Google, The DMCA and You

Google, as the leading search engine and one of the leading hosts, sets much of the tone for how copyright is handled on the Web. However, Google is also something of a strange bird when it comes to DMCA matters and follows a policy that is unique to their company.

If you don’t know how to properly handle Google when it comes to DMCA matters, you might be in for quite a shock as the methods that work at 99% of all hosts receive a cold reception from Google.

It’s a mistake anyone can make, including myself, but one that is easily avoided if you are aware of the differences between Google and other hosts.

It’s All About the Signature

Google does a decent job spelling out what it wants in a DMCA notice on it’s DMCA policy page and most of it seems pretty standard. Anyone familiar with the requirements of a DMCA notice will immediately recognize most steps listed on Google’s DMCA page. However, it’s in steps seven and eight that Google departs from the rest of the Web by requiring filers to "Sign the Paper" and then either fax or mail it in.

What’s unusual about this is that Google requires a handwritten signature on all DMCA notices. This is counter to every other site on the Web I’ve worked with which, at least in theory, accept typed signatures on emailed notices.

While this requirement seems innocent, it can add a great deal of burden to someone filing a complaint of copyright infringement. Instead of simply sending an email regarding the matter, one must either fax a copy of the notice or send it via the postal service. For international copyright holders, this is especially burdensome as they have to pay for international postage and/or international calling rates just to deliver a notice of copyright infringement.

Needless to say, the requirement of a paper DMCA notice will likely discourage or frustrate many from sending in DMCA notices to Google. This will have the biggest impact on small copyright holders who don’t have the legal assistance, the knowledge or, possibly, the resources to take the extra steps. This also slows down and complicates the processing of DMCA notices as mailed copies take longer to arrive and Google does not receive clickable links pointing them to the infringing material. (Note: Google does request that, if you are sending a large list of links to them, that you also forward them an electronic copy).

To most, it would seem that electronic notices are in the best interests of both hosts and copyright holders and that’s much of the reason why most Web sites accept them.

What Others Do

There is little doubt that Google’s DMCA strategy is unique. When you look at other hosts in similar positions, the difference is quite striking.

Microsoft:
The software giant and operator of MSN Spaces and other hosting services takes the opposite approach of Google. Though you can submit faxed notices to them, the one time I tried that I was sent a polite request to please send all future notices via email. Though their responce to DMCA notices have, at times, been spotty (they are listed as a villain on this site), they clearly prefer and work best with email notices.

LiveJournal: LJ has one of the best DMCA reporting methods available. They take advantage of a form system that is both easy to use and easy to understand. It manages to fulfill the requirements of a DMCA notice without actually requiring the submitter to be able to create one themselves. At the very end of the form, LJ provides a text box for you to type your name in and it uses that as a signature.

Myspace: Accepts standard email DMCA notices, including those with only typed signatures. Responds very quickly to all DMCA complaints, including lengthy and complicated notices, and seems to have a solid grip on the situation.

Why is Google Different?

The honest answer is that I don’t know. When I asked Google about their policy, they pointed me to section 512 which states:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

As you can see in the line above, the law allows for both physical and electronic signatures. The Electronic Signatures in Global and National Commerce Act or 2000 ("E-sign") 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."

By those standards, one can easily sign their name by typing it at the bottom of an email so long as they intend it to be as such (Note: I end all of my DMCA notices with a clear "Signed" line).

When you look at all of the things you can do online without a handwritten signature, Google’s policy seems out of place.

Consider the following:

  • You can "sign" a end use license agreement (EULA) for almost any application by just clicking a button to say that you agree.
  • You can purchase products online, including at Google’s own store, with nothing more than a credit card number and a click on the "Agree & Continue" button.
  • You can verify your age with nothing but a click at millions of adult sites, thus fulfilling the requirements of several acts of legislation.
  • You can register register for a Paypal account and receive money from others with nothing more than a bank account.
  • You can sell things on Ebay or countless other ecommerce sites without anyone ever seeing your handwritten signature.

However, despite all of this, the matter comes down to what Google and Google’s attorneys decide. I am not a lawyer and, though these things seem very odd to me and I know that they are alone, in my experience, with this requirement, Google has to make their own decision.

Thus, it’s important that Webmasters learn to work with Google rather than against them. After all, cooperation between hosts and copyright holders is essential to protecting works online and Google’s requirements, while frustrating, can be worked with.

Working With Google

With that in mind, the easiest way to fulfill Google’s requirements is to do as they say and either fax or mail the notice in. Take the regular DMCA notice you have, paste it into a word processor, fill out the applicable information, print it out, sign it and send it in. While this might slow down the process and require some extra time and a small amount of money, it does work well.

If this is not acceptable (You live overseas or otherwise can’t use fax or postal mail) there is a means of getting Google to accept emailed requests:

  1. Create a digital version of your handwritten signature (either by scanning it in or drawing it directly into an image editor)
  2. Paste your DMCA notice into your word processor (I highly recommend OpenOffice, it’s free and has native PDF support)
  3. Place your signature image into the file
  4. Export it as a PDF (or place another universal format)
  5. Email it to Google’s DMCA Agent (PDF)

While this can be a great deal of hassle, especially if you don’t have the software or the signature ready in advance, it can be done and does work without having to fax or mail Google.

If nothing else, it provides an alternative to the paper-based ways that Google preaches.

Conclusions

While there’s little doubt that Google’s DMCA policy is unusual and requires extra steps, it can be worked with, but only after some extra effort.

Personally, I’ve been very lucky that only a few cases of mine have involved Google. Since I avoid reporting sites for removal from search engines (I can almost always get them removed at the host level) I’ve only had two or three cases that involved Google, both dealing with their Blogger service.

Bloggers, on the other hand, may not be so lucky. With the bulk of splogging still taking place on the Google’s Blogger service, a large percentage of the infirngement they encounter will likely take place on Google’s servers. I too, as more and more of my content moves into blog format, find myself wrestling with this issue.

With so much of the Internet passing through Google, it is important for everyone to be aware of Google’s requirements so they can protect their content on their server. While it would be nice to see Google join the rest of the Web in these matters, and perhaps help establish some kind of standard practice that can greatly simplify things for copyright holders, the decison will come down to what their attorneys and their policymakers say (Idea: Perhaps Google could establish an internal signature database that enables a complaintant to send a signature once and have it valid for their email address from then on, might be a useful way to bridge some of the gap.).

Still, I am eager to hear what others have to say on this issue. Also, if any lawyers reading this can provide insight into the legality of this practice, I would be very interested.

In the meantime though, cooperation, even in the midst of disagreement, is critical. In order to work together for a better tomorrow, we have to work together today.

That’s why I bear no ill will agianst Google and consider them as a "Citizen" in most respects (they do respond quickly and effectively to complaints that meet their creteria), but I  do have a lot of questions that, to date, have gone unanswered.

[tags]Plagiarism, Content Theft, Google, Copyright Infringement, DMCA[/tags]

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