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The DMCA on 7 Advertising Networks

By Jonathan Bailey • Sep 27th, 2007 • Category: Articles, DMCA, DMCA Seven, Legal Issues, Personal Experiences

Advertising networks are very important allies in the fight against plagiarism and content theft. As one of the most popular revenue streams for scrapers and other spammers, they often unwittingly bankroll many of the content thieves who plague the Internet.

However, advertising networks are not covered by the DMCA. Since they are not hosts and are not information location tools, such as search engines, they don’t fit neatly within the paradigm of the law. Their liability for infringement is, at best, untested.

Despite that, many advertising networks do accept DMCA notices and rely on the notice and takedown provision for handling complaints of copyright infringement. However, since the legal status of these networks is different, we are bending the rules a bit and judging the sites on their general abuse reporting procedure if one specifically for copyright does not exist.

Show how do they fare? Let’s find out.

Format: Fax
Email Address: None
Location of Policy: Google’s DMCA Policy
Registered with USCO: No
Comments: Yet another industry lead by a Google product and thus backed by their shoddy and questionable DMCA system. However, things get even worse when looking at Adsense. Where Google’s other services are clearly registered with the USCO, Adsense is not. Though not a legal requirement, it seems odd considering that Adsense actually has a separate DMCA policy from the rest of Google’s products. Though you might be able to use Google’s regular DMCA agent, I have not tested that since all of the other contact information has also changed including both the fax number and the department. Google makes it a habit of rejecting copyright complaints that don’t meet its standards, even if the site is obviously a spam blog or violates another element of the Adsense TOS. It seems likely that their policy in this area is one of the reasons that Adsense remains so popular with spammers, even after several crackdowns.
Grade: D-

Format: Email
Email Address: copyright at yahoo-inc dot com
Location of Policy: Yahoo’s Copyright and IP Policy
Registered with USCO: Yes
Comments: If you’ve read my previous reviews of Yahoo!, you know that I’m very fond of their policies in this area and their sense of responsibility. As with their other products, the copyright policy is linked at the footer of each page, is very complete and offers a very pain-free means of getting in touch with Yahoo. All in all, they are a leader in this area and, for once, the recycling of a copyright policy is actually a very good thing.
Grade: B

Format: Email
Email Address: jkweston at microsoft dot com
Location of Policy: Microsoft’s Copyright Policy
Registered with USCO: Yes
Comments: We’ve covered the shell game that MSN plays with its DMCA contact information before. The non-clickable link, the unsearchable policy and the buried information. Unfortunately, Microsoft simply rehashes the same policy for their advertising network, currently in beta. In fact, clicking the “legal” link at the footer of the adCenter site will simply take you to the same terms of use that all of live.com uses. Though the policy seems to be robust and well-written, the efforts taken to hide it worry me and frustrate many who have legitimate need to file a complaint.
Grade: C-

Format: None
Email Address: None
Location of Policy: Terms and COnditions
Registered with USCO: No
Comments: This line from their T&C really bothers me: “In order to avoid associations with copyright claims, website publishers may not show Paid Listings in areas such as MP3, Video, News Groups, and Image Results.” Of course, the other thing they do to avoid any association is not have any abuse information anywhere on their site. Even their “Contact Us” page simply leads to their support trouble ticket system, not really appropriate for this. The only email addresses I found are the ones in th left-hand column of the site that go to the support team and sales. There is no obvious way to send in an abuse complaint, copyright or otherwise, and it seems that is very much on purpose. Of course, their above limitations don’t stop spammers and won’t stop most content theft. It just keeps the Viacom’s of the world at bay and shows exactly what role Chitika is willing to play.
Grade: F

