The move’s timing one day after the Stop Online Piracy Act (SOPA) blackout protests have put this takedown in the spotlight, both as alleged evidence that the act, and its sister act Protect IP (PIPA), were unnecessary, but also dangerous.

However, with the 72-page indictment against Megaupload made public, we have a deeper look at the operations of the controversial site and, for many of us, confirmation that Megaupload appeared to be knowingly and deliberately running a operation that supported piracy.

One of the more interesting elements of the indictment, however, looks squarely at Megaupload’s response to DMCA notices and, specifically, the various ways that it would attempt to thwart DMCA takedowns. These methods not only included selective cooperation with DMCA notices, but also a technical workaround that ensured it was almost impossible to completely remove content from the service.

To understand how this worked, you have to look a bit deeper at the internal workings of Megaupload and how the DMCA filing system worked.

Three People, One File

To understand the problem, let’s play out a simplified scenario that happened regularly on the site.

Three people all want to make the same movie available for distribution using Megaupload. Each upload a copy of the movie to the service and receive a separate access link to it. However, Megaupload, not wanting to waste file storage space, takes a hash of each file and realizes that they are identical. So, rather than storing three copies of the file, all three links point to the same file on their servers.

This is a common practice among file storage serves and even Dropbox does something similar to both speed up uploads and avoid storing duplicate files.

The problem, however, is what would happen when a copyright holder would file a DMCA takedown notice. Rather than, as the law says, disabling access to the infringing work, Megaupload would simply disable the link specifically mentioned in the takedown notice.

The result is that, though the infringing work would appear to have been removed, only the specific link mentioned would have been taken down and all other links to the file would remain valid even though Megaupload had been put on notice that the file itself was infringing. Copyright holders, however, would likely be unaware of this and would just assume that the other links were separate uploads of the file.

As such, it was almost impossible for a copyright holder to remove all “instances” of a file on the service and Megaupload worked to keep as much infringing content up on their service as possible.

This, in turn, was likely a big part of why Megaupload was so popular among pirates.

How Other Cyberlockers Handle Takedown Notices

The reason this is a problem for copyright holders is that most don’t file DMCA notices against a link, but against a file. However, Megaupload would not remove the actual file and, instead, just disabled the link. To the filer, it would appear that the takedown notice was successful even though the file still remained, it’s just that the known link was disabled.

Unfortunately, there isn’t much that a copyright holder can do about this, especially a smaller one. Megaupload, before its closure, got to keep files infringing files available to pirates and save on storage costs all the while appearing to be compliant with the DMCA when, in truth, they were not.

This, of course, turns the attention of copyright holders (and the government) to other cyberlocker-style sites that, almost certainly, have a similar hashing system to reduce storage costs and could easily use the same trick to limit the effectiveness of takedown notices.

To find out how they handled DMCA takedown notices, I contacted half a dozen different cyberlocker services to find out if their system was similar to Megaupload’s. However, as of this writing only two responded and neither were very straightforward with their replies.

Rapidshare, in addition to attaching a broader statement about Megaupload, said the following:

RapidShare employs an anti-abuse team which is responsible for obtaining information on illegal files from rights holders or third parties, carries out independent searches for illegal files, deletes from the servers any files which infringe copyright, and if necessary, blocks user accounts. RapidShare has also introduced a registration process which customers have to complete, anonymous uploads are not allowed any more.

Likewise, Depositfiles chimed in and said:

We are highly concerned by the criminalization of otherwise civil offence. We are looking thoroughly into the case as creating a precedent will change the whole nature of internet services including major fields of hosting, billing and advertizing (sic).

At the moment we may state that our technical platform and communication model is completely dissimilar to Megaupload’s. Sadly at the time of unease we cannot disclose any additional details for publication.

I will add other hosts’ response if and when they arrive.

Bottom Line

All in all, what this means is simple. When you file a DMCA takedown notice, even if the notice appears to be complied with, it doesn’t always mean that the content is truly gone. Though Megaupload appears to be the exception in this area, undoubtedly there are others using the same or a similar technique to thwart legitimate notices.

Fixing this problem will not be easy and, in the meantime, the most rightsholders can do is be aware of the problem and be vigilant against it.

Hopefully a more robust solution to this problem can be found soon and both legitimate file hosting sites and rightsholders can rest a bit easier at night.

However, compared to that earlier announcement, this latest change doesn’t really offer much different at all. Given how much of the post focuses on recapping the existing DMCA policy, it can be easy to overlook what exactly is new.

The answer, for better or for worse, appears to be “not much”, at least not for most of us.

Google’s DMCA Announcement

According to Google, they are instituting two changes to the way they handle DMCA notices for Blogger, those changes include:

1. Streamlined Submission Tool: For rightsholders that file DMCA notices in large quantities, Google has created a new, streamlined tool to make the process quicker and, hopefully, get response time down under 24 hours.
2. Streamlined Counter-Notice Tool: Designed to help users who feel they were on the subject of a false or misguided takedown get their works restored.

To be clear, the bulk of the DMCA process remains the same. For most filers, they will use the same DMCA form that Blogger started using last year and not much will change on that front.

In short, these DMCA changes will only impact two relatively small groups. Those who file bulk DMCA notices, which very few organizations have such a need, especially with Blogger, and those who need to file a counter-notice.

