Usually people blow this off but more than a few have gotten very upset at the prospect. Some have even refused to file notice because of the (at times remote) possibility it could end up there.

Though I’ve always tried to calm frayed nerves and assure people that Chilling Effects is no reason to give up on your rights, I haven’t always won these discussions. But while I do understand that some would be upset at the potential public disclosure of a private disagreement between a person, an alleged infringer and their host, there is much more to the story.

Personally, I don’t fear Chilling Effects. Though I do have some gripes with it and some suggestions for improvement, the possibility of my notices ending up in their database has never once bothered me.

There reasons are actually very simple.

What Chilling Effects Does

Fundamentally, what Chilling Effects does is maintain a database of DMCA notices and legal threats that are forwarded to it. Though the database deals with a variety of areas including defamation, patent and trademark law, it primarily deals with copyright notices and, even then, primarily deals with takedown notices sent to Google.

This is because Chilling Effects relies on hosts (or others involved in the process) to send them the notices. They have an arrangement with Google where nearly all notices sent to them are forwarded, including those sent to Blogger. As the largest search engine and by far the largest Chilling Effects partner (though Digg and others do participate), most of the notices in the database relate to Google one way or another.

Before publishing a notice, Chilling Effects removes sensitive information such as addresses and phone numbers to ensure privacy. It also categories the notice, links critical elements in it and affixes any relevant FAQs. The goal is to remove personal information but also make the notice easier to understand for those not accustomed to the legalese that often comes with them.

The result is a page like this one, with both the notice and the relevant information about the law, easily searchable and linkable.

Why This Doesn’t Bother me

When you file a DMCA notice, you are essentially filing a a legal notice telling a host that content on their servers is infringing your copyright and you are demanding it be taken down. There is a very large burden there on you, both ethically and legally, to make sure that your notice is proper and correct.

If you are ashamed of the notice or are uncomfortable with public scrutiny of your actions, you should probably not be filing the notice in the first place. Chilling Effects is not an attempt to shame copyright holders who are filing legitimate notices, but to keep a record of notices filed and discourage the use of the DMCA (and other laws) in silencing legitimate speech.

If you filed a lawsuit, you would have almost no expectation of privacy as the lawsuit becomes part of the public record almost instantly. DMCA notices, however, have no such public record. Since Chilling Effects remove sensitive information, it actually provides greater privacy protection than litigation and, considering how many notices pass through the site every week, it’s unlikely anyone will notice or care about your filing unless there is something seriously flawed or controversial about it.

And that seems to be the nature of Chilling Effects today, most of the notices are mundane. The recording industry is the largest filer (certainly not having let Chilling Effects stop them) and nearly all the notices filed seem to be proper and non-controversial. As a result, they simply fall off the radar.

In short, a DMCA notice appearing in Chilling Effects, as long as it is proper, is only a big deal if one makes it a big deal. Though mistakes do happen and I have seen at least one occasion where personal information did make it into the database, that information can be removed easily by contacting the site.

Two Gripes

While I certainly have a lot of respect for what Chilling Effects is doing and don’t mind my notices appearing in it, there are two minor gripes that I have with the service and I they are gripes I’ve heard echoed by other filers.

First, the name Chilling Effects, to many copyright holders, sounds very accusatory. Though Chilling Effects “aims to support lawful online activity against the chill of unwarranted legal threats” it does so by being an impartial database of notices. Not every notice in Chilling Effects is “chilling” free speech in any way, in fact, the vast majority are not.

Many copyright holders, when they find out their notice has appeared in the database or that it might, think that someone is telling them they did something wrong, even if it was a completely legitimate exercise of their rights.

As a guy who blogs at Plagiarism Today, I understand well the unintended consequences that names can have, but a more neutral name might encourage more copyright holders, especially smaller ones, to cooperate with the database (that and an easier submission process).

Second, a problem I’ve seen with both Digg and Google Search notices is that Chilling Effects will post the full URL the content that was removed from the index. Since both sites, understandably, link to the Chilling Effects page, this has the effect of making the full URL, without obfuscation, available to anyone, defeating the purpose of filing the DMCA notice.

The only difference is that, instead of clicking the link directly in the Google results, you click the link to the Chilling Effects notice and then copy and paste the URL. This left some of my clients and friends confused and wondering if Chilling Effects was trying to sabotage their legitimate DMCA notice.

This problem could be easily fixed by obfuscating part of the URL involved in these cases, making the full content only available for host takedowns where the work itself was removed.

