DMCA Takedown & the Digital Millennium Copyright Act

by Michael Roberts

What is the Digital Millennium Copyright Act (DMCA)?

The Digital Millennium Copyright Act (DMCA) is a copyright law of the United States that merges two 1996 treaties of the World Intellectual Property Organization (WIPO). Provisions are made therein to heighten the penalties for copyright infringement on the Internet. It was signed into law by President Bill Clinton on October 28, 1998 after passage by a unanimous vote in the United States Senate on October 12, 1998. Title 17 of the United States Code was amended by the DMCA to extend the reach of copyright while limiting the liability of on-line service providers for copyright infringement by their users.

The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of internet service providers and other intermediaries. It was adopted by the European Union in the Electronic Commerce Directive 2000; the Copyright Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

Use and Abuse of DMCA Take-Down Demands

Digital Millennium Copyright Act takedown demands can be an effective tool for the removal of unprotected, defamatory and fallacious speech from websites and from search engines for search results displayed as a result of searches on a particular subject, person or business. For the most part, search engines and Internet service providers are protected from liability for tort such as defamation and harassment as a result of another law called Section 230 of the Communications Decency Act (if defamation is provided by a 3rd party). This can be incredibly frustrating for victims of the abuse of this safe harbor, particularly in instances where malicious and fallacious reports have been posted on websites such as RipOffReport.com, thedirty.com and CheaterVille.com. In such instances, victims can take advantage of a DMCA take-down demands to both the websites displaying the offending material and the search engines. A word of warning though; if you direct such a take-down demand to websites with low value speech and poor social responsibility records, then you are effectively “telegraphing your punches”. In such instances, stealth might be your best friend, as such, it might be tactically and strategically prudent to limit your DMCA takedown demand to the search engines only. Let’s face it, if it is not on Google it may as well not exist no matter how damaging the allegations.

The safe harbor provisions of § 230C of the CDA do not extend to copyright violations in most instances, although there are provisions for reasonable notice to be given to the offending Internet service providers. Search engines such as Google might ignore take-down demands for defamatory search results linking to defamatory website, such as Ed Magedson’s Rip Off Report, pursuant to the immunity granted to them through § 230C. However, if such a demand is made on the basis of copyright breaches, you may submit a similar take-down, but based on copyrighted material such as photos, images, quotations, or other copyrighted material owned by you, or another party willing to support you in your take-down efforts. If you elect to submit such a take-down demand, I would caution you to completely avoid the defamatory context because it may invite deeper scrutiny by the receiving party such as Google. Consequently, it may be rejected on the basis that the DMCA take-down demand is determined to be a disguise for relief from defamation, which as mentioned does not attract liability to the search engines because of § 230C.

(NOTE: If the copyright demand is for a photograph, then it must be made by the person who actually clicked the shutter! If you are actually in the photograph, then you are not the owner, unless you used a self-timer or tripod, or if you paid a third party to take the photograph in which case you can claim ownership of the photo based on “work for hire”.)

DMCA takedown demands can be directed to Google through the following web form; you are welcome to contact Rexxfield if your problems persist, but for the most part, unless the problem is catastrophic and a clear and present danger to your livelihood is evident, we suggest you try this form first. There’s no need to spend money on our services if you can achieve results by yourself unless the problem is severe:

Google DMCA Takedown Form

If you do not have a copyright breach vector, you might try the same form if the offending webpage is defamatory or harassing. We have seen limited success with this form on that basis, but do not hold your breath.



THANK YOU MR. ROBERTS FOR THIS GREAT ARTICLE

INTERNET LIBEL STATUTES IN THE U.S.A.

Suing Google Doesn't Always Work

by Christopher Danzig

Even stately Englishmen are no match for Google.

I had never heard of Max Mosley until yesterday, when I read he was suing Google in Europe to block all search results regarding his alleged participation in some sort of Nazi sex orgy.

Ironically, when you search for Mosley’s name now, you get a zillion news stories with headlines like “Max Mosley sues Google over ‘Nazi orgy’ search results‎.”

Let’s learn more about Mosley, the former president of Formula One, and his decidedly unsexy legal battle against Google….

From The Guardian:

Max Mosley is suing Google in France and Germany in an attempt to force the internet company to monitor and censor search results about his alleged sado-masochistic orgy.

The former Formula One boss revealed he is taking legal action against Google during his testimony before the Leveson inquiry at London’s royal courts of justice on Thursday.

Mosley is battling to remove from the internet false and libellous references to an alleged “Nazi-themed” orgy and a News of the World video. …

“The fundamental thing is that Google could stop this appearing but they don’t or won’t as a matter of principle,” he told the inquiry. “The really dangerous things are the search engines.”

Mosley is also threatening to sue Google in California.

And this is not the first time public figures have not-so-nicely asked Google to censor search results they dislike. The other obvious case involves Rick Santorum, who made headlines in the fall criticizing the unpleasant top Google result for his last name. In 2003, sex columnist Dan Savage started the bare-bones website, Spreading Santorum, which simply defines his last name as a nasty sexual term, in response to what Savage perceived as the former senator’s anti-gay statements.

In both Mosley’s and Santorum’s cases, the miffed public figures insinuated that Google could eliminate the search results if it wanted to. Santorum claimed his conservative ideology was the reason Google refused to do anything about the search ranking.

But Google does protect itself legally. When it receives specific, court-ordered takedown notices, from the government or individuals, it frequently complies. (If you have ever run searches relating to illegal music or movie sharing, DMCA takedown notifications often appear on the Google search results page.) Mosley even acknowledged that Google has taken down hundreds of references to the allegedly defamatory stories. But the company will not honor personal requests or requests to censor entire search terms.

At this point, Google spokespeople have a pretty tight statement they use to explain their actions. The company’s response to Mosley was almost exactly the same as it was to Santorum:

“Google’s search results reflect the information available on billions of web pages on the internet. We don’t, and can’t, control what others post online, but when we’re told that a specific page is illegal under a court order, then we move quickly to remove it from our search results.”

On a practical level, Tim Worstall at Forbes gives a good explanation of why the act of suing search engines simply creates more stories for them to index:

[A]ny court case arguing that Google must not add to the search engine stories which mention the untrue allegations will be reportable: for court cases and evidence are reportable under privilege. So every time Mosley sues he’s generating more newspaper pieces which Google can, entirely legitimately, add to the index. For they’ve been reported under privilege.

Finding yourself on the Internet for unflattering reasons can be humiliating, especially if the information is untrue. A whole cottage industry has grown up around people trying to prevent their old mugshots from being easily searchable. Even Natalie Portman has said she won’t do nude scenes in movies because she doesn’t want the scenes ending up online.

For better or worse, Google is the gatekeeper for the online world we live in. It would be a completely unfeasible system if people could pick and choose, without a specific legal justification, what kinds of results to allow search engines to index. It is for the same reason news outlets will not remove stories just because someone doesn’t approve of the coverage. I feel bad for Mr. Mosley, but he’s only making things worse for himself. And his attorneys should know better.

original article found here