You're All The Weakest Link: Bad Law Permits Bad Takedowns, Which Google Handles Badly

Google Operating System is a Blogspot-hosted blog offering "unofficial news and tips about Google." Earlier this month, the operator, Alex Chitu, checked his email to discover that a 2008 post had been removed by Google in response to a DMCA takedown. This was confusing to say the least:
Apparently, this is the infringing post: http://googlesystem.blogspot.com/2008/02/lyrics-for-youtube-music-videos.html (Google Cache). It's a post about a Greasemonkey script that allowed you to show music lyrics in the YouTube interface.


I've managed to find the DMCA notice: "The URL listed below is one of nearly 20 song lyrics sites who have attempted to post lyrics for the song titled 'Alden Howell' by the artist Inspection 12. The lyrics posted on this and other sites are not accurate and the artist has not given them permission to post lyrical content. Inspection 12 has been making efforts to contact these websites directly in order to have the content removed. We are attempting to have this URL and others like it to be excluded from google search results for the name 'Alden Howell'."

Unfortunately for Inspection 12, that blog post doesn't include their lyrics. In fact, it only includes a screenshot with lyrics from a much more popular punk band. Inspection 12 has never contacted me and no post from this blog mentions 'Alden Howell' (except for this post, obviously).

As Tim Cushing wrote in a recent headline, "in the long history of specious DMCA claims, this is definitely one of them." Chitu, unlike many people who are rightfully too intimidated by potential liability, filed a counternotice... and it was rejected.

So we've got an obviously non-infringing post that has been wiped off the web and, at the time of writing, is still gone. That's not okay, and it's time to ask how it happened. There's no shortage of reasons.

Firstly (or more accurately lastly), we've got Google's handling of the DMCA request. As Chitu points out, it was just a search result takedown, but Google chose to actually take the post off of Blogspot as well. That wasn't an accident, it's their process:

From time to time, the Search team may receive copyright removal requests for search results that link to other Google products like Blogger or YouTube. In these cases, we forward these requests to the appropriate teams to evaluate the allegedly infringing material.

Actually, maybe "process" is too generous. If they "evaluate" the requests (twice, apparently—once at Search and then again at Blogger), surely they would filter out a takedown like this one that doesn't even pass the laugh test. And not only did these two evaluations fail to catch it, the review they supposedly conducted after receiving a counternotice still didn't catch the error. Given the nature of the law and the requirements it places on Google, all of this is somewhat understandable, and would be somewhat excusable but for one thing: Google's terrible customer service. Blanket, form-letter rejections that ignore all reason and logic, sent by a faceless monolith, are among the most infuriating things a customer can receive. Good luck getting actual help with a human being.

But the buck hardly stops at Google. It doesn't even really land there. After all, why did Inspection 12 file this takedown in the first place? Chitu asked them just that:

I've contacted Inspection 12 and they say "that must have been submitted in error. not fully understanding the DMCA notice. our intent wasn't to post on a blog or complaints about a blog. it was to submit a complaint to google about websites that are posting lyrical content that is falsely described as Inspection 12 lyrics in order to sell ringtones."

That's a lot better than some of the furious missives we've seen in the past when copyright holders have been called on their shenanigans, but there are still some big problems. If you're "not fully understanding the DMCA notice," then you are not allowed to file it. How can you sign your name to say you have a "good faith belief" in something if you knowingly don't understand what it means? Inspection 12 is clearly guilty of abusing the DMCA process. But one thing they're probably not guilty of is perjury.

And that brings us to the final problem, where the buck really does stop: the DMCA itself. As we've discussed before, the prescribed text of a DMCA takedown notice employs some clever wording to imply (intentionally or otherwise) that it's more strict on the rightsholder than it actually is. The "under penalty of perjury" language is surgically separated from the bulk of the notice—it applies only to the statement that you are the copyright holder or an authorized agent of the copyright holder. As for the statement that the material you are targeting is in fact infringing, that's just made under a good faith belief. That is a much lower bar, and while it's not great to stand in court and have it demonstrated that you asserted a good faith belief when there was none, it's hardly a clear-cut and substantial safeguard against abuse the way "penalty of perjury" is.

So let's be clear on this: the DMCA is harsh on anyone messing with copyright holders by incorrectly claiming rights they don't own, but lenient on copyright holders abusing the public.

Nobody is blame-free here, except Chitu and his blog. Google needs to handle these requests better, and Inspection 12 should never have sent that notice (nor should they be wasting their time on a DMCA campaign against lyric websites in the first place). But the real culprit is the DMCA itself, which is constantly pushing companies like Google in this regrettable direction, and makes it all too easy for rightsholders like Inspection 12 to abuse the law. Until we get a system that holds both sides of the equation to the same standard, and until copyright holders demonstrate that they can use the takedown system judiciously and responsibly, all their protestations about online services not doing enough to fight infringement will fall on deaf ears (or be drowned out by laughter).

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via Techdirt. http://www.techdirt.com/articles/20130422/09303922801.shtml

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