Bottom Line

The odds you’ll be affected by this announcement are fairly slim overall. Unless you’re a major copyright holder or a Blogger user that gets hit with a false DMCA notice, you probably won’t see either of the new systems in action.

The good news on all of this is that Google is still clearly working on refining and improving its DMCA process. It’s a sign of life for a system that hasn’t gotten a lot of attention lately, at least no publicly.

Behind the scenes, I can say that response times have improved for Google Blogger though I’m not always or even routinely seeing the 24 hours they have repeatedly promised to shoot for. That being said, it’s still far better than the previous time frame for removal.

All in all, I wouldn’t consider Google one of the best or most responsive hosts on DMCA matters, but I certainly don’t think of them as the worst anymore either.

Hopefully that improvement trend can continue and both copyright holders and their users can reap the benefits from it.

I’ve also filed at least a couple with Twitter, (and can say that they have improved drastically since my first review) but only over avatars and backgrounds. I’ve never filed a DMCA notice over a tweet and, the few times I’ve been asked to, have discouraged others from doing it.

Simply put, filing a DMCA notice over a Tweet doesn’t make sense and when others do it I’m always left scratching my head. There are just better, more practical ways to deal with copyright infringement through and they require no additional effort.

Too Late to the Wrong Target

The problems with filing a takedown over a tweet are legion, but the biggest is that the length of a tweet, 140 characters max, makes it almost impossible for the tweet itself to be infringing. Short of haikus and links to outside sources, the odds of a tweet being infringing (or even qualifying for copyrightability) are slim.

But, even if you’re targeting links within tweets, it probably isn’t a wise idea. Simply put, filing a DMCA notice with Twitter is a waste of time, not because Twitter doesn’t respond effectively, because of the nature of Twitter.

Consider the following:

1. The Tweet Lifecycle: Most tweets have a useful lifespan of a few minutes to, on the high side, an hour. So by the time you see a link and incur the time and expense to file the notice, it’s already off the radar.
2. Wac-A-Mole: Tweets are meant to be retweeted so odds are that anything on Twitter with traction will have other copies of it out there. One would have to file a notice against all of them and, likely, keep monitoring for a while longer to be truly effective.
3. Easily Reposted: If you are able to kill the only copy of a tweet, it only takes a few seconds to repost it. Even if you only spend a minute filing the notice, they can have the tweet back online in a fraction of that time.
4. Little SEO Benefit: Since tweets don’t rank well in Google, there’s little danger of an old tweet appearing in relevant Google results, competing with legitimate offerings.
5. It Can Blow Up Easily: Twitter is known for spreading news fast, filing a DMCA against a tweet, especially if it is at all questionable one, is a great way to experience the Streisand Effect first hand.
6. The Tweet Isn’t the Problem: Most likely, you’re upset not about the content of the tweet, but a link within it. It is much more effective to deal with the target of that link rather than trying to stop every single tweet.

In short, if you file a DMCA notice over a tweet, your notice is going to arrive too late and at the wrong target. With the nature of Twitter being as it is, filing such a notice is a waste of time and, most likely, money.

There are better approaches to take.

A Better Approach

The best thing one can do if they are tempted to send such a notice is, if there is a link involved, first see what can be done about the subject of the link. In most cases, that content can be removed from the Web, thus making the entire tweet pointless. It usually doesn’t require any more time or effort but does much more to actually resolve the issue.

The simple truth is that you are not going to be able to remove every single mention of an infringement from the Web, it just isn’t practical or productive, Once you can accept that, you can then focus your energies on strategies that are practical and, with that in mind, it’s easy to see why targeting tweets isn’t a productive use of time.

That being said, if a Twitter account, possibly created by a spammer, is doing nothing but spamming out links to infringing material, it is probably wise to take some action. However, in those cases I’ve just reported the account to Twitter abuse and, for the most part, they were taken care of through that process as they are usually also violating other Twitter policies. No DMCA notice needed.

Bottom Line

All in all, one has to keep a level head when dealing with copyright on the Web and focus on being realistic and productive. Chasing down tweets that reference infringing materials is neither.

Targeting the actual infringement, not the tweet, is a better way to spend one’s energy when dealing with these matters. In fact, Twitter can actually be a useful tool for tracking infringements as following tweets relevant to your work can help you find infringements Google might have missed.

In that regard, Twitter may become as much of an ally in the fight against infringement as a foe, much like Google itself, a double-edged sword that can be put to a number of uses.

However, the change that got the most attention in my inbox was the announcement that Google was revamping its DMCA notice procedure to respond more quickly, within 24 hours ideally.

I have been extremely critical of Google over the past few years. I’ve called it “Hopelessly broken“, I gave them a “D” when handing out grades for DMCA compliance in 2007 (behind only Giga Blast) and, even as far back as 2005, was expressing concern about how slow the process was.

Though I’ve given Google some credit for some of their recent changes, most notably their improvements to the process when dealing with Blogger complaints, I’ve mostly been limited to posting information about workarounds for sending DMCA notices to Google and complaining about Google’s shell games with Adsense.

However, as frustrated as I have been in the past with Google, I have to admit that there has been some significant improvement in the past few months. Though I still have some disagreements with them, I have to acknowledge that at least part of the announcement is not without teeth. They really have sped up and improved their DMCA process.

