Google’s DMCA Problem

When it comes to the DMCA, it seems that Google has been nothing but a headache. In the past four years of this site, I have lamented Google’s lack of email contact information, developed a hack to get around that, I have faxed a 17-page DMCA notice to their Adsense department (which is separate from Blogger), accused Google of intentionally misleading content creators on how to file a notice with Adsense and consistently given Google low scores for its handling of the DMCA.

However, it appears that Google’s poor handling of the DMCA does not stop with the frustrations of rights holders. A series of articles, first in the LA Weekly last month and last week on Ars Technica, have looked at Google’s handling of DMCA takedowns from the perspective of those that are the subject of them, in these cases, music bloggers that use their Blogspot service.

The criticism is that, once a notice has been filed, Google does not always seem to notify the blogger it has pulled the content from and, when the blogger becomes aware, doesn’t provide a copy of the takedown notice. This, in turn, makes filing a counter-notice (to have the material put back) almost impossible.

It seems that, when it comes to the DMCA, Google has a resoundingly negative review from both sides. This is something that Google needs to address as it strives to become not only the largest search engine, but one of the largest hosts. With so many new services expanding Google’s function as a host of content, not merely an index, these issues can not be ignored.

But fixing these issues is not going to be easy for Google and it is going to require that they completely rethink their DMCA strategy, something they have been unwilling to do up until now.

Bad All Around

The problem with Google’s DMCA regime starts when one seeks to file a notice. If you visit their Blogger DMCA page, you see quickly that Google does not provide an email address for submitting a DMCA notice. The reason is that they require, at least from most notices, that the filer provide a handwritten signature, thus causing them to limit their contact methods to fax and snail mail.

However, this handwritten signature requirement is something of a perversion of the law. When asked in the past, Google has said that it is because the DMCA, in Section 512(c), requires “A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

The problem is that the law clearly states that an “electronic signature” is adequate for a complete notice and the ESIGN act of 2000 defines an electronic signature as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” This means that something as simple as typing your name at the end of an email or indicating a signature with a “/s/” should be adequate for a DMCA notice, meaning that emailing a notice is not just possible, but easiest on everyone.

The vast majority of Web hosts and search engines agree with this interpretation as do the attorneys I’ve spoken with, including many who dislike the notice and takedown system.

However, once these hurdles have been overcome and a successful notice has been filed, it seems that Google has changed its policy of notifying bloggers and letting them remove their own content in a less-destructive way. Now, Google deletes the posts themselves, making them more like other hosts, and, in some cases, doesn’t seem to be notifying the bloggers they are pulling from.

But then comes the real problem for bloggers. Once the content has been removed, getting a copy of the notice is almost impossible. Google, reportedly, has been stonewalling bloggers that ask for copies of their notices. Google does have a long-standing relationship with Chilling Effects, a joint venture of several non profits and universities that is working to build a database of searchable database of cease and desist letters as well as DMCA notices, which it has promised to forward all of the DMCA notices it receives to for inclusion.

But despite this promise, it is clear that the volunteer-staffed service has fallen well behind. Only five notices have been posted since the beginning of the year and none were posted in January or so far in March.

The problem with this is that, without a copy of the notice, it is impossible for a person who has had works removed to file a counter-notice. Filing a counter-notice without being 100% certain that the original notice was filed in mistake opens one up to a wide range of legal problems that didn’t exist with just a takedown.

Thus, without a copy of the DMCA notice, there is no viable way to correct a false or erroneous takedown. It isn’t possible to know who demanded the takedown and what the specific work involved was (could be the post, an image in it or a link).

In short, Google has built a DMCA system that equally screws content creators and legitimate users. Likely, the only people benefiting from this system are spam bloggers, who have extra protection from having a DMCA notice filed against them and those that with to abuse the takedown process, as they can do so with little worry about being discovered.

Fixing the Beast

It is clear that Google’s DMCA system is hopelessly broken. Not only is the process for filing a notice unnecessarily difficult and legally dubious, but the way Google handles its own customers is worrisome and makes the system prone to abuse.

The two problems, however, are almost certainly related. Google’s demand of a handwritten signature makes it difficult for rights holders to file a notice and virtually ensures that such notices will be in a non-text-friendly version. This increases the time it takes Google to process notices and makes it harder for Google to forward on the information that they get.

The problem is that DMCA handling, like all abuse resolution, is overhead and smart companies are going to look for ways to trim such expenses, especially during down economic times. The fact that Google is cutting corners with its DMCA resolution process shouldn’t be a shock to anyone. They are stripping down their process to the bare minimums of their interpretation of the law, but, if they changed their interpretation of the law to fit with other hosts, they might save money with their DMCA process.

Though allowing plain text DMCA notices would likely lead to a rise in the number filed, it would also make it easier to handle the notices on Google’s end. They could more freely copy, paste and use the information in the notice. This would be helpful both in locating the links that need to be pulled down and in forwarding the relevant information to those who have had their posts removed. That would mean faster resolution for copyright holders and better service for Blogspot users.

With text-based notices, especially if Google provided a form-based system, much of the process could be automated, including the notification of the user. Privacy could be respected (when necessary), users would have the information they need to file counter-notices when appropriate and Google would spend less time, and thus less money, on each notice. It seems like an easy win-win-win.

However, Google has always refused to do this, at least for the general public. Either Google stands by its rather unusual interpretation of the DMCA or it is afraid of a perceived onslaught of notices that would result from easy filing and wants to fight email/form DMCA notices the best it can.

Either way, it is creating a situation where everyone suffers. As long as Google continues the status quo, there will be no winners.

Conclusions

Google is and always has been something of a strange beast when it comes to copyright issues. Both the largest search engine and one of the largest blog hosts, they’ve always had an approach to the DMCA that is all their own. No one, quite literally, handles these disputes the same way.

The sad truth is that, as large as Google is and as great as they are at many of the things they do, this is one area that they have consistently gotten things wrong. Companies only a tiny fraction of Google’s size, such as Automattic with WordPress.com, have gotten these issues just about perfect without breaking the bank.

The question isn’t whether Google can fix these problems, but if it is willing to do so. Perhaps now with their flawed DMCA system impacting their own users as negatively as other copyright holders, change may finally be possible.

Of course, especially with Blogger, Google has promised that it’s going to improve its system before, especially as it pertains to spam blogs. Sadly, none of that change has materialized as of yet.

Hopefully 2009 can be the year it happens.