming they had copied the posts from Mr. Steiert’s own website. That wasn’t true, the Journal determined, but Google erased the pages from its search engine anyway.

Last year, Mr. Steiert, who didn’t respond to requests for comment, pleaded guilty in Colorado state court to one count of false advertising in his business. The Colorado Supreme Court closed his practice. The articles remained invisible in Google searches until the Journal flagged the cases to Google, which then reinstated the links.

Later in the article, they detail one trick used by some to delete articles: copying the articles to a blog, and then changing the date to make it look like theirs was first, and the real version came later and is infringing:

Financial-news site Benzinga fell victim to a common tactic to trick Google: backdating. Someone wanting Google to hide a webpage will find a little-trafficked blog and post a copy of the content from the legitimate webpage. After backdating the plagiarized post, the complainant will file an electronic notice with Google claiming the real article is a copyright violation.

Benzinga, after publishing an August 2015 article about financial difficulties at publicly traded Amira Nature Foods Ltd., began getting emails demanding it take the story down, said its managing editor, Jason Shubnell. The emails came from three different names, including a Richa Parikh who wrote that the Amira article was “spoiling our online reputation” and offered to pay Benzinga to remove it, according to a copy of an email the Journal reviewed.

Benzinga largely ignored the emails. In 2018, Google wiped the Benzinga story from its search results after a blog masquerading as CNN made a copyright claim. Mr. Shubnell said Benzinga wasn’t aware Google had hidden its story until the Journal contacted it, adding: “There was nothing wrong with the actual content of the article.”

Of course, over the past few years, we've certainly seen similar scammy attempts to abuse copyright law to remove stories. Revenge porn scammer and pretend politician Craig Brittain famously tried to get a ton of news articles about his past behavior removed from Google via bogus DMCA notices, and, in the last few years, we've seen a cottage industry pop up of "reputation management firms" that use dirty tricks, including fake DMCA notices and faked legal filings as a way to get stories delisted from Google.

While the WSJ article is very well researched and reported, and highlights this huge problem, my one complaint with it is that it barely acknowledges how the real problem here is the structure of the DMCA 512's notice and takedown structure -- which is heavily one-sided. Under the rules of 512, if you receive a takedown notice, you don't have to remove the content, but the legal pressure and liability is heavily weighted in that direction. If you remove the contested content, you are then (mostly) free from any copyright liability. If you refuse to remove the content, you are not. And while you might still prevail should a lawsuit be brought and you can make use of other defenses, the 512 safe harbor means that you'll get out of the case faster and easier if you just remove the content (and you're much less likely to be sued).

But, if a platform removes content in error? Well, there's no liability at all. And, while there is 512(f) of the DMCA that provides some theoretical legal liability for those who issue bogus takedowns, in practice the courts have largely rendered 512(f) moot. Add to that the already imbalanced nature of copyright's "statutory damages," which allow for up to $150,000 in damages for each infringed work (even if you can't show any actual damages), and the scale is heavily, heavily tilted towards censorship.

Just to review: a DMCA takedown strongly encourages content to be removed from the internet, even absent any actual infringement. There is almost no punishment for those who send bogus takedowns. There are strong legal liability reasons for recipients of notices to take content down upon receipt, and no corresponding liability for making the wrong call in taking down work that wasn't infringing. And the potential amounts of liability for leaving something up can be overwhelming. All that adds up to a law that is almost perfectly designed to encourage censorship.

Indeed, this rather unique aspect of the DMCA's notice-and-takedown provision is why academics have been pointing out that this law is frequently repurposed as a "general-purpose privacy and reputation" protecting law despite it not being designed for that (and the fact that if it were, it would clearly violate the 1st Amendment).

So, if I had one complaint about the WSJ piece, it is that it brushes over these structural flaws in the law, and that leaves many to believe that the faulty takedowns the WSJ discovered are somehow a Google problem, rather than a problem with copyright law today and the DMCA 512 specifically. Indeed, watching the discussion about this article flow through Twitter, it seemed that many wanted to blame Google for these mistaken story removals. That seems kind of silly. Indeed, of all the internet platforms out there, Google has historically been among the most aggressive in reviewing takedown notices and pushing back on bogus ones (and even sometimes suing abusers). Indeed, the few times that people have tried to remove Techdirt stories via bogus DMCA copyright claims, Google has always refused.