What is more interesting though is this wasn’t a change that happened overnight, but rather, one of gradual improvement that happened over at least several months and almost crept up me.

How Google Improved Its DMCA Process

Though Google hasn’t publicly said how it improved its DMCA resolution process, it’s clear that it wasn’t an overnight success story. Rather, the change has been coming for some time.

I first caught wind of shifts at Google a few months ago, when I advised someone to be patient after sending a notice to Google only to hear that they had received compliance in about a week, well short of the previous two-week time frame that was common.

I dismissed it as a happy fluke but it happened again with another contact who got resolution in about four days. With confirmation that Google was improving its turnaround time on DMCA notices, I began to steer my clients more to using it when appropriate. Since then, I’ve filed or been involved with about half a dozen notices and have seen the response time improve from three days to, with my last notice, getting an initial response in 24 hours, as promised in the announcement.

To be clear though, in every case, this was the response time, not the resolution time. For example, with the latest case, I received a response in 24 hours but it took a few days of back and forth to ensure all infringing content was removed.

Still, it’s hard to deny that this is a drastic improvement. Though I can only speak from my personal experiences and that of those I work with, it appears they’ve gone from a response time measured in weeks to one that can be reasonably measured in hours.

Still Some Issues

As much faster as it is, there are still some lingering issues. Though I haven’t attempted to simply email a DMCA notice the traditional way, Google’s DMCA page has not changed to indicate that they will accept notices without a handwritten signature. This means you still have to use the “Google DMCA Workaround” to email a notice in.

This is also part of why there is such a big difference between response time and completion time still. Namely that Google needed me to respond with a list of the links in clear text, not in the PDF. Since the reply was sent on a Friday, I didn’t get to it until Monday as no one would have been there to respond.

It would be nice if Google would change their search DMCA policy to more closely mirror their Blogger policy, which works through a simple online form.

However, the bigger complaint about the delay seems to be fixed, at least for now and it does seem that, at least in this area, the Google push to improve things is legitimate.

Rethinking Google

Previously, I had been reluctant to encourage people to file notices with Google. Though compliance was usually guaranteed, the delay was so long and the hassle so great, that it was just easier and faster to take other paths. Especially considering how urgent many of the cases I deal with are, waiting two weeks to remove a work from the search index was not practical.

Instead, I reserved DMCA notices with Google for cases where the infringer had popped up repeatedly without filing a counter-notice or where the SEO impact was the sole concern, such as with some scrapers.

However, with these improvements, there may be more cases where filing with Google is a solid move. In fact, with Google responding more quickly than many hosts, it may make sense, at least in some cases, to file DMCA notices with them along with the host.

That being said, I’m still very leery to turn Google into copyright cops of the Web, especially when they can always change their policies later and other methods are better targeted at the infringement. Still, this clearly makes Google a much more practical and powerful tool in these disputes.

Bottom Line

For the most part, I don’t intend to change which cases I refer to Google and which I don’t. I’ve never blindly shot out DMCA notices to Google (or to anyone for that matter) and don’t intend to start. Though there are some cases where I might consider a DMCA notice to Google today where I wouldn’t before, those are few and far between.

While we likely won’t know the results of Google’s other efforts for some time, the fact that their DMCA improvements seem to be generating real results is encouraging. Google does seem to be getting more serious about these issues and I know Ellen Seidler. the author of the PopUp Pirates site, will at least be pleased.

Hopefully these results translate to even better procedures and better results elsewhere.

Frustrated that Ken Follett’s book ‘Fall of Giants’ was not available in Spanish on the Kindle, he posted a blog entry on the topic and linked to a downloadable copy of the work available on a file hosting site. This attracted the attention of CEDRO (Spanish Reproduction Rights Center), a group that represents authors in Spain, which in turn filed a DMCA takedown notice with Ricardo and then with WordPress, which eventually took down the site temporarily and blocked Ricardo’s access.

But what makes this case unusual isn’t WordPress’ involvement, it’s how CEDRO claims to have first contacted Ricardo. According to the story, CEDRO didn’t simply email a takedown notice (or a cease and desist) and, instead, they posted it as a comment to the blog entry and, when they didn’t get a reply, they moved up the food chain.

This story raises a lot of interesting questions about sending DMCA notices (or cease and desist letters as it would more appropriately be in this case) via blog comment forms. Unfortunately for CEDRO, I think the reason it took so long for this issue to come up is because it was such a stupid idea in the first place.

Comment Fail

Back in June, I raised the question whether anyone would be willing to send a cease and desist via Twitter or Facebook. The consensus seemed to be that, though these methods of communication are becoming more commonplace, most aren’t comfortable using them for such purposes yet.

But where Twitter and Facebook come with discomfort in using them for such official capacity, comments raise still more issues.

The problem is that comments on a blog post are not necessarily directed at anyone. Where I can send a private message on Facebook or an @reply on Twitter, a comment on a blog entry is just a reply to the post and not necessarily directed at anyone. It could be at another commenter, the blog author or no one at all.

As such, it’s hard to claim that the notice was actually or effectively delivered. It’s a bit like posting the notice to a public bulletin board near a person’s home and expecting them to read it. While public notice is a part of the law, it’s for cases where the public at large, not a specific person, most be notified of something (name change, certain auctions, etc.).

