Google Begins Making DMCA Takedowns Public

Attention DMCA lawyers: Try to remove a web site from Google's index and you'll probably just make it more popular.

In an apparent response to criticism of its handling of a threatening letter from a Church of Scientology lawyer, the popular search engine Google has begun to make so-called "takedown" letters public. DMCA-censored pages are now two clicks and a cut-and-paste away from the regular search results.

The full text of two new letters to Google, dated April 9 and 10, already appears on the free speech site chillingeffects.org. "I think it's great that they're calling attention to the way the takedown provision can be used to compromise their search results," said Wendy Seltzer, Fellow of Berkman Center for Internet & Society at Harvard Law School and co-founder of chillngeffects.org.

Google is still choosing to take advantage of the Safe Harbor provision of the Digital Millennium Copyright Act, which allows web sites to escape liability for copyright infringement if they take pages down in response to properly formed letters.

In a controversial move last month, Google pulled all pages from the anti-Scientology site xenu.net then restored the site's home page amid Internet outcry, just as Linux Journal readers were on their way to visit Google in person to ask for help finding censored pages about the alien warlord Xenu who is a key figure in Scientology's creation legend.

Only the name and telephone number of the attorney who wrote the letters have been removed from the copies on chillingeffects.org. Both of the new letters originate from the Los Angeles law firm of Moxon & Kobrin, where attorney Helena Kobrin has long been Scientology's standard-bearer against church critics on the newsgroup alt.religion.scientology and other online fora. Kobrin was not immediately available for comment

The letters are also linked to directly from Google search results. When results would have included a DMCA-censored page, the results page now includes a link to the takedown letter that resulted in the page being removed. A search this morning for site:xenu.net scientology produced the message:

"In response to a complaint we received under the Digital Millennium Copyright Act, we have removed 8 result(s) from this page. If you wish, you may read the DMCA complaint for these removed results."

Failing to act in response to a DMCA takedown letter is not against the law. "They can always choose not to take advantage of the safe harbor," Seltzer said. However, only by complying with the letter and taking pages out of their index can Google escape a possible copyright infringement lawsuit.

Finally, Google has expanded its DMCA page to include instructions for Counter Notification under the DMCA. A webmaster who believes that a non-infringing page is being unfairly censored can write the proper legal incantations and have the page put back into the index.

Google is then required to forward this Counter Notification to the original notifier, and then put the page back in the index "not less than 10 or more than 14" days after Google receives the Counter Notification. If your site is pulled out of Google and you're confused, chillingeffects.org has a web form that will generate a correctly formed Counter Notification.

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Google Should Not Publish All DMCA Letters!

Anonymous's picture

I'm not talking about this particular case, but I think publishing DMCA letters that are legit just sounds like a tactic to stop trademark owners from complaining and protecting their marks! Google should be protecting trademark owners. This sounds like a punishment just so Google has less work to do! I don't think this makes Google look good at all. I've been an advertiser with them for years now and I'm disappointed that they would not respect trademark owner's privacy. Not right. I definitely do not trust Google anymore.

Re: Google Begins Making DMCA Takedowns Public

Anonymous's picture

Don’t be surprised to read headlines about the Scientology Cult members committing suicide while waiting for the spaceship to arrive. This is another sad story that’s likely to end up like the Jim Jones saga hurting many families who's children have been brainwashed.

Yes but it's not Google's or

Some Guy's picture

Yes but it's not Google's or any other company's job to protect your children from bad content ... People keep forgetting that they're parents and it's their duty to watch over their kids and educate them, as for Google's decision to make the take-downs public, it's a great idea because the internet was created to be a real "free zone" (unlike the real world) not some place where everything is censored/controlled by companies and/or governments, but somehow the concept got lost and we lost the internet (where we have the access only to the information they want us to know, just like in the real world).

Re: Google Begins Making DMCA Takedowns Public

Anonymous's picture

Sad? I'm looking forward to it! Serves 'em right for buying into that dianetics bullsh*t.

Re: Google Begins Making DMCA Takedowns Public

Anonymous's picture

I would like to say a few things to everyone who is bashing Scientology:
1. Scientology is a religion, as much as Christianity or anything else.
2. If you bash the obvious deficits in Scientology, you must also closely scrutinize the other religions in order to remain impartial.
3. Christianity seems like the long left over remnant of a cult (following a single man around, abandoning everything else, consistency errors, etc.) and if people want to follow either Scientology or Christianity, that is their personal choice. Everyone's individual choice for religion is just that: their individual choice.
4. Stop being traditionally biased pricks.
Just to note, I'm not a Scientologist.
-xitrium

actually

Anonymous's picture

in response to xitrium

1) Yes, Scientology is a religion.

2) "if you bash the obvious deficits in scientology, you must aslo closely scrutinize the other religions in order to remain impartial." Uh..who claimed to be impartial? Who made you ruler of impartiality? and..i will bash any religion, any way I can. Thank you!

3) why is it that everyone says "be impartial", be careful what you bash..and then "see this religion is just as idiotic. If you trully want to remain impartial then you must either choose a side or shut up. full stop. contradictary? hey.. im just repeating what your saying.

4) ill stop being a "traditional biased prick" (whatever that means..everyone has biase) ..when you stop being a narrow minded "all traditional thinking is crack" modern thinking, stuck in a box a$$hole.

Re: Google Begins Making DMCA Takedowns Public

Anonymous's picture

Maybe I`m smoking crack, but a search on Google for "xenu" or "scientology" returns xenu.net pretty high up in the list.

Re: Google Begins Making DMCA Takedowns Public

Anonymous's picture

"xenu" or "scientology" returns xenu.net pretty high up in the list.

