How can a lawyer explain Google Bowling? Nicolas Wells is not your ordinary lawyer, that’s how. He has been practicing intellectual property law for eight years, founding a boutique law firm in 2009 that handles technology and intellectual property issues, with offices in New York and Salt Lake City. Before that, Nicolas got his MBA and worked in the software industry doing technical marketing, mostly in the open source/Linux space. Nicolas has also authored several textbooks on system administration and network security. So, we have a technologist/marketer turned IP attorney that I was pleased be able to interview on the newest form of negative SEO or Google Bowling–illegal using copyright law against your competitors.
Me: Can you describe the purpose of the Digital Millennium Copyright Act? I bet most of our readers don’t know much about it.
NW: The DMCA was pretty controversial when it was passed in 1998. It was needed in order to comply with a couple of treaties that the U.S. had signed, but in general, its purpose was to update the Copyright Act (which was completely revised in 1976) to take account of the impact of new technologies.
There were two biggest concerns that the DMCA tried to address. First, the balance between the public interest in using copyrighted material and the use of technological measures for preventing copying (think of digital rights management–DRM). The DMCA prohibited interfering with DRM even when use of the underlying material might not otherwise violate copyright. That is still a controversial part of the law and many people think the DMCA goes too far.
The second concern that DMCA tried to address was that companies facilitating Internet communications (telecoms, ISPs, web hosting companies) would face legal liability because they hosted or transmitted copyright infringing materials. They were considered a big target for litigation because they had the money to pay damages, but they said, Hey, we can’t be responsible for what our customers store on our servers or transmit across our networks. Congress agreed with that assessment and formalized it in the DMCA.
Me: What is a takedown notice? Who requests a takedown and what must happen upon that request?
NW: A takedown notice is a formal letter that the owner of copyrighted material can send to any search engine, ISP, or web hosting provider that is facilitating the online display of infringing materials. A takedown notice must include certain things under the DMCA, such as a statement of what copyrighted work is being infringed and the URL where the infringement is located. When a search engine or web hosting provider receives a takedown notice, they must either remove access to the URL referenced in the takedown notice or else they may be jointly liable (with the customer who actually runs the website) if the copyright owner sues for infringement.
Me: How do search engines respond to takedown notices?
NW: They’re in a tough position. If they remove the material referenced in a takedown notice, they risk having angry customers. If they don’t remove the material, they risk legal liability. And yet they can’t do a full legal evaluation of every copyright infringement claim. They don’t have the time to do that. So in most cases, they just remove access to the material (they “take down” the web page in question). I’ve read that in early 2009, Google stated that about a third of the takedown notices they received didn’t reflect valid copyright claims, in their opinion. I don’t know how much legal research they did to get that number. More recently, however, Google has said that they remove search results for 97% of the takedown notices they receive. So they are exercising some judgment for at least the other 3%, but remember, they are now receiving tens of thousands of these takedown notices every day, so it’s got to be a real challenge.
I should mention the rest of the law as well. If the owner of the website that is the subject of the takedown notice sends a counter-notice to the search engine or web hosting provider, then the material can be placed online again and the search engine or web hosting provider is no longer legally liable. The counter-notice takes the search engine out of the picture so that the website owner and the copyright owner have to just work it out legally, via a lawsuit or otherwise. The search engine no longer has joint liability. The challenge is that most website owners don’t have any idea how to send a properly formed counter-notice, and so the person sending the original takedown notice usually wins by default, so to speak, because Google acts on most of them simply to protect its own interests.
Me: You’ve said that spammers and other nefarious types can resort to takedown notices to hurt their competitors–how would that work?
NW: Let me be clear, sending a takedown notice when you don’t have a valid basis to send one is illegal. Unfortunately, a lot of people may see it as an easy way to hammer the competition and think they won’t get caught because of the sheer numbers of takedown notices that search engines are now dealing with.
All you have to do is create a list of webpage URLs from your competitor’s website, then create a matching list of descriptions of your fake copyright claims. For example, you might see a photo on a particular page of your competitor’s site and decide to claim that the copyright to the photo belongs to your company. Now you spend about two minutes on Google submitting each set of data. In a few hours, you could submit several hundreds takedown notices that covered virtually every major page on your competitor’s website.
There’s no telling how much analysis Google would do in a particular case. Sometimes a competitor really does copy huge parts of another company’s website, and many large media companies submit thousands of takedown notices. But in general, a person willing to expend a little effort (and having no scruples about acting illegally) could probably do real damage to a competitor.
Me: What can companies do to protect themselves from these activities?
NW: The first thing is to make sure your lawyer knows something about the DMCA, including how and where to send a counter-notice to major search engines and your hosting provider. Beyond that, keep an eye on your website for disappearing pages.
Me: Has Google or Microsoft commented publicly on this?
NW: To my knowledge, they have not commented specifically on the threat that I’ve highlighted from an illegal attack. They have stated that not all takedown notices are legitimate. But obviously there’s a difference between an uninformed person mistakenly sending in a takedown notice and an organized effort to sabotage a competitor.
Me: Is there any possibility that the law could be changed or that court decisions might rein in this practice?
NW: Congress regularly considers bills that would modify the DMCA. But it’s a difficult balance. On one side you have the interests of copyright owners trying to prevent infringing uses of their materials. That ranges from motion picture studios dealing with pirated movies to a local photographer whose images have been used without permission. On the other side, you have members of the public who have an interest in using materials where there is a fair use argument, or an exemption to copyright, or no copyright at all.
Court decisions have already said that a takedown notice is inappropriate if there is a reasonable fair use argument for the use of a copyrighted work. That gives legitimate users of takedown notices pause—you don’t send them without considering your legal position. But here we’re talking about people illegally taking advantage of the fact that search engines receive millions of these notices and are trying to act efficiently to avoid legal liability.
A change in the law that would remove this possibility would be difficult, but a court case where someone received a stiff penalty for inappropriately spamming a search engine with takedown notices would dissuade more people from risking this type of action.
Me: Thanks so much for this great information, Nicolas.