We really do need a way to properly punish abuses of DMCA takedown requests.
The DMCA takedown notice allows rights holders to perform targeted removals of infringing… I can’t even finish that sentence with a straight face. IN THEORY, it can. In reality, it often resembles targeting mosquitoes with a shotgun. Collateral damage is assumed.
Case in point: Internet Brands recently issued two takedown requests to protect some of its cruelty-free, farmed content originating at LawFirms.com. It’s this phrase — taken verbatim from LawFirms’ “Penalties for Tax Evasion” — that has triggered the takedown notices from Internet Brands.
Tax evasion refers to attempts by individuals, corporations or trusts to avoid paying the total amount of taxes owed through illegal means, known as tax evasion fraud.
The first takedown targets several URLs, some of them merely content scrapers. Other URLs listed (like this one) target posts with comments containing parts of IB’s post — even comments providing a link back to the original article being quoted.
The second (at least according to Google’s non-numeric sorting) is a repeat of the first, except for the addition of a Techdirt post. At first glance, the targeting of this article by Tim Geigner — “Dear Famous People: Stop Attempting Online Reputation Scrubbing; I Don’t Want To Write Streisand Stories Anymore” — would appear to be exactly the sort of behavior Dark Helmet was decrying. But it isn’t.
The phrase triggering the Internet Brands takedown can be found in a very late arrival to the comment thread, more than one-and-a-half years after the original post went live. It opens up with this:
This is a very interesting. I read the whole article at New York Magazine. So someone is accused of tax evasion and then charges are dropped and then tries to clean up his reputation…. nothing wrong with that.
Then, for no apparent reason, the commenter drops in the LawFirms.com paragraph highlighted above.
Now, here’s the problem. If blogs and other sites are reposting others’ content without permission, that’s one thing. But targeting whole posts for delisting just because a commenter copy-pasted some content is abusive. It could very possibly take out someone else’s created content — covered under their copyright. Using a DMCA notice in this fashion can allow unscrupulous rights holders to bypass Section 230 protections — effectively holding site owners “responsible” for comments and other third-party posts by removing the site’s original content from Google’s listings.
From the looks of it, Internet Brands did nothing more than perform a google search for this phrase and issue takedown notices for every direct quote that originated from somewhere other than its sites. It didn’t bother vetting the search results for third-party postings, fair use or anything else that might have made its takedown request more targeted. Internet Brands doesn’t issue many takedowns, so it’s not as though its IP enforcement squad had its hands full. In fact, there’s every reason to believe actual humans are involved in this process, rather than just algorithms — all the more reason to handle this more carefully. Here’s a little bit of snark it inserted into a 2014 DMCA takedown notice.
The interview and photos are published on our website and permission hasn’t been granted for anyone else to republish them. Not only is the content stolen it out ranks our website in a Google search for the keyword “th taylor”. So much for Google being able to identify the source of original content!
If a company has the time to leave personal notes for Google (which doesn’t have the time to read them), then it has time to ensure its requests aren’t targeting the creative works of others just to protect its own. The DMCA notice isnot some sort of IP-measuring contest with Google holding the ruler. If Internet Brands thinks it is — or just hasn’t bothered to vet its takedown requests before sending — it’s usually going to be the one coming up short. If Google doesn’t ignore the request, those on the receiving end of a bogus takedown will make a lot of noise. Either way, it”s accomplished nothing.