Format: Fax
Email Address: None
Location of Policy: Copyright Dispute Policy
Registered with USCO: No
Comments: If finding Easter eggs or completing scavenger hunts is too easy for your kids, have them track down AdBrite’s Copyright Dispute Policy. To find it, you first have to act as if you’re registering for an account on the site, then select all of the text in their terms and conditions, because you can’t read it in their tiny textbox, and then paste it into another program. From there, you’ll find the URL buried deep within. Needless to say, the process could be a lot easier and, worse yet, the policy itself doesn’t even include an email address to contact, just a fax number. As bad as the Microsoft shell game with this information is, AdBrite is much worse and the lack of an email address is downright obstructionist. Though the policy seems to be otherwise complete, I simply can not support such an sneaky effort to hide this critical information.
Grade: D-

Format: Email?
Email Address: service at burstdirect dot com
Location of Policy: Terms of Agreement
Registered with USCO: No
Comments: Burst Media is yet another Web site without any abuse reporting procedures on their site. Though they seem to have a pretty extensive registration process, there’s no way for a visitor to report a site that might have gotten through their inspection process. Though their terms forbid the posting of copyrighted material, there is no clear means of reporting an infringer and the above information is purely guesswork. However, it is the account they filter all other contact through so it seems likely that it would work for this purpose. As discouraging as lack of a policy and general distance from the issue is, it seems to be pretty typical for sites in this field.
Grade: F

Format: Form
Email Address: None
Location of Policy: None
Registered with USCO: No
Comments: Finally, though TLA may be controversial among SEO gurus for its link purchasing system, it is also worrisome for me due to its lack of an abuse system. Though their user agreement does forbid the posting of infringing material, it is merely one word in a list of general things that a member can not do. It is not backed up with any meaningful abuse reporting method and the best approach I could find is to contact “Other” using the form. That is hardly ideal for a network that has the potential to attract seedy elements from time to time. All in all, TLA’s policy, or lack thereof, borders on irresponsible and reckless.
Grade: F

Conclusions

If you’ve ever wondered what good the DMCA does, consider these sites. Looking over the results you see that there are three Fs and two D minuses. Five of the seven sites either have no policies or have extremely flawed ones.

Only two, Microsoft and Yahoo, have have decent reporting procedures and when Microsoft is nearly at the top of the pile in this area, there is something very wrong.

What is also clear is that large advertising networks with other hosting products typically just recycle their old policies, for better or worse, and and those without such preexisting policies didn’t bother to create a new one.

It appears as if most of these networks want to distance themselves as far as they can go from these complaints, both by indemnifying themselves from all such infringements and by not easily accepting complaints. This will, without a doubt, only feed the plague of scraping and content theft by making it easy for spammers to stay in business.

All in all, once you get an account with one of these services, unless you commit click fraud or some other crime against the network itself, it would seem to be very difficult to get your account cut.

I’m sure that many spammers will be happy to hear that.

What the Ratings Mean

A - A complete policy that goes well above and beyond what is required. Often shows real innovation.
B - A solid policy that is well-thought out and is very complete. Shows consideration for submitters and users.
C - An average policy, follows the law to the letter but doesn’t go out of its way to help those submitting a notice or its users.
D - A policy that, while mostly complete, still raises severe ethical and/or legal questions.
F - An incomplete policy that fails to follow the DMCA or local laws in a severe way.

Pluses or minuses are used to indicate how the where a host fits in relationship to other hosts in that that tier.

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Jonathan Bailey is The Webmaster and author of Plagiarism Today, which he founded in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. He is also a consultant to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies.
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Viewing 7 Comments

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    I've filed at least a half a dozen DMCA complaints through Adsense, and though it's wonky that I have to do it via fax, they do eventually respond. (The longest has been 8 days, the shortest is two.) I've never had to file with any of the other groups.

    I can tell you all about filing with eBay when my images are stolen for use in auctions though!
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    With a C, MS as per your definition is just average. Just goes by the book. If it does this, and, if it is near the top, why do you conclude that something is seriously wrong? Admittedly, they can go an extra mile, but like the other biggies, the bigger you are, the more difficult it will be to monitor would it not? So, logically, only the smaller ones should be used, and when they become big, history will repeat itself.
    This whole matter is getting to be really unmanageable but, that you are trying and advising us is commendable.
    Thank you and keep it up please.
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    Jonathan,

    I like your approach of evaluating the DMCA policies. Have you defined more specific criteria that underly the letter grades? Of course, there's no need to post those criteria here--after all, they might be trade secrets--but it would be interesting to know a little more about your method. Thanks!
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    Cybele: I've worked with Adsense before with similar results. I think I've waited as long as a week for a reply, I'm not sure what causes the wild fluctuations in their response time.