While cease and desist letters and DMCA notices are not official documents in that they do not need to go through the service process, there needs to be at least some proof of receipt as ignoring these notices can have implications on a potential legal case.

It would be very difficult to prove that someone was given adequate notice with just a comment posted to their blog, especially if it is a high-volume blog.

However, that is just the tip of the iceberg with the problems with this method.

Other Problems

In addition to the obvious issues with serving any kind of notice through a comment form, there are many other reasons why a comment form would be a poor choice for such a notice.

1. Spam Filtering: Though email accounts have spam filters, they seem to do a much better job eliminating false positives than comment ones, making it more likely that such a comment would be junked. Furthermore, you have two spam filters to deal with, the comment one and the email one, meaning that even if the comment goes live, the owner might not be notified.
2. No Authentication: How is a blogger going to confirm who wrote a comment? With so many trolls on the Web it would be easy to dismiss such a comment as not being from a valid source, especially since the means is so uncommon. This makes it less likely the site owner will respond in a favorable way.
3. It’s Public: Though no one should be ashamed of doing reasonably copyright enforcement in the public light, taking matters so pubic, especially right off the bat, basically ensures a more negative response. A polite, private message usually gets the best response.

However, the biggest issue of all is that there was no reason to file with Ricardo at all. The file host involved, MegaUpload, does respond to takedown notices and likely would have removed the work quickly. That would have cut off the problem at the source and not further downstream.

In short, rather than damming a river, they simply tried to dam one of its forks, not a good move to stop the water.

Bottom Line

To me, it almost sounds like CEDRO was trying to pick a fight. I can’t imagine a rights group with as much experience as CEDRO making a decision like this. If it were someone with no experience in enforcement, it would be an understandable mistake but this is a rights group that is no stranger to this area.

What the purpose of this was, I can not be sure. I was able to easily find Ricardo’s address (even I know what “contacto” means in Spanish) and it seems a better resolution was a simple email away. Instead now they have an ugly mess on their hands and the artist’s rights are no better protected.

All around, this seems to be a boneheaded move and one I hope other copyright holders do not repeat.

Servint is a well-known and respected VPS host that not only hosts Plagiarism Today but also is home to several smaller Web hosting companies. Based out of McLean, VA, the company, like all U.S. hosts, is bound by the Digital Millennium Copyright Act and has to respond appropriately to notices of copyright infringement and have a designated agent for receiving such requests.

Mike Witty is that person. Recently appointed the Director of Network Compliance after a decade of service to Servint, Witty oversees a team of 4-5 to handle DMCA, abuse and security for the entire company, which includes thousands of physical servers spread across two datacenters.

I sat down recently to talk with him about the DMCA, how it operates at his company and what, if anything, DMCA filers can do from their end to help speed the process along and help them deal with these issues quicker and more effectively.

Servint’s DMCA Process

According to Witty, there is a great deal of ebb and flow to the number of notices that they receive. Some weeks it can be extremely dead, with just one or two notices, other weeks it can be much higher, up to 4, 5 or more. Since they only offer VPS services, they don’t see a great deal of spam blogs or people abusing the accounts to distribute copyrighted works, it just doesn’t make financial sense, but they do see a fair amount of notices regarding resellers of their service who have created smaller hosts by carving up their VPS.

But despite the relatively low numbers, at least when compared to many shared hosts, Witty makes it clear that they take DMCA notices extremely seriously.

“As with anything involves lawyers and the threats of lawsuits, we have to take these notices seriously and we have a protocol in place for when we receive them,” Witty said.

The first step when they receive a DMCA notice is to make sure that it is an actual Servint issue. Sometimes filers get confused and file notices against Servint for content that is not on their network. In those cases, Witty will try to help the filer find the right person to contact.

Once it is determined to be a Servint customer, the notice is evaluated by himself and by attorneys to make sure that it is complete and complete. If it isn’t, according to Witty, they send the notice back to the filer with instructions to resubmit. However, they continue to work on the case assuming that the person is going to return and refile the notice very shortly.

This includes bringing it to the client’s attention and warning that the notice will likely be refiled. Many clients simply remove the content at this point, regardless of if the notice is refiled. Either way, the majority do refile their notices and, once the validity is confirmed, they move to acting on the claim.

They first open up a trouble ticket for the case and notify the client about the notice. They require the client to remove the allegedly infringing material within a window of time and, according to Witty, “99 times out of 100, they do.”

In the rare cases where the client doesn’t remove the content they will either go in themselves if they can (for example an image file on the server) or, if it’s not possible, diable the account. However, those results are extremely rare.

According to Witty, very few clients contest cases and, interestingly, most of the DMCA notices they handle deal with misused images, not text or multimedia content. The average time between when a DMCA notice is filed and the ticket is closed is 2-3 days though many are resolved within 24 hours.

So how can copyright holders help speed up the DMCA process? Witty had several tips that might be able to help you get protect your work faster and easier.

Helping DMCA Agents, Getting Better Results

If you file DMCA notices regularly, or even just occasionally, you probably want to make sure that you get the quickest resolution with the least amount of headache possible. On that note, Witty had several suggestions for copyright holders could help him with his job.

