Maybe Google Means “See No Evil”

Yesterday, Google chairman Eric Schmidt was interviewed on public radio and simulcast on Google Hangouts.  WAMU’s Diane Rhem threw softballs, slow and over the plate at Schmidt, providing a friendly platform for the chairman to evangelize the many ways Google makes the world a better place.  Coincidentally, I happened to be editing the following:

For those who don’t know, ChillingEffects.org is a database and website managed by the Electronic Frontier Foundation and The Berkman Center for Internet & Society.  It is a presumptive watchdog over the presumptive misuse of DMCA takedown notices — the implication being that free expression is “chilled” whenever such an abuse takes place.  In principle, this might seem like a reasonable thing for the EFF to oversee; after all, we don’t want free speech to get chilly, even if there is diminishing hope that speech is necessarily getting anymore valuable in the digital age.  But it turns out that whenever, say, Google receives a DMCA takedown notice for a link to infringing material, every one of these complaints is sent to ChillingEffects so that users are, in principle anyway, able to read the details of the complaint from the notice sender.   So for example, if you were to search the term “Expendables III,” which was weeks ago leaked before its theatrical release, you would find among the search results a notice from Google that reads as follows:

In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.

In many cases, the link to the complaint will not provide the user with much information, and it’s a bit of a mystery what most users might do with the information anyway.  After all, if you’re the creator of a file like a YouTube video that is taken down by a rights holder, you can have access to the information needed to rectify the fault, if indeed it was a false claim.  What’s truly obnoxious about this notice, and even the name ChillingEffects itself, is the not-very-subtle implication that DMCA takedowns are by default abusive and generally chill free expression. Ya see what they did there?  And by they, I mean Google, which funds ChillingEffects to no one’s surprise I’m sure.  Now, enter the Hollywood hacked photo scandal and a twist on that story that, as Eriq Gardner recently wrote for The Hollywood Reporter, “might reveal something about Google’s policies toward flagged copyrighted content.”

What Garder is referring to is the fact that former Kate Upton beau, Detroit Tigers pitcher Justin Verlander, delivered via his attorneys takedown notices identifying 461 URLs that were hosting racy photos of him and Upton. Of those URLs, Google removed links to 51%, drawing a distinction, according to Gardner, between nude photos and racy-but-clothed photos, irrespective of the fact that all of the photos in question were indeed stolen and are being published without permission.  Never ones to lose an opportunity to be complete tossers about copyright, Google is supposedly relying on an untested legal theory that the copyright holder of a selfie can only be the button pusher at the time of the taking.  This seems hardly relevant with regard to the matter of just acting like decent human beings; if images are known to be stolen, and the subject(s) of those images request that your for-profit search business remove links to them, you ought to do it on principle alone.  But this is not the mindset of the web industry despite its many self-aggrandizing proclamations as the engineers of social change for good.

Google seems to be concerned with a much higher principle than invading the privacy of a baseball star, a supermodel, or frankly you or me, and that’s the principle of doing whatever the hell it wants without consequences.  I think Gardner is right and that Google would love nothing more than a court case to affirm its position that these photos, though acquired illegally, are not the intellectual property of Mr. Verlander and that he, therefore, has no right to request their removal under DMCA.  This could even prove to be technically accurate; the copyright owner of a photo is the individual who exercises sufficient creative control (not the button pusher), so these images could still be the intellectual property of Miss Upton if indeed they were hacked from her account.  But that doesn’t mean Google isn’t benefitting from traffic driven by a prurient interest in seeing photos that were stolen and believed to be secure by their owners.  And Gardner also raises a valid point about ChillingEffects when he writes, “Google has in effect provided a road map for any voyeur looking for sites that refuse to remove stolen photos.”

All of this falls within the scope of the broad agenda maintained and well-funded by the Internet industry to foster a policy of “anything goes.”  As long as we allow them to gloss over privacy invasions, infringements on intellectual property, and profiting from social harm in the name of free speech, we only end up harming free speech in the long run.

