The Incredible, Vanishing Internet (and the DMCA)

In the time that it takes you to read this paragraph Google will have removed eight sites from its search engine indexes. Sorry, make that forty.

Having analyzed the numbers from Google’s latest Transparency Report, TorrentFreak and other media outlets report that the world’s largest search engine removes approximately 8-9 sites from its indexes every second. This is done in order to comply with takedown requests issued through the United States’ Digital Millennium Copyright Act (DMCA).

In spirit, Title II of the DMCA works to balance the interests of intellectual property (IP) rights-holders with the technological and economic needs of Internet-based services and companies. Section 512 introduces a ‘notice-and-takedown’ mechanism that allows IP rights-holders to alert online services, such as search engines, about the existence of infringing content or websites.

This procedure is designed to limit the liability of online service providers by giving them ‘safe harbor’ protection against monetary liability that could otherwise result from the infringing activities of third parties. Amongst other conditions, these liability limitations are granted if “upon obtaining such knowledge or awareness [of infringement], [the service provider] acts expeditiously to remove, or disable access to, the material” (DMCA, Sec. 512(c)(1)(A)(iii)). Section 512 also provides opportunities for challenging notices and/or takedowns that are considered improper or illegitimate.

Although criticized for its unintended consequences, the combination of the ‘notice-and-takedown’ mechanism with the ‘safe harbor’ provisions has been critical to the continuing evolution of the Internet as a tool for social and economic growth. However, there are concerns that this system and the spirit of the law are being manipulated and used for purposes not related to copyright infringement.

In a Yale Law School Information Society Project talk, “Revising the Copyright Act for the 21st Century”, Google’s Legal Director for Copyright, Fred von Lohmann, stated that the company is seeing an increase in the amount of DMCA notices that are used for non-copyright related purposes or as a form of censorship. These developments problematize the DMCA system at a time when search engines and other online service providers are facing criticism.

In particular, creative industry representatives are taking aim at the perceived inaction of search engines to deal with how they link to websites containing infringing content. In a recent statement to the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, the Chairman and CEO of the Recording Industry Association of America (RIAA), Cary H. Sherman, took aim at Google and mentioned the company 19 times. This is a topic the organization is familiar with: in the past year, the RIAA submitted nearly 30 million notices to Google.

Responding to an August 2012 policy statement from Google, which laid out the search engine’s plans to adjust its algorithm to downgrade websites with repeated instances of copyright infringement, Sherman argued “our studies … indicate that sites for which Google has received hundreds of thousands of infringement notices are still appearing at the top of search returns. Worse still, users are being directed to these sites through the use of ‘autocomplete’ features”.

These calls come as Google and other online service providers and technology companies are increasing collaboration efforts aimed at minimizing the viability of infringing websites. On 15 July 2013, Victoria Espinel, then the U.S. Intellectual Property Enforcement Coordinator, announced that “24/7 Media, Adtegrity, AOL, Condé Nast, Google, Microsoft, SpotXchange, and Yahoo!, with the support of the Interactive Advertising Bureau” were committing to a set of Best Practices Guidelines for Ad Networks to Address Piracy and Counterfeiting. This voluntary system will work to disable advertising support for websites that are identified through the notice-and-takedown system and “are principally dedicated to selling counterfeit goods or engaging in copyright piracy”.

Time will tell if the current ‘notice-and-takedown’ regime and the emerging Ad Network Best Practices will have a significant impact on curtailing infringing websites. With the number of legitimate and illegitimate websites growing on a daily basis, both the content and the online service industries face an uphill battle. What is certain, though, is that in order for these industries and the broader public to thrive in the future, the calls for copyright reform need to be carefully calibrated so that government regulations and business policies contribute to the sustainability of the Internet Economy.

In theory, relying upon voluntary and technological means for content filtering will be beneficial. However, as recent cases have shown, the all-seeing but non-contextual ‘eye’ of an algorithm-based approach can lead to problems and unintended consequences. While imperfect, the current DMCA-based approach provides necessary tools for protecting the rights of creators and IP rights-holders as well as challenging mechanisms that can be used to oppose illegitimate uses and protect the rights of citizens and the public at large. The real test will to be to ensure that the spirit of the DMCA can be promoted and protected going forward.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at York University, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.