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.

What is Google's "Humility Algorithm™"?

[Grant Crowell's Interview with Michael Roberts - October 30, 2010.]

GRANT: What is the "Google Humility Algorithm?"

MICHAEL: Please understand that I am answering these questions with the presupposition that it does in fact exist because my assertion is based on my empirical observations... I believe it really is out there!

Originally I called it “Google's Humiliation Algorithm”; however, I realized that I might have been jumping to conclusions because in context “humiliation” could imply that Google is deliberately humiliating the subjects being Googled. I opted instead for “Google's Humility Algorithm” to give Google the benefit of the doubt with respect to intent; humility is considered by right minded people to be a noble state of being although I would argue that it should be voluntary. I believe the humility algorithm is a provision within the Google search formula giving what would otherwise be unmerited high search rankings for a small number of web pages containing derogatory or demeaning words in close association with proper nouns such as personal and business names.

GRANT: How does it occur?

MICHAEL: I don't know; I would expect that Google guards its algorithms like KFC guards its secret recipe. Notwithstanding, although I cannot see the wind, I see its effects. Based on my observations and the tests our team have run, if I were to hazard a guess I would say there is a list of “humility words; nouns and adjectives that bring the hypothetical algorithm to life. These words include ponzi, scammer, abuser, whore, tax cheat, playboy, felon, conviction, indictment, bankrupt, molester, fraud, cheater, pyramid scheme, etc -- I'm sure you get the idea. There are also some web sites apparently designated as humility domains by default and they include the likes of ripoffreport.com, complaintsboard.com and, interestingly, blogspot.com.

GRANT: What is the reason for it occurring?

MICHAEL: I sincerely hope that Google's intentions were pure and that they were simply trying to ensure that the search results were diverse and balanced; lest genuinely bad individuals and organizations use expensive SEO techniques to bury legitimate dissent, competition and whistle blowing.

GRANT: What effect does it have on Google's search results (and search relevancy)?

MICHAEL: The humility algorithm seems to have special reservations for positions 3 and/or 4 on page one of Google search results. My close observations suggest that these high-ranking results have almost without exception, some type of a humility keyword in close proximity to the search subject's name. This year's "Caffeine" release of Google search has shifted the weight somewhat with humility search results being more random between #1 through #4 on page one and now it seems that #1 on page two has been reserved for humility results, but not always.

GRANT: What examples can you provide as evidence (can cite both existing and past)?

MICHAEL: I cannot really go into too much detail here because much of our work is based on real-life cases for clients. In some instances we have individuals literally on the verge of suicide because of the problems this was causing; unfortunately the child of one of our clients succumbed to the pressure several months ago. That being said, now that your readers have been told what patterns to look for, it won't take long to verify my assertions. And I would invite any brainiacs out there who have a better head for maths than I, to do some serious testing. I would appreciate being privy to the results.

GRANT: If you are correct, what do you think this is this accidental or intentional on Google's part?

MICHAEL: I believe the algorithm is very deliberate; but it is the intent that I am more interested in. In other words "humility vis-à-vis humiliation", or "don't be evil vis-à-vis evil is relative".

GRANT: If intentional, what would you argue is Google's motive or motives?

MICHAEL: If it is a humiliation algorithm [i.e. evil], then it could be argued that Google could benefit when users decide to click on a Google AdWords link to a humiliation victim's competitor once the user has read the negative results for the business he or she found in organic Google search results.

GRANT: What are the problems this creates?

MICHAEL: That is a whole 'nuther conversation which stretches from mild emotional annoyance for some individuals right through to suicide and breakdowns. I have personally witnessed these two extremes and everything between in the last three years. For businesses, the same emotional toll for the individuals involved through to insolvency; once again I have seen it all. I would even go so far as to say that the Wild-Wild-Web combined with the US Congress' existing subsidy for Internet libel, through Section 230C of the Communications Decency Act, is a clear and present danger to the national security of the United States. A competitive market driven economy can no longer function on a level playing field in these conditions; in many vertical markets the only businesses that can win are those willing to stoop to either “doing evil” by smearing their opposition with "googledoo", or looking the other way when it is within their power to act. I am referring here to the many thousands of tear soaked letters sent to Google et al, begging for the removal of egregious allegations from search engine results. These are usually met with canned template responses encouraging the victim to simply create more online content with positive spin to dilute the negative postings.

I find such narcissistic corporate cultures to the reprehensible on at least two levels.