© 2014, David Newhoff. All rights reserved.

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23 comments

  • As most of us are aware, the EFF is just google’s lapdog… an unofficial lobbyist and promoter of all things google. Sure, you might be able to dig up a disagreement or two between them, but that’s just for show/to feign deniability.

    I honestly don’t know how chilling-effects hasn’t been sued out of existence for being a site primarily dedicated to infringement, because they’re just a repository of links supposedly “taken down” (ie, uncontested infringing urls) that in effect keep the take down ..up. That google places the chilling effects link in liu of the previous link- essentially linking to their own piracy server link farm. They both should be held liable and forced to comply with the law.

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  • David–
    “[Chilling Effects] is a presumptive watchdog over the presumptive misuse of DMCA takedown notices — the implication being that free expression is “chilled” whenever such an abuse takes place. … What’s truly obnoxious about this notice, and even the name ChillingEffects itself, is the not-very-subtle implication that DMCA takedowns are by default abusive and generally chill free expression. Ya see what they did there? And by they, I mean Google, which funds ChillingEffects to no one’s surprise I’m sure.”

    Abusive DMCA notices are necessarily harmful toward free speech; you’re conceding that in such cases of abuse, there is no legitimate claim to be made, or that it is overshadowed by other sinister reasons for forcing material to be taken down.

    As for legitimate notices, even they are pernicious. The problem with the DMCA is that it is meant to allow material to be taken down without proper due process; it’s no better than the infamous Florida foreclosure “rocket docket,” in which courts have been having people kicked out of their homes without banks being able to prove that they have a right to take the property. If a copyright holder claims that they hold the rights to material which has been put online without authorization, and they want it removed, we already have a process for this: an infringement lawsuit seeking injunctive relief under 17 USC 502. The DMCA is designed to bypass the courts from the get-go, and is so inviting of fraudulent claims, incorrect claims, and abuse, that it practically has a special welcome mat laid out for that.

    Also, you may want to look into the history of Chilling Effects — they were founded independently of Google, and Google only started forwarding takedown notices to them after the Church of Scientology tried to abuse the DMCA in order to silence their critics online; exactly the sort of thing that everyone expected would happen, and which you seem to believe is unheard of.

    “In many cases, the link to the complaint will not provide the user with much information, and it’s a bit of a mystery what most users might do with the information anyway.”

    Then what do you care?

    “After all, if you’re the creator of a file like a YouTube video that is taken down by a rights holder, you can have access to the information needed to rectify the fault, if indeed it was a false claim.”

    OTOH, as J. Brandeis said, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

    Rights holders who use the DMCA legitimately surely have nothing to fear from their activities being monitored. But knowledge is power, and transparency is essential for any sort of legal system. Failure to monitor this information would be to render ourselves willfully blind, unable to know if the law was working, if it needed improvement, if it was being abused. Why do you seem to advocate ignorance on this subject? How has ignorance ever helped anyone?

    “Of those URLs, Google removed links to 51%, drawing a distinction, according to Gardner, between nude photos and racy-but-clothed photos, irrespective of the fact that all of the photos in question were indeed stolen and are being published without permission. Never ones to lose an opportunity to be complete tossers about copyright, Google is supposedly relying on an untested legal theory that the copyright holder of a selfie can only be the button pusher at the time of the taking.”

    Once again, you seem to have contradicted yourself in the space of two sentences. Either their distinction is between being naked or dressed, or it is that there is an actual legal requirement in the DMCA that claimants be rightsholders. The former is absurd, and Google has too many smart people in their legal department to rely on what is pretty certainly some sort of straw man of your own devising. The latter is a very real issue, though.