Bottom Line

Though I don’t think the Chilling Effects process is perfect, I’ve never once hesitated on sending a notice because it might appear in the database. Simply put, I’ve never once sent a notice I don’t believe in or would feel embarrassed by it being made public.

That being said, very few of my notices have made it into their database. Much of this is because I rarely send notices to Google, instead preferring to send them to hosts, the majority of which don’t send their notices to Chilling Effects. But even the notices I do send to Google don’t seem to appear and I’m not sure why.

Regardless, I wouldn’t mind if they did and I don’t think any creator who is filing legitimate takedown notices should mind either. What Chilling Effects is doing is important. By discouraging bad uses of the law, Chilling Effects is making it a better climate for those who want to use it legitimately and it is also keeping records of notices that may enable future research and evaluation of the law.

In short, copyright holders filing legitimate DMCA notices need to support Chilling Effects the same as those who fear false notices. It’s important to remember that a DMCA notice is a legal dispute and, if you aren’t prepared to have a legal dispute aired out somewhat in public, you probably need to rethink your position.

There are some exceptions, obviously, but in most cases the copyright holder isn’t harmed at all by the notice being made public with sensitive information removed. However, the public can gain a great deal, especially if a database is large enough to help researchers understand how the law is being used and others how to apply it correctly.

Back in April, I announced that Blogger was now accepting DMCA notices via a form, the first case of Google easily accepting DMCA notices online. The next month, I noted that Chilling Effects, a major database for takedown notices, had come back to life after many months with little activity and was mostly posting Blogger notices.

Though these were clear signs that Blogger was changing their approach to the DMCA, there had been no formal announcement about the shift. However, earlier today, Blogger announced these changes on their blog and, along with them, noted a few other shifts in their DMCA policy.

Given Google’s status as an industry leader and Blogger’s status as a leading blog platform, it seems likely that other hosts will be watching these changes closely to see if they should be making changes to their own system for handling DMCA takedown notices.

Some Background

According to Google, they began looking at making improvements in their DMCA system after they received some negative press regarding their handling of takedowns, especially for music blogs. The complaints, specifically, were that Google was taking down posts and not informing bloggers and providing no meaningful recourse if the notice was filed in error.

According to Blogger, every time a takedown was filed, the blog owner was notified at the email address they signed up with. However, many bloggers had not updated their email and thus not received the notice.

Still, Blogger wanted to improve the system and approached users and several other organizations, including the Electronic Frontier Foundation and Chilling Effects, about ways to improve the system, the changes to which went live today.

The Changes

There are four basic changes to the system that are taking place, effective immediately:

1. DMCA Complaints Handled via Form: This has actually been in service since April, but this is the first formal announcement of it.
2. Complaints Automatically Sent to Chilling Effects: Once again, this has been taking place since at least May, but all notices are forwarded to Chilling Effects are posted to the site almost immediately, sans personal information.
3. Users Receive Dashboard AND Email Notifications: If a user is the subject of a DMCA notice, they will be notified via both their Blogger dashboard and email, ensuring that they find out.
4. Subject Blog Posts are Set to Draft: Rather than deleting allegedly infringing posts, they are instead set to draft (thus taking them offline) and users can then edit the post to remove the infringing material and then reupload it. This was done largely to appease music bloggers, who didn’t want a whole post take down to a notice over an audio file embedded inside.

That being said, it is the fourth change that will be the biggest worry for most copyright holders. There is little to stop a blogger from just reposting the infringing material. However, a representative from Blogger told me that they expect those cases to be very rare and plan to take them very seriously. It was also emphasized to me that nothing in this policy will change their approach to repeat infringers and that sites used solely to infringe content, such as share links to illegal downloads, will still be dealt with severely.

This system is designed for bloggers who see notices very rarely, to ensure that they are given proper notification, via Chilling Effects, and that they remove the infringing content with a minimal amount of impact on the rest of their site.

Personal Thoughts

Overall, I am very pleased with the system. It seems like a true win-win that will result in faster, easier take downs of infringing material while providing better notifications to users and better protections against false notices.

The use of draft status to remove infringing posts is somewhat worrisome. For one, there are many posts where the entire work is an infringement and there isn’t anything to edit out. Also, there are many infringements on Blogger that don’t deal with an individual post, but an image in the sidebar or something else that is a part of the template. It is unclear how those will be handled though, most likely, the previous system would be applied (save that the user would be notified via their dashboard).