I think you missed the bit about Google relisting the home page only. That page is basically an index and reveals no supposed trade secrets of Lafayette's self-hypnotised zombie army.

Terl would be ripping holes in the carpet by now. (-:

Terl

Anonymous's picture

'Ware MacroMedia, but otherwise read about Terl here.

Lafayette did a reasonable, albeit bloated job on this novel (I haven't seen the movie, and probably won't). He didn't get so lucky on his ten-volume series (it got boring real quick). Apparently, Scientology is the result of LRH forgetting where fiction ended.

If it's bad for scientology, it's good for you!

Anonymous's picture

Way to go, Google. Not just for the larger legal implications, but for the immediate issue of keeping the truth about scientology readily available to those who are smart enough to search for it. I think the DMCA is an immoral, stifling, disgusting, money-driven, business-forward, consumer-damning pile of putrid, vile trash. Scientology is even worse. =/

Re: If it's bad for scientology, it's good for you!

Anonymous's picture

Don’t be surprised to read headlines about the Scientology Cult members committing suicide while waiting for the spaceship to arrive. This is another sad story that’s likely to end up like the Jim Jones saga hurting many families who children have been brainwashed.

Re: If it's bad for scientology, it's good for you!

Anonymous's picture

What we need is a new country - a country for those unwilling to live under ridiculous, corporate, conformist-oriented laws passed by those who have no idea what they're talking about.

Let's find a reasonably large island, and declare a new country. No DMCA, no RIAA, no Hollings, no corporate whores.

I suggest somewhere tropical - if we're gonna do it, let's do it in style!

A geekdom is the way to go.

Re: If it's bad for scientology, it's good for you!

Anonymous's picture

You're not the first person to come up with this idea... if enough of us band together, it's doable... we could even build our own covert operations units to take out *ssholes like Hollings. I'd volunteer. ;)

Re: Google Begins Making DMCA Takedowns Public

Anonymous's picture

The maintainer of xenu.net, who lives in another country, does not want to submit himself to US jurisdiction; hence, he has not filed a Counter Notification.

Re: Google Begins Making DMCA Takedowns Public

Anonymous's picture

I wouldn't either... the system is shiat.

Re: Looping the loop

Anonymous's picture

So what? they only have to add a copyright tag to the letter and if someone publish it they can threaten with the DMCA in another copyrighted letter.

Okey, I just made this up. Would it be possible?

Re: Looping the loop

Anonymous's picture

Copyrigt does not depend on the presence or absence of a copyright notice, and hasn't since 1978 (in the United States, longer in most other countries).

Now, something that is copyrightable becomes copyrighted as soon as it is "fixed" - record in any type of recoverable media (traditional or electronic).

For things with economic value, the copyright notice is still significant, in that it allows the copyright holder more options in pressing a lawsuit and limits possible aspects of defense.

There's a strong argument that providing these DMCA letters is permissible under the "Fair use" rules:

1) the "purpose and character of the use" is noncommercial and informative of a public controversy

2)"the nature of the copyrighted work" - such DMCA letters are not exactly prototypical works of authorship, rather their limited copyrightabilty is incidental; they are essentially "functional" rather than "expressive"

3) publishing essentially all of the letter tends to factor against "fair use"; however it's not a bar, the various factors in a "fair use" analysis are weighed collectively and complete copying has been held top be "fair use" in some circumstances

4) because there is essentially no general commercial market for such works as DMCA letters, the 4th statutory element of "fair use" analysis strongly favors a determination of "fair use" - "no harm, no foul", where "harm" is *economic* harm due to lost ability to commercialize the copyrighted work.

Re: Looping the loop

Anonymous's picture

a legal threat as I understand it is a public document...can't be copyrighted :p

Re: Looping the loop

Anonymous's picture

AFAIK, legal documents can't be copyrighted.

Re: Looping the loop

Anonymous's picture

Probably not. The recepient can do whatever they want with the letter itself, since it was not part of a requested good or service.

Re: Looping the loop

Anonymous's picture

A copyright is not depending on the presence of a copyright tag. This does of course make the issue you brought up even more interesting.

Re: Looping the loop

Anonymous's picture

IANL but I don't think this works. There are legal precedents involving people who published collected letters where the author didn't want them published. The courts found that the recipient owned the letter and could publish if he wanted to. These letters had an implicit copyright that all written work has.

Now if you were to write a license agreement on the envelope stating that you were not allowed to publish the contents and opening the envelope signified agreement...............

Re: Looping the loop

Anonymous's picture

If they send it via registered mail, then they have legal proof that you have recieved it. If you recieve it and don't open it, you're still effected by it's contents. Given that, I don't know if it's legal to put any binding agreement into the opening of the envelope since it's a legal issue that they must be ABLE to read the document (hence the registered mail) for the contents to be in effect.

Re: Looping the loop

Anonymous's picture

Easy Solution: Place the letter and a pound of semtex in another envelope, put a trigger on said envelope (rigged to go off upon opening it)... send it back to them, same day airmail. If they want to play rough, they shouldn't be surprised when someone plays rough back. :)

Re: Looping the loop

Anonymous's picture

If you were sent a letter that said that would you open it? I'd mark it return to sender, and drop it in the nearest mailbox, or put it in a larger envelope with a note that if they'd like me to read their letter, they may send it in a diffently-marked container.

Re: Looping the loop

Anonymous's picture

a) Owning the letter is not the same as owning the copyright of a letter - the recipient owns the letter but the sender has the copyright

b) the cases I'm familiar with, the letters were being published for reasons of scholarship, which is relatively favored in "fair use" analysis

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