    The case you should be thinking of, by the way, is Burrow-Giles Lithographic Co. v. Sarony. In it, the Supreme Court said:

    “[I]n regard to the photograph in question … ‘plaintiff made the same … entirely from his own original mental conception, to which he gave visible form by posing the [subject] in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.’ These findings, we think, show this photograph to be … the product of plaintiff’s intellectual invention, of which plaintiff is the author”

    The distinction isn’t as simple as who pressed the button or not. It’s entirely possible for the person who pressed the button not to be the author, and for the subject to be the author. But essentially it comes down to who exerted artistic control over the photograph. Think of it this way: If a paparazzo had burst in and taken the photo, there would be no question whatsoever that the subject had no copyright interest in it, because they did not take any action to create the picture. Just having your picture taken isn’t enough. Pictures taken of you, taken by a spouse or lover, are no more yours merely because you consent to them. The subject must make an artistic contribution. And even then, it’s still complicated due to the way that rights might then be allocated.

    In any event, that was the case that allowed photographs to even be copyrightable in the US. It is serious black letter law. There’s nothing untested about what I expect is Google’s actual legal theory (as opposed to what you imagine it might be).

    And if Google is right, and the claimant lacks a copyright over the works — another excellent reason for a real judicial process that can sort this out, instead of the half-assed DMCA — then the DMCA notice is invalid. DMCA notifications, according to the DMCA itself, ultimately have to come from a rights holder. Random people, even if they happen to be in the work, don’t count.

    And in any case, anyone can always ignore DMCA notices. There’s no legal requirement that works be taken down. It’s just that the DMCA safeharbor no longer protects you if you ignore the notice and then get sued for infringement.

    The funny thing is, you know this full well, but could not resist the straw man, for you go on to say “This could even prove to be technically accurate; the copyright owner of a photos is the individual who exercises sufficient creative control (not the button pusher)”

    No, it’s not necessarily the button pusher. But almost always, yes, the button pusher is going to be the rightsholder.

    “But that doesn’t mean Google isn’t benefitting from traffic driven by a prurient interest in seeing photos that were stolen and believed to be secure by their owners.”

    I’m fairly confident that given how much money Google makes from totally innocuous means, whatever ad revenue there is to be had from this would not be worth their time to pick up off of the ground. I think it’s the principle that they’re interested in.

    AudioNomics–
    “As most of us are aware, the EFF is just google’s lapdog… an unofficial lobbyist and promoter of all things google. Sure, you might be able to dig up a disagreement or two between them, but that’s just for show/to feign deniability.”

    Ha! That’s like saying that the ACLU is a far right-wing organization because they defended Nazis. EFF tries to uphold certain principles, and at times this puts them on good terms with Google. At other times, e.g. Google’s bad stance on privacy or it’s anticompetitive labor practices, it doesn’t. You’re finding a conspiracy where none exists.

    “I honestly don’t know how chilling-effects hasn’t been sued out of existence for being a site primarily dedicated to infringement, because they’re just a repository of links supposedly “taken down” (ie, uncontested infringing urls) that in effect keep the take down ..up.”

    Well, first, as I pointed out above, there’s no obligation for anyone to take links down. Section 512 is merely voluntary. Second, you’d have to show some sort of indirect infringement. It’s clearly not vicarious or inducing. And there’s little reason to think that it’s contributory.

    Your question is about on par with wondering how Agatha Christie wasn’t put in jail for giving murderers ideas on how to kill people.

    • The assertion that Chilling Effects “sheds sunlight” on abuse, though that is its PR claim, is an absurdity predicated on the assumption that the majority of DMCA takedown requests are abusive. Chilling Effects is a marketing tool. That’s why I referenced leaked Expendables III, for which there is no excuse and for which no claim of abuse could possibly be made with regard to the producers’ efforts to cut off access to that leak. To put a clearly legitimate claim under the words Chilling Effects communicates a message to users — and the younger they are, the more effective it is — that the rights holders are in some way harming free expression. And in practical terms, as Gardner points out, as AudioNomics points out, Chilling Effects provides guidance to those who would infringe or invade privacy, and it’s shocking that you would use the “if you haven’t done anything wrong, you have nothing to worry about” argument in this case. DMCA is not rife with abuse as the EFF would have people think it is, but it is a virtually useless tool for rights holders to attempt to request legitimate takedowns.