1. Put the Notice in DMCA Format: The biggest slowdown for people whole make copyright complaints is that they do not put the notice in the proper format. Either use a good stock letter or otherwise make sure that your notice has all the required elements.
2. Avoid Phone Calls: With so many legal implications of filing a DMCA notice Witty tries to avoid phone calls and encourages those filing notices to do the same. It’s better to have a paper trail of everything that is said and done.
3. Show Respect for the DMCA Agent: Remember though the agent represents the infringer’s host, they are not responsible for the infringement. Being cooperative and showing professional courtesy and a cooperative spirit makes them more willing to help you and the entire experience smoother as there is no time wasted bickering or explaining.
4. Close the Loop: Once a case has been resolved, please let the agent know. This lets them close the trouble ticket and confirm that the matter has been handled to your satisfaction. Not only does it give the agent a sense of personal satisfaction, but it ensures that the trouble ticket system isn’t cluttered with closed cases.

Though most of these tips are pretty straightforward and are things I’ve talked about on here before, they are still steps that many DMCA filers omit when sending notices and thus bear repeating.

If you obey these rules, most likely you’ll find that your DMCA case is handled quickly and painlessly. According to Witty, one of the top priorities of Servint in DMCA matters is to treat the filer with respect and make sure that they know a human being is handling the case. This is why they send personal emails (after the initial confirmation) and attach names to every reply.

Respond in kind and, according to Witty, there probably won’t be any issues at all.

Bottom Line

In my experience, Witty’s story is a fairly typical one from DMCA agents. All in all, their policies are fairly typical and, based on what he has said, work very well. They have a fairly complicated networking environment with reseller hosts and they seem to handle things very well.

As someone who does consulting services for hosts on DMCA issues, Servint definitely appears to be a good example for others to follow, doing what they can to balance everyone’s rights and interests while resolving disputes quickly.

If only other hosts were as cooperative or as helpful as Servint is…

In 2006 I wrote an article entitled “Why RSS Scraping Isn’t OK” that laid out many of the arguments provided in favor of RSS scraping and republishing and laid out counter-arguments to them.

By in large, in the years that followed that article it seems that Internet has agreed. RSS scraping is no longer a hot topic on the Web but it is also not an accepted practice by any stretch. When sites are accused of scraping they are usually shouted down and are viewed as spam bloggers.

However, a ruling from earlier in 2006 may be coming back to raise new questions about how implied licenses affect the Web. The Field v. Google case, which dealt with Google’s cache, took a look at the implied license question from a different perspective and came up with some interesting answers, namely that Field, a writer, had granted Google an implied license to cache and display the cache of his content by posting it on the Web and not taking additional steps to block it.

That ruling is now being revisited and reapplied in another case, this one dealing with the controversial copyright litigator Righthaven and the new application may impact all creators on the Web and make nearly all content copying legal.

Though I am no fan of Righthaven and their practices, this particular theory against them is very dangerous and well worth analyzing closely.

The Righthaven Case

Righthaven is a company set up by the shell corporation for the Las Vegas Reivew-Journal (LVRJ) to enforce the copyrights of the paper. The group purchases rights from the paper and then sues bloggers and other sites that have republished stories from the paper, demanding upwards of $75,000 for a settlement (though the cases usually settle for much less).

Their practice is controversial for several reasons including that they do not file takedown notices or cease and desist notices first, meaning that the suits usually come without warning, Also, the company has targeted sites with many mitigating factors including ones that only reposted small portions of the original content, were the subjects for some of the articles and, in some cases, sites who did not upload the work themselves but had them uploaded by users. The latter raises significant safe harbor issues.

One of the publishers sued was Jan Klerks, who runs the forum SkyScraperCity.com. A user at the forum posted a LVRJ article and Righthaven has sued Klerks for copyright infringement.

Initially, the court issued a default judgment against Klerks when she failed to respond to the suit but Klerks is now requesting the suit be vacated (PDF) on multiple grounds, including the following:

1. Fair Use: Claiming that the copying was a fair use.
2. De Minimis Copying: Meaning the copying was so small and technical as to be non-infringing.
3. Implied License: Claiming that the LVRJ, by their actions, granted an implied license for the reuse of the content.

It is the last argument that has gotten the most interest and is the one I’m focusing on today In the filing, Klerks argued that several actions the LVRJ took essentially gave her user (or anyone else) permission to copy. Those actions included:

1. Using Sharing Services: The LVRJ uses social media buttons and other tools to enable users to share links to stories.
2. Not Disabling Copy/Right Click: The site enabled users to right-click and otherwise copy content, not taking any steps to block it.
3. Posting the Work For Free and Making Available in Google: The article in question was still available for free on the LVRJ site and is searchable by Google.

Interestingly, the motion does NOT mention several very clear potential arguments that likely apply including DMCA Safe Harbor protection, which Klerks likely qualifies for as the host of the forum, or jurisdictional issues as Klerks is from Illinois and was sued in Nevada.

Still, the implied license argument has drawn a lot of attention from all over the Web and rightfully so. To support that argument, Klerks cites the Field v. Google case, revisiting the case in a very different light.

The Field v. Google Case

In the Field v. Google case, the court ruled that Google, among other things, had an implied license to store and display caches of Field’s content for several reasons, the biggest being that Fields was aware of the robots.txt standard for blocking archiving and the potential use of meta tags but failed to do either, therefore, according to the ruling:

Thus, with knowledge of how Google would use the copyrighted works he placed on those pages, and with knowledge that he could prevent such use, Field instead made a conscious decision to permit it. His conduct is reasonably interpreted as the grant of a license to Google for that use.

