Absurd Automated Notices Illustrate Abuse of DMCA Takedown Process

From the Electronic Frontier Foundation:

Every month, TorrentFreak reports on absolutely ridiculous takedown notices issued by copyright holders to Internet service providers related to allegedly infringing content, using the process created by the Digital Millennium Copyright Act (DMCA). This month, TorrentFreak tore apart a series of takedown notices sent to Google by the German-based Total Wipes Music Group targeting, among other things, an EFF webpage describing how to use PGP for Mac OS X—a webpage within our Surveillance Self-Defense guide.

TorrentFreak aptly dubbed Total Wipes’ latest streak of takedown requests as “the world’s most idiotic copyright complaint.”

Indeed, the notice that cites the EFF webpage as an “allegedly infringing URL” purports to protect an album called “Cigarettes” on Spanish music label Mona Records. But not one of the seven allegedly infringing URLs listed in the notice even refers to the album, let alone in an infringing way. Another notice issued by Total Wipes to Google two days earlier purports to target pirates of the album “In To The Wild – Vol.7″ on music label Aborigeno Music. Again, not one of the 95 allegedly infringing URLs had anything to do with music, as TorrentFreak reported. The notice instead listed generic download pages for some of the world’s most popular online services, including Skype, Tor, Dropbox, LibreOffice, Python, and WhatsApp.

Total Wipes, which represents 800 international labels, stated in an email to Ars Technica that the recent notices were the result of a bug in their automated anti-piracy script. According to the email, “several technical servers [sic] problems” during the first week of February caused their automated system to send “hundreds” of DMCA notices “not related at all” to any of their copyrighted content.

But the bug is only part of the problem. Sending automated notices, without human review, is itself an abuse of the DMCA takedown process.

The Problem With Robots

According to the DMCA, a takedown notice must be based on a “good faith belief” that the targeted content’s use of copyrighted material is not authorized by law. The use of robots, without any human review, simply cannot satisfy this standard. Indeed, whether a use of copyrighted material constitutes a fair use protected by federal copyright law is often a question only a human can answer, after taking into account the context and purpose of the speech in question.

Total Wipes’ utterly laughable takedown notices illustrate the serious flaws in using robots to try to detect copyright violations. But even without bugs, robots cannot be relied upon to determine whether any given use of copyrighted material is lawful.

We have in the past criticized Warner Brothers Entertainment for using robots to issues thousands of infringement accusations, without any human review, based primarily on filenames and metadata rather than inspection of the files’ contents.  Like Warner Brothers, Total Wipes is similarly using robots to abuse the DMCA takedown process.

According to Google’s Transparency Report, between May 28, 2014 and February 22, 2015, Total Wipes sent Google 41,321 requests to remove webpages from Google’s search results, with a median of 1,214 requests per week. Across those requests, the music group requested that Google remove a total of 196,963 URLs. And according to the Chilling Effects database—which collects and analyzes legal complaints and requests for removal of online materials in an effort to help Internet users know their rights and understand the law—Total Wipes sent Google over 12,000 takedown requests in the last month alone.

Seeing ridiculous takedown requests from Total Wipes is nothing new. Back in August, TorrentFreak reported on a month-long DMCA notice-sending spree in which the music company targeted, among other things, sites that utilized the word “coffee.”

Due to the lack of human review, automated takedown notices often result in censorship of perfectly legal content. Although Google has the wherewithal to analyze takedown notices and reject those that are unwarranted, it doesn’t always do that. And many other sites automatically take down allegedly infringing content upon receipt of a notice, even when the notice is clearly bogus. This is because so long as a service provider complies with the DMCA’s notice and takedown procedure, it is protected from monetary liability based on the infringing activities of third parties. Of course, unwarranted takedown requests would not subject a service provider to monetary liability, but not all service providers undertake even the moderate level of effort that Google does to assess whether content complained of should actually be taken down.

The Need for Transparency

TorrentFreak was only able to discover Total Wipes’ ridiculous DMCA takedown notices thanks to Google’s Transparency Reportwhich publishes takedown requests—and data regarding takedown requests—made by copyright owners or their representatives to remove web pages from Google’s search results.

Link to the rest at the Electronic Frontier Foundation

Here’s a link to the Google Transparency Report. You’ll see a Content Removal section on the home page and links to several reports. At the Copyright and Google Search section, PG was interested to learn that Google has received take-down notices for 5,955,310,383 URLs.