      The quote where you say I contradict myself is paraphrasing Garnder; but I do state in my brief, layman’s terms that it is possible that Verlander is not the rights holder. From a social or cultural perspective, however, if all of the photos are known to be stolen, regardless of nudity or with whom the rights reside, Google ought to agree to remove the requested links for the sake of not being dickheads. If Google wants to stand on principle that Verlander can’t make a DMCA claim unless he can prove he’s the rights holder, then they might as well keep the links live for the nude photos as well; but I suspect they make the distinction for PR reasons, not legal ones.

      As for the relationship between Google and the EFF, there’s no conspiracy theory necessary. The organization is heavily funded by the Internet industry, particularly Google, and frequently cherry-picks positions that serve Silicon Valley while simultaneously giving that industry a pass on issues of apparent concern. I refer specifically to the EFF’s chronic obsession with US intelligence services privacy invasions and its kid-gloves approach to Internet industry privacy invasions. I refer also to its tone. Despite having more than 40 lawyers (last time I counted) on staff, it doesn’t produce a lot of calm, legal analysis for public consumption, but rather produces a lot of screeching headlines designed to elicit fear over . . . SOPA, the NSA, the TPP, Net Neutrality, and so on . . . all coincidentally positions that serve the business agendas of their industry. And there’s nothing wrong with serving those interests. I work with Copyright Alliance, which serves the interests of producing industries and independent creators. But I’ll compare and contrast the messages coming out of those two organizations anytime because the EFF produces a ton of scary-sounding but substance-free material on any number of subjects. I’ve been in communications a long time, and the EFF resembles a PR company more than it does an advocacy group. That is likely not how it started out, but I believe that’s what it’s become.

      • [A court document drafted by a recipient of Google’s generosity appears to show that the latter comes with strings attached, prohibiting university researchers from investigating its controversial data slurping practices.
        “Since 2013, Google funding is specifically designated not be used for CIS’s privacy work.”]
        http://www.theregister.co.uk/2014/09/26/googles_uni_funding_comes_with_strings_attached_claim/

        it is indeed a small world where quasi-criminal businesses get to pour $millions into University Privacy research centres so long as they don’t investigate the quasi-criminal business itself, and where the lawyers bringing the class actions settle for a fraction of what the class might be entitled to get most of the money themselves and a few 10s of $millions gets distributed to the University Privacy research centres that have agreed NOT to investigate the quasi-criminal business itself.

      • Yeah, I saw some stuff about this flying around and haven’t had a chance to get into it myself yet. Thanks!

    • anon– “You’re finding a conspiracy where none exists.”

      Right…

      ” Well, first, as I pointed out above, there’s no obligation for anyone to take links down.”

      So how is that “chilling”? And you’re wrong that :
      “The problem with the DMCA is that it is meant to allow material to be taken down without proper due process”

      It’s trivial to file a counter notice if indeed you are the less than 1% that has an incorrect notice.
      No, the “chilling effects” serves as an intimidation tool for people exercising their rights under the law. It’s equivalent to a poll tax, and needs to go away in its current form. If they wanted to “shed sunlight”, doesn’t it make more sense to list notices that were countered rather than all the very legit ones?

      • No, the “chilling effects” serves as an intimidation tool for people exercising their rights under the law

        Boo hoo. If you are scared your DMCA notice will be scrutinized, that’s a probable hint that you shouldn’t have filed it in the first place. Any legal action has a chance of backfiring, being questioned by the public, amogst other things. I apologize that you don’t have total dictatorial power over the justice system and the public opinion because you mixed together a couple of songs.

      • Rubbish – Google and the parents who’s photos were being used for age related sex chat on Orkut. “Hello my names is Mary. I’m 8 years old. I love to suck on my daddies …”

        Parents complain to Google, Google wants driver license id for kids, after a week parents start sending DMCA takedowns and get threatened with chilling effects. As the bad publicity starts to roll Google suddenly starts doing what they should have done 2 weeks previously.