However, as long as the reassurances I received turn out to be true, the use of draft status to remove works is not that worrisome. We will have to watch this and see if there are any issues with it in the future.

On the other side, the use of Chilling Effects to give the users the notice seems flawed to me. Not only does it rely on a third-party service to pass along the notice, meaning if CE goes down, so does the ability for the user to get a copy of the notice, but the site omits personal information. There needs to be a clear system in place for retrieval of the full notice if needed for legal reasons. Though I am a supporter of Chilling Effects, this does not seem like the best use of it.

Still, the news is overall very good for copyright holders and users alike. Hopefully that is how the system will play out.

Bottom Line

In the end, most people who file DMCA notices with Blogger probably won’t notice any change. Content will still go down after a notice and most likely stay down. The form will remain in use and infringements will be handled more quickly than before. Users will get better notification of takedowns and Chilling Effects will be able to effectively collect data on the DMCA process.

Though there are concerns with the system, it is certainly an improvement over the previous one, which both lead to slow takedowns, due largely to a requirement for a fax or mail notification, and obviously left gaps in how it notified customers.

I hope that they will continue to hone and improve the system, but for the most part these steps make a lot of sense.

In recent months, Chilling Effects, the database of takedown notices and other cease and desist letters, had been very quiet. During the early months of the year, only a few items had been posted and, in fact, nothing had been posted at all in 2009 until February.

However, since the beginning of April, there have been nearly 200 postings to the service, almost all of them related to Google’s Blogger service. I spoke with Wendy Setzler, the project leader at Chilling Effects, and she said it was due to the “improved processing” of notices, especially on Google’s part (Note: The improvement has been mostly on Chilling Effects Part).

It is worth noting that the improvements in processing began shortly after Google began accepting DMCA notices via a form for Blogger, meaning that it is likely that, as part of processing the notices via the form, it is submitting them to Chilling Effects in a way that can be more easily processed and uploaded to the site. This is further supported y the fact that, of the notices I checked, all appeared to have come from Blogger’s DMCA form.

Currently most notices seem to be going up on Chilling Effects the same day that they are submitted, indicating a near record-breaking turnaround for these notices ad it has the potential to mean a very important new beginning for Chilling Effects as a service of record.

What This Means

What this means is pretty simple, if you plan on filing a DMCA notice with Blogger using the form, it will appear on Chilling Effects, most likely the same day. If this troubles you, you may be able to file a notice via fax or email and still get the works removed without it being processed, at least not immediately.

However, it has always been Google’s stated policy to submit DMCA notices to Chilling Effects and any notice filed with them may well be submitted. That being said, historically the majority of notices have not been or have at least not appeared on the site. In fact, even currently, no notices from Google Search, likely the most common recipient of DMCA notices, Adsense or other Google properties have been featured since the beginning of the year.

In fact, the only other Web property to feature significantly since April has been Digg.com, which has submitted several notices to the site that have been put into the database.

Whether this because Google is not providing the notices or if the Chilling Effects team, which is largely volunteer and is connected with several universities, is simply overworked. Setzler indicated that the number of notices they have been receiving has been increasing at a very rapid pace and that has placed a burden on the project.

Either way, it is clear that the site is now very active again and I certainly find that to be very encouraging, especially considering how little transparency there has been in the DMCA process.

Some Personal Thoughts

I’ve written before about the need for improved transparency in the DMCA process. As a believer that the DMCA process is, overall, a good idea that serves both copyright holders and the internet at large, I despise those who abuse it as they weaken the system and make it more difficult for those that wish to use it for its proper and intended purpose.

Chilling Effects has always been the best and most prominent effort to add that layer of transparency but it has struggled to be effective. The process of receiving notices, filtering out personal information, tagging them and posting them to the database has proved to be very time-consuming and they have struggled with the ever-increasing number of notices.

Hopefully this will be the beginnings of them getting a handle on this process and finding ways to automate it enough to make the database truly practical.

For those filing DMCA notices, especially over personal matters, the prospect of having their notices submitted to a public database may seem unnerving. However, I encourage people to never file a notice that they will not stand behind publicly. If you are only willing to file a takedown should it be kept private, it is one to re-evaluate.

The bottom line is that I applaud the work Chiling Effects is doing. Whether you are a critic of the takedown process or a supporter, it is easy to see that what they are doing is important.

In order to understand how best to legislate the takedown system, one must first understand how it is being used and that is exactly what Chilling Effects hopes to provide.