Yes, you can point to the 52,000 stories that Google has reversed itself on and reinstated and say the company should have done better -- but that gets back to the whole impossibility theorem when you have to do content moderation at a massive scale. Mistakes are going to be made, and that's especially true when you have a professionalization of the scamming via these sketchy reputation management firms, which explore many different ways to fool Google, utlizing the extremely unbalanced nature of the law itself.

Unfortunately, though, when a story is positioned this way, it would not surprise me to see even some Google haters who want to make copyright law worse, use this very article as an example of why 512 should be made worse, not better. Anything to blame Google, I guess, even when the actual problem is with the law itself.

Filed Under: censorship, copyright, dmca 512, dmca takedowns, news, reputation management, search
Companies: google


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  • icon
    Samuel Abram (profile), 19 May 2020 @ 7:41am

    Re: Twitter

    Indeed, watching the discussion about this article flow through Twitter, it seemed that many wanted to blame Google for these mistaken story removals.

    Well, Twitter is where reasoned discourse goes to die. Having spent my time there, very rarely will I see people with smart takes.

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

  • icon
    Anonymous Anonymous Coward (profile), 19 May 2020 @ 9:09am

    When for us means them not you

    "For years, the Copyright Office has been working on a report that is expected to be released sometime soon, about whether or not the DMCA's Section 512 "notice and takedown" regime needs to be changed. The big Hollywood and recording industry lobbyists have been gearing up to push for new rules, a la the European Copyright Directive, that put even more liability on intermediaries."

    While I have no illusions that the Copyright Office will do anything that demeans its power and will more likely do something that increases its power, I still wonder who is speaking for more reasoned approaches? It is hard to imagine that bureaucrats will embrace logic and/or parse Article 1 Section 8 Clause 8 in any way that will actually benefit "...the Progress of Science and useful Arts..." for the people rather than the (ahem) temporary rights holders when lobbyists are 'enticing' politicians and maybe even Copyright Office employees in a different direction. Who speaks for us?

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

    • icon
      Samuel Abram (profile), 19 May 2020 @ 9:22am

      Re: When for us means them not you

      The closest thing we got from the © maximalists (and their captured © office) was that they wouldn't lobby for longer term extensions. That being said, I agree with you and there needs to be a more powerful "public domain" lobby, e.g. EFF and Public Knowledge.

      On a related note, remember when the president of ASCAP sent out a newsletter railing against EFF, PK, and Creative Commons? It was at that point when I decided to go with BMI instead to earn royalties (not that I think BMI had clean hands, but to my knowledge, they hadn't done something blatantly stupid as rail against artist-friendly organizations like Creative Commons).

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

  • identicon
    Anonymous Coward, 19 May 2020 @ 10:02am

    Conflict of interest

    it barely acknowledges how the real problem here is the structure of the DMCA 512's notice and takedown structure -- which is heavily one-sided.

    As a content producer, the WSJ has a vested interest in keeping the DMCA as it is (if not extending it further). Don't expect mainstream news outlets to publish a story critical of the DMCA. They'll blame anyone or anything else before attacking that.

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

  • identicon
    MathFox, 19 May 2020 @ 10:04am

    Liability

    A very simple way to make DMCA notices less interesting for abuse is to award statutory damages to the alleged infringer. Let's say $150 for a voluntarily withdrawal; $15000 + lawyers fee if the notice is withdrawn after a court case.

    To prevent abuse of the abuse system; falsifying notices is fraud and doing so risks imprisonment.

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

    • identicon
      Anonymous Coward, 19 May 2020 @ 10:17am

      Re: Liability

      For things like YouTube videos and their monetization all going to the DMCA filer, add 10x the monetization to the video owner for DMCA notices deemed abusive.