    RS: It's a simple bell curve issue. Microsoft, with a C, should be in the middle of the pack, not at the lead. When I started this series, I envisioned there would be a tall, narrow bell curve hovering on the C range. Instead, it's proved to be very lopsided, centering on the C-D range and favoring the F crowd. Besides, when five out of seven services have severe problems with their DMCA/Copyright policy or no policy at all, there is an issue.

    I guess we'll see how things evolve though.

    Steve: Generally, when I look at these policies, I look for the following things.

    Registration with the USCO
    Complete information on their site
    That the information between the two matches
    A policy to ban repeat infringers
    Full contact information for the DMCA agent
    A thorough explanation of how to file a notice
    That the policy is easy to locate on the OSP site

    If a site is missing two or more of those things, I bump them down to a D. The exception is if the site has a single issue that puts it in direct conflict with a law, such as with Google.

    If a site shows a great deal of thought in one or more areas, I upgrade it to a B. It gets an A if it shows some kind of radical advancement that makes things much easier for Webmasters who need to file a complaint.

    That's a general rundown of the process. Not complete in every regard but it gives you an idea of what I do with each host.

    Hope that answers the question!
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    I enjoyed your post regarding the total and complete unlawful and unethical "head fakes" currently underway at publicly funded technology companies, such as Google, Microsoft, and CNET regarding the DMCA and it's "fair Use", "safe harbor" and "take-down" provisions.

    This is a national disgrace, and I am pleased to see people like you, and the NLPC up in Washington, starting to take note. I have fought this issue for many, many years now and have been completely blown away by the consistent level of arrogance, hypocrisy, greed, unethical business practices, and downright lies demonstated by these so-called industry leaders.

    How anyone could possibly give Google a "D-" is beyond my comprehension. My small graphics development company, alone, has sent them four (4) official take-down notices since May 2007 and have never gotten a formal response. In fact, both the infrignement activity, and the Adsense activity, seems to increase after Google receives notice.

    These are not only civil violations in this country, they are felonies as well. The executive management teams of these companies are also liable under our copyright laws. Why are these laws NOT being enforced?

    Why are individuals and small companies asked to play on an uneven copyright playing field in this country?

    Like the network executive once said many years ago "We're mad as hell ... and we're not going to take this any longer"

    We are in the pricess of organizing several huge legal and publicity actions that are going to put these issues squarely in front of all politicans in Washington. We are going to ask everyone to take a pledge for or aganist copyright protection in this country, before foreign governments make these decisions for us.

    Enough is enough!

    Keep up the good work. There are us out here who appreciate what you do.

    George P. Riddick, III
    Chairman/CEO
    Imageline, Inc.

    griddick@imageline2.com
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    all they exist buy only adsense seems to be most successful one, not because its backed by google but because others are so bad. YPN has dissapointed many people who had jumped on since its early beta days and now they switch back to adsense, adsense ppc got worse with time but thats the only good network out there.
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    George: First off, to clarify these reviews a bit, it's not a review of the backend of these systems, just the front end. I deal with backend issues on the Host Report page. This is more about looking at their policies and how well the sites comply with the disclosure requirements of the law.

    I also agree that there is a lot of room for improvement in the currently law. There needs to be greater defense against false DMCA notices, but also greater incentive to use filtering technology on sites such as Youtube. In short, the current arrangement serves no one.

    As far as Google's response goes, I'm sorry to hear that you've had so much trouble with them. If you want to, you can email me the particulars and I'll see if there's anything I can do.

    I hope that you're doing well and thank you for the comment!

    Water: I wouldn't know, I gave up on the Web advertising game a long time ago...

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