This ruling was somewhat unusual in that copyright law normally does not place any requirements on copyright holders to try to stop copying before a copy can be considered an infringement. However, the court also found in this case that the cached copy was transformative enough to be considered a fair use and that, even without this license, Google’s use would not be an infringement.

(Note: More about the verdict from the EFF)

Still, it is easy to see why Klerks would cite this case in her argument on implied license but the implications if this argument is successful could be very severe for anyone who publishes content online.

Analysis of the Argument

Personally, I don’t think Klerks’ implied license argument is going to take flight. Even though there are some similarities between her case and the Field case, there are several critical differences when it comes to the issue of direct infringement:

1. No Industry Standard: First, there is no industry standard akin to robots.txt for blocking human copying. No right-click scripts and other anti-copy protections are nowhere near commonplace and they disable other, useful features a webmaster may wish to enable. Comparing the two is a tremendous stretch.
2. Copier is not Passive: In the Fields case, the plaintiff did not object to the initial copying and the cached version is an automated process initiated by a visitor at Google, Google is passive in the process. Reposting a work on the Web is not a passive process that the person doing the copying has to initiate.
3. Weaker Fair Use Argument: Though the fair use argument should be weighed separately from the implied license/direct infringement issue, such copying and pasting is far less transformative than Google cache and, generally, is capable of replacing the function of the original. This, inevitably, is weighed into the ruling to at least some degree.

Also, Klerks’ argument regarding the sharing buttons seems a bit of a stretch as well. These buttons enable the sharing of links and not the whole content and other buttons, such as the email button are not for posting the content on another site, but rather, sending via a private means of communication.

In short, many legal scholars feel that the Field case was a bit of a stretch on the implied license issue and this argument seems to take the Field ruling and stretch it even farther, likely past the breaking point.

However, the honest answer is that one does not know what the court will decide and, as with fair use issues, courts are notoriously erratic. Attorney Eric Goldman said it best when he indicated that there is no way of knowing if an implied license exists here and, if one does, what it covers.

In short, even if an implied license does exist, it may not go as far as Klerks wants or needs it to. Instead of covering republishing on the Web, it may only cover sending to one or two people or posting to a some other limited use.

Until the court rules, we simply will not know.

In the meantime, we are faced with the possibility, no matter how remote, that courts could rule that posting a work on the Web is the same as giving an implied license to copy and republish it freely, something that could all but eliminate copyright protection for many Web publishers.

Take Action Now

Even if the argument is not likely to succeed, it has opened up a Pandora’s box and created uncertainty that has to be addressed. In 2006, when dealing with RSS scraping, I encouraged people to not take any chance and license their feed using a Creative Commons or other applicable license.

This advice now stands, more than ever, for content on the Web too.

The reason is quite simple, any implied license is trumped by an actual license. This is because implied licenses, by their very nature, are only for cases where an actual license has not been granted or doesn’t exist. So, even if the court does rule that publishing grants a broad implied license, any actual license would have to be followed first.

This is a big part of why it is so important to license your works correctly. Not only does it prevent misunderstandings, but it also prevents you from accidentally giving away more rights than you intended via an implied license.

In short it is best to decide your license for yourself and not let the court choose and hope it picks the right one.

Bottom Line

If you publish content on the Web, this affects you. It is that simple. As I said before, I am no fan of Righthaven or their tactics but this is an argument against them that could have very far-reaching and very negative consequences for almost everyone who posts content online.

Granted, the odds of the argument succeeding (at least to the extent Klerks needs it to) seems very slim but it does add another reason for webmasters to pay close attention to their licensing practices and work to make them clear.

In short, if you’ve been relaxed about licensing your content, now is the time to change that. It’s better to take such action now than possibly get caught off guard by this, or any other, ruling that affects your rights.

Repeat copyright litigator and pornography company Perfect 10 has had yet another verdict go against it, this one in its ongoing battle with Google over what Perfect 10 alleges is images infringing on their copyright present in Google’s index.

According to Perfect 10, Google has not done enough to remove such infringing images from their index and has not responded appropriately to DMCA takedown notices. The court, however, has largely disagreed.

The court tossed out most of Perfect 10 claims saying that they did not provide adequate notice for Google nor did they meet the minimum standards underneath the law. In short, their DMCA notices were not adequate and Google can not be held liable for not taking action on them.

A small subset of Perfect 10′s notices were deemed to be valid and Google now must show that it responded expeditiously to remove the infringing material or potentially face liability.

It has already been a case that all DMCA filers need to watch closely and this recent verdict only reaffirms that. Fortunately, the lessons from this ruling are very simple to understand.

Lessons For DMCA Filers

The basic lesson from this ruling is very straightforward, don’t file sloppy DMCA notices. You, as the copyright holder, can not place the burden on the host or the search engine to do the research on your claim nor can you you simply dump a collection of links and source items on the host’s doorstep for them to sort through and figure it out.

Perfect 10 filed at least some of its notices by including a cover letter and a spreadsheet of URLs. Often times the URLs did not link to the infringing material and the source content was not clearly identified or was one of thousands of images on a DVD.