    • My theory is they just hate the name “Chilling Effects” for the oversight organization. My benefit of the doubt comes from the fact that it would be pretty fucking insane to see nothing wrong with allowing anyone (yes, anyone can file a DMCA notice) to take any content off the the Internet without any oversight.

      • I wouldn’t care if they JUST posted erroneous takedowns, but they post ALL legitimate notices, as if having your life’s work stolen isn’t “chilling” on its own.
        Now you’re threatened by Google that they’ll post your personal info for all the nutcases to see if you won’t let them monetize your work.

        Chilling effect isn’t “oversight”. What hole did you pull that out of?
        Seriously.. I agree the dmca is broken (it doesn’t go far enough), it’s meant to be a civil way to avoid costly litigation , though you are certainly not denied your due process if it is used erroneously, you can defend yourself in court if it comes to that….but the fact is that OVER 99% of the shit taken down shouldn’t have been posted in the first place, and the tiny minority that is in error gets put back up with 24-48 hours anyhow.
        I see you don’t care of the overwhelming burden put on creators to be the internet police with nothing but a flashlight for protection..

      • This what happens when people can’t rely on the DMCA and seek private justice. In this case the company at the centre of it said they had been duped and bought the rights from someone claiming the copyright. Whatever. It never got to court because within hours of Rebekka publicizing what had happened the company was receiving death threats, and threats to burn down their premises. Within three days the company was shuttered and its owners in hiding. This is the alternative to the DMCA.

      • There is a reason why court cases are public, transparency is important to a effective justice system. If DMCA notices were not public, it would be nearly impossible to track what and how things are being censored on the Internet.

  • The DMCA notice system is a malicious and harmful system that is entirely contrary to the basic premise of justice. The filing of a DMCA notice for any reason is a inherently malicious activity that short circuits the judicial process by allowing content to be censored on the Internet without requiring any proof.

    It’s no wonder that rightholders participating in this deeply unethical system want their actions not to be scrutinized by the public. It takes a basic level of understanding of fairness to realize that any law allowing a petitioner the power to issue injunctions BY THEMSELVES, with little oversight to be immoral and unethical.

    • Sticking one of my architecture location photos on a site selling hotel accommodation, and a DMCA follows. Plaster a page with geo tagged images because someone has searched for Electricians in Harrisburg and you get a DMCA.

      • It doesn’t excuse you from taking it down without having a neutral third party (eg. a judge) involved.

      • Get this I don’t give a fuck! There is no fair-use in using images simply to tart up a commercial webpage.

        The alternative to the DMCA is that I splash out a few 100 to get someone to do their legs.

      • M-” It doesn’t excuse you from taking it down without having a neutral third party (eg. a judge) involved.”

        omg, seriously?
        You can JUST AS EASILY send a counter notice, and it goes right back up… If that happens it’s THEN possible to have a court hearing. Seriously, with hundreds of millions of notices and growing, the court docket would be booked for the next 100 years in less than an hour. I’m sure you would get your jollies if that happened (and so would I, as it would expedite legislation to fix the damn thing already)

      • Get this I don’t give a fuck!

        Well I think that’s unethical.

      • Where I came from if you pissed us off we didn’t go running to the police and the courts. You just got a kicking as you left the pub, your car got dowsed in battery acid, or you came home to find that your house had been smeared in dog shit, the walls, the beds, the inside of all your kitchen appliances and equipment etc.

      • So, case in point?

      • Case in point is that mostly the RIAA and the MPAA play nice. Think that Sinatra’s backers would have spent 4 years and $100,000s going through court systems to enforce a takedown? If the legal system makes it impossible to obtain public justice then private justice becomes more likely. The operators of these sites are not unreachable. A couple of weeks ago a pair of reddit scumbags thought they were anonymous on wikipedia, they ended up with a google map tag above their bedrooms. If we can do that with random jerks on a website, site operators are even more accessible. Kim Dotcom doesn’t have bodyguards to protect himself from the police.

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