However, having DMCA notices a matter of public record does create a problem that I had not previously considered. As my good friend and co-host of the Copyright 2.0 Show Patrick O’Keefe found out, it can actually hinder the takedown process.

Because, when the goal is to remove a link to a potentially infringing work, making that link public can only cause more problems down the road.

An Example

In early December, O’Keefe noticed that a copy of his book was being made available for illegal download and was promoted on at least one likely spam blog. The spammer, as part of his promotion effort had also submitted the article to Digg, which not only propelled it toward the top of Google’s results for the book, but risked it reaching the front page.

Patrick took action and filed a DMCA notice with Digg. Since Digg is an “information location tool” as described in the DMCA, Digg was obligated to remove the link under the law (or be held potentially liable for the infringement) and did so.

However, Digg, as is their right, submitted the notice to Chilling Effects and then linked tot he notice when it was posted. The only problem was that the posting on Chilling Effects came with the complete URL for the infringing site. Though it was not a “live” link, one could easily copy and paste it into their browser.

The end result of this was that instead of Digg linking to a page with the book for download, Digg now links to a page on Chilling Effects that has the full URL to the download page. Clearly, this doesn’t achieve the goal of the takedown nor does it do much to discourage spam from appearing on Digg. After all, the spammer is getting traffic from the site, just indirectly.

It’s clear that the system has broken down here, fortunately though, it should be pretty simple to fix.

Simple Solutions

Given Digg’s history with the DMCA, it is understandable that they would be uneasy about responding to notices and want to do everything they can to protect themselves, including using Chilling Effects. As I’ve said earlier, I am very fond of what Chilling Effects is trying to do and wish the site were updated more often.

However, it defeats the purpose of filing a DMCA notice from the search engines if the infringing URL is placed in full in the notice, making it so that the content can be trivially found. I want to encourage Chilling Effects to post notices, hosts to use the site and for them to link to the notices, but not if doing so negates the purpose of filing a takedown.

The solution is fairly simple, since Chilling Effects already redacts large portions of the notices is posts, namely the private information of the filer, it makes sense to also remove all or part of the infringing URL. Though it is an important part of the notice, leaving it in negates the purpose of a section 512(d) takedown (information location tools) by simply redirecting the user to the allegedly infringing site.

This is true with all DMCA notices to social news and search engine sites, including Google.

As long as Chilling Effects posts the full URL, it will be very difficult for copyright holders to correctly apply the DMCA and it will likely hinder many hosts, search engines and news sites from submitting the notices they receive. After all, what is the point of them removing a link and submitting a notice when it will just result in the link being reposted, albeit in a roundabout way.

Simply put, there has to be some middle ground that can display enough information in the URL, without hindering the DMCA process.

Conclusions

I’ve written before about the need for greater DMCA transparency and I think that Chilling Effects can be a large part of the solution. Howver, being part of the solution means observing and reporting on the DMCA process, not hindering it, even by accident.

I certainly don’t feel that Chilling Effects is malicious in this nor do I think they did any serious harm in this case. In the end, O’Keefe was able to get the PDF file removed from the file server it was stored on through another DMCA process, thus ensuring that it couldn’t be downloaded even if the spam blog remained up, which it has.

Though this story has a happy ending, it does highlight a strange problem with the DMCA process when it is move into the public light.

Note: I contacted Wendy Seltzer, the project leader at Chilling Effects on 12/23/08 but have not heard back from her. I will update this post if I receive a response.

In addition to responding to a comment on a post from last week, he alerted me to a copyright case involving Tickmaster (TM) and RMG Technologies. According to the complaint and subsequent injunction (embedded below), RMG produced an application that allowed users to bypass a CAPTCHA system on TM’s site, thus enabling users to easily purchase thousands of tickets before actual humans could even get into the system.

According to the judge, this not only likely constituted an infringement of TM’s copyright, breach of contract and a violation of the computer fraud and abuse act, but also a violation of the DMCA anti-circumvention rules.

This ruling, if it actually stands up through the entire legal process, could have major implications for Webmasters who rely on CAPTCHA technology, including this one, and could introduce new ways to protect content on the Web, especially against automated tools such as scrapers.

Background

The anti-circumvention provisions of the DMCA are, with little doubt, the most controversial portions of the law. They are the portions that make it illegal to circumvent technological protections in order to gain access to copyrighted material as well as the providing of tools to circumvent either access or copy controls.

These rules have created a tremendous backlash due to their effect on fair use. Since it is a crime merely to produce tools that can circumvent copy protection schemes, copyright holders can lock down a work and prevent all use of the content, even use that would have likely been deemed fair if taken to court on its own merits.