Essentially, the court ruled that a proper DMCA notice needs to include all the required information in a single written communication and could not force any undue burden on the host. This seems reasonable enough, but Perfect 10 did not do that with the majority of its notices.

However, in a regard, this recent Perfect 10 ruling is a victory for DMCA filers as the court upheld properly filed notices and may still find Google liable in those cases depending on what action Google took. However, it is more importantly a word of caution that, when filing DMCA notices, you need to make sure that they are sent in the proper format or they can be legally ignored.

What It Means For You

If you use the stock letters provided here and the system I preach, it means pretty much nothing.

In fact, the steps required by the court, making the information clear, providing all the data in one communication, etc. are all good practices regardless. If one is interested in seeing the DMCA notice executed in a timely manner, these are the steps one should take anyway.

I’ve never had a DMCA notice rejected as being incomplete using the current template and don’t see any reason I would following this ruling.

This ruling should serve as a warning to those who might play games with DMCA notices in a bid to “trap” hosts into non-compliance, but to those who are filing notices in good faith and working to make things as efficient as possible for all parties, they have nothing to fear.

Bottom Line

Clearly, the Perfect 10 case is ongoing and we will see the outcome on the remaining notices. But with the majority of the works now tossed out, it is clear that Perfect 10 will never see the full outcome it wants.

But while that may concern some DMCA filers, the truth is that Perfect 10′s method of filing notices was so out of the norm for how the process is supposed to work that the court found it to be invalid.

In short, even if you don’t do things exactly like me, you’ll probably find that you’ll be on the right side of the law so long as you work to make things as simple and clear as possible for the company you are filing with and don’t try to reinvent the wheel.

Sometimes, no matter how good you are at dealing with misuses of your content, a case finds itself stuck.

You’ve sent a polite letter asking for the content to be removed, then gotten more stern with a cease and desist and then filed a takedown notice with the host, all as appropriate, and yet the infringing material is still online.

Whether you’ve gotten stern rejections from both the infringer and the host or heard nothing back from either. It is time to take a moment and retool your strategy, Clearly, something isn’t working in this case and it’s time to figure out what, if anything, comes next.

With that in mind, here are five steps you should take if you find yourself hitting up against this wall and how you may still be able to move forward.

1. Evaluate Your Claim

The first step is to take a look at your claim objectively and see if it is as valid as you think it is. If you received letters of rejection from the host or the alleged infringer, take a look at the reasons and try to give them some weight with a clear head.

Many times claims of infringement are rejected because they are either outright wrong or simply too gray. If you’re filing a claim about a use that could be seen as a fair use or might not involve any copyrightable material, it’s best to take a step back and seek an outside opinion.

Technically, if you’ve already filed a takedown notice on a dubious claim, you’ve already exposed yourself to some legal liability but there is no use in making things worse by pressing on.

2. Recheck the Host

Once you are sure that you are in the right on your demand for removal, it is then worthwhile to recheck your information on the host, especially if you didn’t hear anything back from the host at all.

One of two things could have happened:

1. Incorrect Host: You may have simply contacted the wrong host. Check your host information with both Who Is Hosting This? and Domain Tools (under the “Server Info” tab). You may find you simply contacted the wrong company or contacted a reseller that doesn’t actually control the server or know what to do.
2. Wrong Contact Info: Many hosts will simply not respond to DMCA notices not sent through the proper channels so make sure you got the correct contact info for the host. Look at the U.S. Copyright Office’s list of designated agents and check the host’s TOS or legal page.

Check those two things carefully and, if needed, try contacting them again.

3. Adsense DMCA

If the host isn’t willing or able to help and the infringer isn’t responding favorably, then the next step may be to try alternative means of resolution including contacting Google Adsense if applicable.

Google Adsense accepts DMCA notices and responds fairly swiftly to them. They do not, however, respond to copyright complaints sent via their regular abuse reporting system.

If the infringing site uses Adsense, or any similar advertising network, this can be a powerful tool for bringing about a swift resolution to the problem.

4. Search Engine DMCAs

Since all four of the major search engines are located within the U.S., they all accept DMCA notices and they all comply with them. This can be a very powerful tool but only should be used sparingly and in cases where the host and the infringer are not cooperating.

Though a search engine DMCA will not remove the content from the Web, it will remove it from the search engines and prevent it from competing unfairly with your original work. It’s not a complete victory by any stretch, but it prevents the person misusing your content from gaining much benefit from it.

5. Get Help

Generally, I frown upon taking cases of plagiarism and copyright infringement public for several reasons, most important two being that it only draws more attention to the infringer, which they likely want, and mobs have a tendency to go too far and create other issues out of otherwise straightforward cases.

However, if there are other copyright holders involved, contacting them may be worthwhile. Where a host or an infringer may be able to ignore one or two upset copyright holders, it gets harder and harder to tune out a chorus of frustration.

It is best to build this campaign without linking publicly to the infringement, however and, if you must, being careful to “nofollow” all links as it may cause the search engines to treat the infringement as the original work.

Bottom Line

The unofficial sixth step in these cases is to simply drop the issue. If the site is not doing any significant harm to you, especially if you’ve filed DMCA notices with the search engines, it is likely best to not invest any more energy in the case.