(1) The very law that gives ISPs the immunity to turn a blind eye to such requests is in fact titled “Good Samaritan” protection, clearly implying that it was Congress' intent that the recipients of such letters would do the right thing.
(2) Such letters encouraging the creation of more online content serves the purpose of creating more advertising platforms for AdWord campaigns; victims effectively become slaves at worst or indentured servants at best to Google by creating more of what it devours and profits from, information.

GRANT: In your opinion, would this put Google in a position of increased liability? Or are they fully protected by the CDA?

MICHAEL: This would be a good opportunity to make it very clear that I am not an attorney, although I consult for many of them in these matters. As such, I would rather defer to the wisdom of suitably qualified, but more importantly qualified professionals to express such opinions.

GRANT: What do you think needs to be changed and why?

MICHAEL: I would start with the human heart and the nastiness epidemic, but that comes only from a miracle of God. Otherwise, if I could wave a magic wand I would like to see some common sense amendments made to the communications decency act which still gives generous immunity for Internet service providers but conditional upon reasonable attempts to comply with the intent of the “Good Samaritan” clause which is found specifically in TITLE 47, CHAPTER 5, SUBCHAPTER II, Part I, § 230(C).

GRANT: What questions do you think Google needs to answer for in light of this evidence?

MICHAEL: My questions would be simple:
(1) “Does the humility algorithm exist, and why?”

(2) Do your family members receive the same cookie-cutter responses when they ask you for junk results to be removed from your search index?

original article found here

OUR THANK YOUS TO THE SUPPORTER WHO SENT THIS TO EOPC!

Sued for Refusing to Help a Cyberstalking Victim

By Victor Fiorillo

Earlier this week in Philadelphia’s Federal Court, 25-year-old Temple grad Cailin Arena and her friend Patricia McWilliam of South Carolina sued a John Doe they say has been cyberstalking them and publishing their copyrighted photos and writings without their permission. In the same suit, they name Internet giant Google—which hosts the perpetrator’s blog, Korean Dating Bloggers, as well as a fraudulent Google Plus account set up in Arena’s name—for failing to do anything about it.

In recent years, the women have traveled to Korea and Japan to teach English to grade-school students in those countries. Arena, who has been dating a Korean man since 2010, is currently teaching in Japan, where her boyfriend resides, while McWilliam teaches in Seoul, South Korea. Both women have blogged extensively about their overseas experiences, and these blogs, which they’ve deleted, appear to be the original source of the screen-grabbing stalker’s material.

According to the lawsuit, which was filed by Arena’s father, Montgomery County attorney Charles Arena, the problems began on January 3, 2012, when John Doe sent an anonymous email to Arena’s supervisor containing a link to sexual content and stating that Arena was responsible for it, and another email to Arena, which read, “Sorry to say but you’re an ugly brown something. You probably also smell bad. Have fun in Japan, I hear the radiation isn’t bad in Fukushima. Why not buy some vegetables from there for you and your ugly brown children.” Also that day, John Doe is said to have posted racist commentary about Arena in an online forum associated with her job.

One week later, John Doe created Korean Dating Bloggers, using Arena’s full name and her employer’s name as a website tag, so that his blog would come up in Google searches for her. On the site, he posted screen shots from her now deleted blog, copyrighted pictures she says he stole from her actual Google Plus account, and negative commentary about her. He also created an impostor Tumblr account and Google Plus profile in her name. He reached out to contacts in her actual Google Plus circle, linking them to Korean Dating Bloggers. The allegations relating to John Doe’s actions toward McWilliam are similar.

The plaintiffs contend that the defendant’s use of their copyrighted material violates the Digital Millennium Copyright and that Google has a responsibility to remove it. They and their attorneys have repeatedly contacted Google headquarters, demanding a resolution.

At first, Google responded that they do not remove allegedly defamatory, libelous or slanderous material unless requested by a court order, even though the plaintiffs’ claims were regarding copyright, not defamation.

Then, Google responded with a message that the plaintiffs call “nonsensical.” In it, Google stated that the company decided not to take action “based on our policies concerning content removal. We would like to assist you, but we don’t currently disclose this information. Should it become publicly available in the future, you may find it on our site at http://www.google.com/about.html.” Getting nowhere with Google, they filed the suit.

As for the identity of the blogger, the plaintiffs believe they know who he is and that he resides in Pennsylvania. They hope that the court will compel Google to reveal his true identity and intend to file more actions today. “The law hasn’t caught up with technology,” says Charles Arena. “This is scary. What do you do when someone seeks to do irreparable harm to you online?”

A Google spokesperson was not immediately available for comment.

original article here