I was told by a colleague who attended the Section 512 round tables in San Francisco that a consistent response from representatives of the OSPs was that anecdotes about harm to rights holders from piracy or YouTube-style infringement are not sufficient. “We need data,” was apparently an oft-repeated imperative. This is funny because that same crowd loves anecdotes about abuse of DMCA, and well they should because the anecdotes are likely to be more compelling than the data on that matter. But sometimes, the anecdotes are downright bizarre, as with this story reported yesterday in The Guardian by Alex Hern. It is in fact the story of the DMCA abuse that wasn’t there.
At first reading, one assumes that this is a typical story about some non-copyright holding entity misusing the DMCA in order to attempt to censor criticism of its business. In a nutshell, a UK citizen named Annabelle Narey had a bad experience with a UK building company called BuildTeam, and she consequently posted a negative review on a parents’ news and comment site called Mumsnet. Her initial post prompted a thread of other users sharing their own bad experiences with the same company, which apparently prompted BuildTeam to try to have the negative reviews removed, even initimating possible defamation. But then, Hern writes this:
“Mumsnet received a warning from Google: a takedown request had been made under the American Digital Millennium Copyright Act (DMCA), alleging that copyrighted material was posted without a licence on the thread.
As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.”*
Initially, this description sounded odd to me for several reasons, not the least of which is that it would take about 30 mintues or less for Mumsnet to review 126 posts of this nature, which are usually quite short. More than that, though, under the DMCA, a properly filed notice has to identify the Allegedly Infringed Work (AIW) and state under penalty of perjury that the filer is the owner, or agent of the owner, of that work. As such, what work was the filer alleging had been infringed in a thread of comments? Because if the notice just said something as generic as “contains infrininging material,” then the notice should have been rejected by Google. More confusing still, as Hern goes on to describe, the filer of the take down request wasn’t even BuildTeam. Who it was is not quite clear.
Hern describes a strange sequence of events in which a guy named Douglas Bush plagiarized Narey’s original post, published it on a “spammy website,” and also pre-dated the post to a day three months prior to the day Narey had originally published it. Then, it appears that the registered owner of said spammy website, a Mr. Ashraf of Pakistan, may have been the one to send the DMCA takedown notice pertaining to the original thread. It sounds a bit like a ham-handed attempt at a copyright scam; but suffice to say, there is nothing legit about the take down request, and Google should not have processed it at all. Moreover, under these circumstances, Mumsnet should not have had any fear of restoring the material via counter notice, as Hern suggests they might. He writes the following:
“Whoever sent the takedown request, Mumsnet was forced to make a choice: either leave the post up, and accept being delisted; fight the delisting and open themselves up to the same legal threats made against Google; or delete the post themselves, and ask the post to be relisted on the search engine.”
What?? There is no such thing as “whoever sent the request.” This DMCA filing clearly fails to meet statutory requirements, and the apparent sender is apparently in Pakistan! Mumsnet should have had no concern regarding litigation from anyone as a result of restoring this material. But then, Hern reports this:
Mumsnet deleted the post, and asked Google to reinstate the thread, but a month later, they received final word from the search firm: “‘Google has decided not to take action based on our policies concerning content removal and reinstatement’ which (it turned out) meant that they had delisted the entire thread”.
Again, what in blazes is going on in this story? Because it looks an awful lot like Google just plain messed up. Yet, for all its muddy details, Hern is presenting this tale as a prime example of how copyright becomes censorship on the internet, blaming the law itself for his own conclusion that “ … sites like YouTube, Twitter and Google … are forced to develop a hair-trigger over claims of copyright infringement, assuming guilt and asking the accused to prove their innocence.”
That’s a familiar refrain that rings hollow with legitimate rights holders who make proper use of DMCA. Meanwhile, Google has often fought tooth, nail, and elbow against delisting search results, asserting past refusals to do so as a matter of principle. And that’s in cases involving clearly infringing links. Why is the search giant, as Hern states, suddenly on a “hair trigger” to delist this little thread of consumer comments about a building service, where a copyright infringement is highly unlikely to exist? And why should rights holders who have an interest in legitimate take down requests continue to have those interests denigrated by the general characterization that DMCA is so often used as a tool for censorship?
The potentially compelling part of this story is the matter of what Mr. Ashraf was actually intending. If he was the one to publish someone else’s post as his own and then use DMCA to attempt to assert an infringement claim against the original, what did he hope to achieve? Is this a new kind of scam, general mischief, or a third-party exercise in censorship? It seems to me all the parties involved, including Google, should want an answer to this question, rather than settle on the familiar but misguided conclusion that copyright itself is the villain.
*It should be noted that Mumsnet does not use an internal search tool for its comment threads, but in fact uses Google Search. This would appear to be a factor in this story.