Per Siteefy, there are a total of more than 1,139,467,659 websites in the world. Of that number, 17% (197,046,670 websites) are active. The 83% which are inactive, Siteefy says most “are parked domains or have a similar function.”

So, in round numbers, with about two hundred million active sites, Google has received take-down notices for about Six Trillion URLs.

Sounds like the take-down-notice industry is overkilling the internet.

With a bit of searching, PG found information about penalties for false copyright infringement claims here and, in the US, 17 U.S. Code § 512, sub-section (f) relating to limitations on liability relating to material online. Someone who is the subject of an improper take-down notice can receive damages plus attorneys fees incurred in defending the claim of copyright infringement.

Last month, the Ninth Circuit Court of Appeals (which has jurisdiction over California and its very large number of creative businesses with very valuable copyrights) held that copyright owners must determine whether the alleged violation of their copyrights is “fair use” under US Copyright law.

A California IP Law Firm wrote the following on its web site:

In an important decision affecting copyright owners, online hosts, and creators of user-generated content, the Ninth Circuit, on Monday, issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content in order to comply with the Digital Millennium Copyright Act (DMCA). The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees under Section 512(f) of the DMCA for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube.

See here for the rest of the commentary from Cowan, DeBaets, Abrahams & Sheppard LLP

15 thoughts on “Absurd Automated Notices Illustrate Abuse of DMCA Takedown Process”

  1. There needs to be a provision added for punitive damages, otherwise the best that someone can hope to do who is hit by a takedown attempt is to break even, There need to be teeth added to hurt the people issuing notices like this.

  2. There is a provision for attorneys fees, D., as there is for other copyright violations.

    Attorneys fees are at the court’s discretion, but generally, federal judges are likely to award attorneys fees if the defendant (or defendant’s counsel) acts like a jerk, unreasonably delays the proceedings, etc.

  3. Several notes, from a veteran of and continued observer of takedown battles.

    • I respectfully note that PG must have been typing a bit hastily concerning the Ninth Circuit’s requirement for consideration of (not determination of) whether the alleged infringement is protected by the fair use defense. It wasn’t “last month,” but “last decade” — a 2015 opinion — and it had been best practices among actual attorneys (not automated systems!) since not later than 2012.

    • There are four formal factors for the winner of a copyright infringement suit obtaining attorneys’ fees, and a host of others (PG’s suggestion that one is acting like a jerk is all too relevant… and all too common). These are commonly referred to as the Fogerty factors, and the rain of briefs invoking them will never stop as we run through the jungle of badly written cease-and-desist letters, legal pleadings, and music-industry contracts.† The key point relevant here, though, is that attorney’s fees are not available to the recipient of a takedown notice if the alleged infringement was of an unregistered work. Section 512 allows any copyright-interest holder to file a DMCA takedown notice, even for unregistered works. But attorneys’ fees under the Copyright Act are available only concerning an infringement of a registered work. (Needless to say, this has been a significant problem!)

    • Anyone who thinks the new small claims copyright-grievance system is going to help with this hasn’t read the rules for the new small claims copyright-grievance system.

    † Thank you, thank you, I’ll be here all week.

  4. Well, that explains it. It’s not lawyers sending these things, but robots. If robots can replace artists, why not lawyers?

    • About 25 years ago, long before the advent of TPV, when I was in an entirely different type of lawyer with different clients, I wrote an automated document assembly program to handle all the papers necessary for 99% of the divorce clients I was dealing with at the time.

      If the client had to spend 15 seconds or more to locate his/her checkbook before writing a check to pay my retainer fee, all the initial papers for the client’s divorce had started pouring out of my laser printer before the client left the office.

      Typically, my secretary would contact the client the next day to tell them their divorce documents were ready to sign as soon as they could conveniently make it back to the office.

      Most of my divorce clients lived within a 5-15 minute drive from my office. If a client lived farther away, I would suggest he/she go out to get something to drink/eat and come back in an hour or so.

      As far as the quality of the documents, I sold copies of my software to about 20% of the members of the bar in my state. On one occasion, a judge told a newbie lawyer who hadn’t done divorce before to buy a copy of my software after the newbie had screwed up the necessary paperwork.

Comments are closed.