However, this case put these provisions in something of a new light. According to the injunction, the CAPTCHA that TM used to protect its purchase pages constitutes a an access control mechanism and the page behind it is a copyrighted work. Thus, RMG’s software, which was designed to circumvent that CAPTCHA, amounts to a violation of the DMCA and, looking at the ruling, there seems to good reason to think that this logic will hold up.

In short, CAPTCHAs might not just be a form of protection against spammers and bots but might also themselves be protected under the DMCA.

A Tricky Application

CAPTCHAs are one of the most popular forms of site protection. They are used by everyone from Google to brand new blogs. Obviously, any additional legal protection CAPTCHAs can get will be a very big deal.

However, the TM case is a fairly unique one. Most bloggers use CAPTCHAs to protect their comment forms or emails, not multi-million dollar purchasing systems. To determine where a more typical use of CAPTCHA might fit in with with the DMCA, we first have to look at what one would have to prove to make such a claim.

1. Ownership of a valid copyright on a work.
2. That is effectively controlled by a technological measure, which has been circumvented
3. That third parties can now access.
4. That those third parties are unauthorized in their access
5. That the access infringes a right protected under copyright law.
6. And that the defendant made the product primarily for the purpose of circumvention, made it available despite limited commercial significance or promoted it as a tool for circumvention.

For most bloggers, the first two requirements are the greatest challenge. Though we use CAPTCHAs to protect comment forms and even our email addresses, neither of those things are copyrightable. One might claim the comment backend as being a copyrighted work, similar to Ticketmaster, but very few bloggers create their own platform meaning they don’t hold copyright in the code they use. Besides, it would be hard to call these files “effectively controlled” as most of them can be accessed directly from the Web.

Even if the blogger protects an email address with a CAPTCHA, that is just information and is not considered copyrightable.

The only exception would be if a blogger actually used the CAPTCHA to protect a copyrighted work. For example, if a CAPTCHA were used to protect a large MP3 file from leeching and another Webmaster implemented a service to let their users bypass the CAPTCHA and download the file directly.

These situations can and do happen, but are exceptionally rare. Fortunately, there are other laws, many of which we talked about when discussing scraping, that better fit this kind of abuse.

Still, there might be a place for these kinds of tactics, just not with your average blogger.

The Big Guns

The question becomes who could make the best use of this ruling? They would have to be someone who met the following criteria:

1. Used CAPTCHAs heavily
2. Protected copyrighted work they had ownership of with them
3. Has the resources to target those who build such tools

Clearly, the list is short but the obvious answers are any of the big three, Google, Yahoo or Microsoft.

Of those three, Google fits best as they make very heavy use of CAPTCHAs, especially on Blogpsot, are frequent targets for circumvention and seem to be struggling to stay ahead of the software. However, it seems unlikely that they would use the law in this manner considering their hostile attitudes toward the DMCA in general.

However, any other company that meets the standards could certainly benefit from this case. It seems to only be a matter of time before a blogging platform takes advantage of this ruling in order to go after comment spammers and, possibly, scrapers.

After all, the DMCA not only applies to CAPTCHAs, but any other technological measure used to protect copyrighted works. I can think of many hosts and Webmasters eager to take advantage of that prospect.

Conclusions

I’m no fan of the anti-circumvention provisions of the DMCA, I want to make that clear. Also, I want to make it perfectly clear that this discussion is purely theoretical and academic and not an indication of a future legal strategy by any entity including Google, reCAPTCHA or anyone else mentioned in this. The best defense against CAPTCHA cracking remains better CAPTCHAs.

Still, even a bad law can be used for some good. Though I am no fan of walled gardens either, they are necessary sometimes. To that end, protecting the content behind a technological measure, such as a CAPTCHA, greatly increases the legal options you have should someone circumvent those protections.

However, the place this is most likely to assist bloggers and Webmasters is in the area of image and file hotlinking. If you use a technological means to prevent such hotlinking and another site circumvents those protections, there is a good chance it would be a violation of the DMCA, giving you legal ammunition above and beyond just traditional copyright claims.

In short, if you are going to restrict access to your content for any reason, make sure to protect it with technology that would have to be circumvented to gain access to it. Not only will this prevent a great deal of the infringement it could also greatly improve your legal options should an infringement occur.

I might disagree with that decision personally, but there is little doubt that, legally, it could open up some new doors.