The online publishing community is experiencing a crisis caused by malicious entities filing false DMCA notices in order to remove competitors from search results. Many are calling on Google to do something because publishers are trapped by a copyright law that has become a weapon against them.
Disclaimer: This article is intended for informational and educational purposes only and does not constitute legal advice. For legal advice regarding a specific DMCA dispute, please contact a licensed attorney.
Digital Millennium Copyright Act (DMCA)
The DMCA is a law that took effect in 1998. The goal was to modernize U.S. copyright law by giving digital creators a way to enforce their existing copyright protections. Another part of the law gave internet platforms what is known as Safe Harbor, a legal framework that allows them to host content without being dragged into lawsuits for copyright infringement.
The goals of the DMCA were well-intentioned:
- Give digital creators a way to protect their work from plagiarists and other violations.
- Providing a way for internet platforms to thrive without the threat of copyright lawsuits hanging over them. All they had to do was provide digital creators with a way to report copyright violations.
The system was working well until bad actors figured out how to abuse the system.
Why Google is forced to remove content
A platform’s obligation to remove content is defined in the DMCA law, 17 USC § 512(c)(1)(C) which clarifies that platforms are not liable for infringement claims if they comply with a multi-part set of legal terms. In addition to meeting various requirements, they must meet subsection (C), which specifies that the supplier:
“…upon notice of an alleged infringement as described in paragraph (3), respond promptly to remove or disable access to the material that is claimed to be infringing or to be the subject of infringing activity.”
Why Google Can’t Reject False DMCA Claims
Many people are calling for Google to judge whether a copyright claim is false itself in order to stop malicious DMCA claims. But Google can’t do that because it’s asking Google to make a legal decision. Only a federal judge has the authority to judge whether a copyright claim is false or founded.
It is therefore not simply that the law omits this requirement. The reality is that a private platform cannot legally make that call. Evaluating the validity of a copyright claim is a judicial act that only a judge has the authority to decide.
Why it takes weeks to restore falsely flagged content
Many people complain that Google takes a long time to restore content. There’s a reason it’s taking so long.
The DMCA requires platforms to provide a way to report copyright violations so that infringing content can be removed. But it also requires platforms like Google to accept a counter-notification from the alleged infringer, who are increasingly innocent publishers who are victims of false DMCA claims.
Once this counter-notice is received by the platform, a clock begins to tick. This is the start of a waiting period of up to 14 business days, intended to give the DMCA complainant time to file a federal lawsuit so that a federal judge can decide whether the copyright complaint has merit.
If no federal action is filed, the content that was removed is restored. This is why it takes Google so long to restore content that was removed due to a false DMCA claim.
Why the DMCA Problem Will Only Get Worse
What has become clear now is that the DMCA never makes Google (or anyone else) responsible for determining whether or not a DMCA notice is valid. Their job is simply to accept the notice and remove the infringing content. And if they receive a counter notice disputing the claim, they are required to restore the content (after 10-14 business days).
Google is not required to investigate and decide whether the copyright infringement claim is valid or whether the person filing the claim is real.
The task of judging the legality of a DMCA claim for copyright infringement belongs to a federal judge. Indeed, once a counter notice is submitted, the platform must wait 10 to 14 business days to give the DMCA requester time to file suit in federal court. To prevent reinstatement of the content, the entity that filed the original DMCA complaint must file a federal court action within that time frame.
Publishers who are victims of false DMCA claims frequently complain about the time it takes Google to restore their content after disputing the false DMCA claims. But Google waits this long because it’s a legal obligation.
There is also a provision that allows a party falsely accused of infringement to file a federal lawsuit against the malicious DMCA plaintiff.
DMCA law states:
“Any person who knowingly makes a material misrepresentation under this section: (1) that any material or activity is infringing…shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or authorized licensee of the copyright owner, or by a service provider, who is harmed by such misrepresentation, as a result of the service provider’s reliance on such misrepresentation to remove or disable access to the material or activity claimed to be infringing, or by replacing the removed material or ceasing access to it.
But that doesn’t help the innocent party who is falsely accused of forgery because the fraudsters use fake email and physical addresses. This problem will only get worse as more bad actors learn that they can file false DMCA claims and get away with it.
Publishers have a serious problem with fake DMCAs
An unintended consequence of the DMCA is that bad actors have learned to take advantage of it to harm their competitors or minimize reputational damage caused by unflattering online articles.
Former Googler Pedro Dias (LinkedIn profile) has been posting about this issue for months. He recently drew attention to an article about a false DMCA complaint filed against a news organization. Her comment:
“Google has a serious problem and no one is working to fix it…Nor is willing to.”
But is this Google’s problem? If they follow the law, is it reasonable to expect them to change a legal process that currently keeps them in compliance? Many may think that Google is leaving publishers to fend for themselves in a broken system that has backfired.
Featured image by Shutterstock/Elnur