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

    • icon
      Federico (profile), 19 May 2020 @ 11:04am

      Re: Liability

      This would be possible under the (terrible) article 17 of the EU copyright directive 2019, thanks to the "redress mechanism" at 17(9), if member states got their act together.
      https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019L0790&from=EN#017. 009

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

      • icon
        Scary Devil Monastery (profile), 20 May 2020 @ 1:46am

        Re: Re: Liability

        "This would be possible under the (terrible) article 17 of the EU copyright directive 2019..."

        As per usual the "redress mechanism" will likely end up being a thick wad of legalese which translates to demanding the factually impossible as a prerequisite for achieving redress.

        "...if member states got their act together."

        XD

        ...that'll be the day.

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

        • icon
          Federico (profile), 20 May 2020 @ 1:55pm

          Re: Re: Re: Liability

          Yeah, it's quite unlikely for anything good to come out of it, but some states are getting creative. There's a small chance that some sensible (public or semi-public) out-of-court mechanism with low/zero legal costs will end up being instituted in some small state while the MPAA is distracted.

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

  • icon
    That Anonymous Coward (profile), 19 May 2020 @ 10:35am

    Gee lets blame the company rather than the completely lopsided law that is being abused at every turn.
    Google could fix this is they wanted to... they just don't... said by a dying media who is sure they can swat these little upstarts down and become the news power house they once were.

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

  • identicon
    Anonymous Coward, 19 May 2020 @ 11:11am

    No ad revenue should go to a filer of YouTube videos until the YouTuber has filed dispute resolution notice or else decided not to fight the dmca notice. Youtube should take a few false dmca claimers to court especially in a case where the claim is designed to hide illegal acts or bad info in the news. about a person Eg someone who committed fraud
    or acted as a patent troll

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

  • identicon
    Anonymous Coward, 19 May 2020 @ 12:56pm

    And what of the culture of fake takedowns itself? At this point, it certainly is a culture, not just lone bad actors taking the obvious advantage.

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

    • icon
      That Anonymous Coward (profile), 19 May 2020 @ 1:27pm

      Re:

      But **AA's PROMISED that no one would ever do this.
      And to support their position they threatened to sue the Lumin Project for letting us peons see the absolutely shitty notices that were being sent out.

      Unless I missed something in the DMCA I can;t figure out why Google is doing any of this, the notices are supposed to go to the site & host... not a search engine that hosts nothing on their property.

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

  • icon
    Koby (profile), 19 May 2020 @ 1:17pm

    Monetary Incentive

    I like the explanation of the financial aspect: there's a huge risk for the hosting company if it doesn't take down your content, but no risk if it does take it down. Is it any wonder why companies like Google operate the way they do?

    Still, I would like to see another business decision as exemplified by IBM-- they always fight every lawsuit unless IBM realizes that they are seriously in the wrong, so they don't settle. While obviously a different situation with Google, might such a policy cut down on bogus claims and actually save it money in the long term?

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

  • identicon
    Anonymous Coward, 19 May 2020 @ 1:50pm

    Yes, you can point to the 52,000 stories that Google has reversed itself on and reinstated...

    52,000 were noticed by the WSJ and brought to Google's attention. How many more are there, waiting to be noticed?

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

  • icon
    ECA (profile), 19 May 2020 @ 3:21pm

    Still think..

    we should demand the RIAA/MPAA to do the work...LET hollywood pay for the monitoring of YT..
    Then have a 2nd group Check how they are doing.

    Invite others that complain, to come over and see allt he workers.. AND all the complaints that have to be sorted to.
    Let them work for 1 day, and then ask how they would do the job and verify the data...AND how to speed it up..

    WHO likes non-tech persons that Think they know Anything about tech?

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

    • icon
      That Anonymous Coward (profile), 19 May 2020 @ 10:33pm

      Re: Still think..

      won't make an impression in their terrified reptilian brains that can imagine a baby hearing an unauthorized song might cost them 22 trillion dollars in profits.

      they do understand money, if they had to give Google a dollar for every single bad url in a notice they would improve their shit ASAP.

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


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