Though I understand well that we get emotionally invested in our work and, when someone takes it without permission, especially when they plagiarize it, there is a strong emotional response, sometimes one just has to put things in a rational context and move on.

The good news is that these cases are very rare. If you follow the usual steps for dealing with a case of plagiarism or copyright infringement, you’ll most likely find that about 95% of all cases, if not more, are resolved quickly and easily.

Still, it is best to be ready for the few that may need more work. As rare as they are, they can make up the bulk of the headache when protecting your content.

I’ve talked a great deal on this site about how to use the DMCA takedown process to remove plagiarism and other infringements from Web sites when absolutely necessary. However, there is a second, rarely used part of the DMCA process that is equally vital and important to understand.

The counter-notice provision is designed to act as a balance to the power that the takedown process gives copyright holders. It serves as a buffer against the damage caused by false takedown notices and discourages abuse of the process, while giving those who are subject to a DMCA notice a means to have removed works restored.

However, as with the actual takedown process, it is a system that is, on occasion, abused, used to restore access to knowingly infringing materials. Still, the process is vital to the notice-and-takedown system and one that every DMCA filer should be aware of and understand before sending off their notice.

Because, while counter-notices are exceptionally rare, especially when dealing with true and accurate takedowns, they do happen and are a very real possibility.

1. What Are Counter-Notices?

To understand what a counter-notice is, we have to first understand what a DMCA notice is.

Under the DMCA, if a copyright holder swears under the penalty of perjury (among other statements) that they are the copyright holder and that a work is infringing on their copyrights, the host of the content (or a search engine if applicable) have to disable access to the work to avoid liability.

A counter-notice works in the reverse. The subject of the DMCA notice makes similar statements claiming that the work is not an infringement, either that they hold the rights to it or their use of it is legal (fair use, licensed, etc.) and that the original notice was filed in error.

2. What Is Required to File a Counter-Notice?

The law sets up very strict guidelines for what is required in a DMCA counter-notice and they include the following:

1. A physical or electronic signature of the subscriber.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.
5. Or, if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification or an agent of such person.

Much of this language is ripped directly from the notice provision but the important addition in the inclusion of jurisdiction for the matter, which is always a U.S. Federal court, even if the subject of the DMCA notice is located outside of the country.

3. What Happens Once a Counter-Notice is Filed?

A host then passes along the counter-notice to the person who filed the original notice. The works remain offline for 10 business days, after which, if no additional action has been taken by the filer, the works can be restored.

The copyright holder can petition the court for an injunction to prevent the restoration of the original works, but if it is not obtained within the time allotted, the works are restored to the site.

4. What Can Copyright Holders Do After a Counter-Notice Has Been Filed

As mentioned above, the copyright holder can seek an injunction in court to prevent the restoration of the work. However, such injunctions usually involve a great deal of time and expense. Furthermore, since the individual involved can simply switch hosts to get around the injunction, they often are not worthwhile.

The only practical response to a counter-notice is, usually, to file a lawsuit and litigate the matter. However, lawsuits are not always practical unfortunately though the act of filing a counter-notice may open up the defendant to additional damages.

However, that is a matter to discuss with an attorney.

5. How Common Are Counter-Notices?

In cases where the original notice was clearly valid, very rare. Having filed hundreds of DMCA notices over the years, I have seen only two, but I have also always been careful to only file in clear-cut cases. Both times I saw counter-notices involved situations where the infringer had a grudge against the copyright holder and other litigation was ongoing or being filed.

Counter-notices are also, unfortunately, rare in cases of false DMCA notices but are becoming more common in those cases.

6. Why Are Counter-Notices Rare?

Simply put most infringers (as well as most legitimate users) aren’t invested enough in their uploads to invest the energy to learn how to file a counter-notice or take the legal risk in filing one. It is easier and faster to just remove the work and be done.

Furthermore, most people who are subject to a DMCA takedown are unaware of the opportunity to file a counter-notice and many hosts do a very poor job of explaining the process.

Finally, in cases where the subject of the notice does wish to restore access to the work, it is usually easier and faster to just move to a new host than it is to file a counter-notice, especially in cases of individual files.

In short, there is rarely motivation to restore the file and, when there is, there are easier ways to do so.

7. Should I File a Counter-Notice?

If you have a false DMCA notice filed against you, either on accident or maliciously, you probably do wish to file a counter-notice, after consulting with an attorney if at all possible.

The reason is that the DMCA requires hosts to ban repeat infringers from using their service and, if you do not file a counter-notice, the takedown counts as a “strike” against you and you can be banned even though you are not infringing.

If you wish to keep using your host, it is best to file a counter-notice, even if you do not wish to keep the file online.

Bottom Line

The counter-notice process within the DMCA is just as important and as valuable as the actual takedown process. However, it is also just as prone to abuse.

Though it very rarely occurs. a counter-notice can put a copyright holder in a very bad position if misused, forcing them to choose between either leaving the works online or filing an expensive and time-consuming lawsuit that is unlikely to resolve the matter.

Fortunately though, those situations are extremely rare for many different reasons but it is still a possibility to consider when filing a takedown notice.

In the end, it is important to understand the full DMCA notice-and-takedown process and not view the process as just a simple way to remove work. The DMCA carves out an entire process that gives both sides of the dispute a set of rights, rights that you need to be aware of.