Google Is As Google Does: How Google Cheats Both Sides of the DMCA Takedown Process

Stephen Carlisle October 8, 2014

The controversy over the leak of celebrity nude photos ¹ took a new turn last week. A lawyer claiming to represent “dozens of female celebrities, actresses, models and athletes” threatened to sue Google for its alleged failure to remove the photos in question from their search engines results, Google hosted blogs and YouTube, even though they had been the subject of numerous DMCA takedown notices. ² It had been previously noted by TorrentFreak, that 45% of the material referenced in a particular takedown notice remained up, with no action taken. ³

“Google doesn’t explain its decision keep the links in question in its search results. In some cases the original content had already been removed at the source site, so these URLs didn’t have to be removed. Other rejections are more mysterious though. For example, the thefappening.eu URLs that remain online all pointed to stolen images when we checked. Most of these were not nudes, but they certainly weren’t posted with permission.” ⁴

In response to the celebrity lawyers’ threats, Google released a statement. According to the Hollywood Reporter, Google claims “[w]e’ve removed tens of thousands of pictures — within hours of the requests being made — and we have closed hundreds of accounts.” ⁵ This is what is known as a “non-denial denial.” Google never answers the charge that some of the pictures continue be available after receiving takedown notices to remove them. Instead, they trumpet all the good work that they have done. Eriq Gardner, the reporter on the story speculates that “[a]s for search, Google says it has historically taken a different approach — removing items when they receive valid copyright notices. The key word there is “valid,” as Google could be taking extra scrutiny when determining the validity of a copyright claim.” ⁶

David Newhoff at the Illusion of More website gave this analysis:

“…Google is supposedly relying on an untested legal theory that the copyright holder of a selfie can only be the button pusher at the time of the taking. This seems hardly relevant with regard to the matter of just acting like decent human beings; if images are known to be stolen, and the subject(s) of those images request that your for-profit search business remove links to them, you ought to do it on principle alone. But this is not the mindset of the web industry despite its many self-aggrandizing proclamations as the engineers of social change for good.” ⁷

Point taken. Google could, if it had the will to, remove the offending URL’s just in the name of protecting the privacy of the individuals involved, and being a good corporate citizen. Even the writers at TorrentFreak, who by no means are friends of copyright, could clearly see that the links pointed to material that were the subject of the takedown notice and “certainly weren’t posted with permission.” Yet Google has failed to remove them, without giving any reason why.

The question then becomes, does Google really have the discretion under the law to determine whether a takedown notice presents a “valid” copyright claim? Google clearly thinks that it does. In Google’s transparency report there is this rather bold statement:

“Reasons we may decline to remove URLs include not having in enough information about why the URL is allegedly infringing; not finding the allegedly infringing content referenced in the request; deducing that the copyright removal process is being used improperly … or fair use.” ⁸

The problem with this is that nowhere in Section 512 does it grant the recipient of a takedown notice the discretion to engage in a fair use analysis. That statute only says that a company like Google “upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity…” ⁹ This is the essence of the “safe harbor” provision. The grant of immunity is predicated on a “no questions asked” system. If you don’t know the material is infringing, the receipt of the notice should obligate you to take the material down, not pick apart the request in a fair use analysis, or acting as judge and jury on whether a request is improper. ¹⁰ If the request is improper, or the use is a fair use, then the remedy is to have the aggrieved party file a counter-notice. ¹¹

But of course, Google being Google, cheats that process as well.

Consider Google’s YouTube. Google states that Google, and only Google, has the ability to determine whether a counter-notice filed against YouTube should be acted upon. It claims that it has the final say and you have no ability to complain if you feel Google has wrongfully denied your counter-notice. ¹² How did Google get the ability to ignore the law? Like all good tech companies, it’s buried in your terms of service. Here is the operative language:

“Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube’s sole discretion.”

As they say on TV, “but wait-there’s more!”

The reason for the rejection of your counter-notice is not limited to what Google thinks, but what the owner of the content thinks. As reported by Patrick McKay at Fair Use Tube, Google has granted veto power over counter-notices to certain content owners who provide Google with material for YouTube. ¹³ This provision is truly buried and the only way I could find it was through a link in Mr. McKay’s blog post. Again, here is the operative language:

“Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available.” ¹⁴

According to McKay’s post, some of the beneficiaries of this policy are the record companies operated by Universal Music Group. ¹⁵ So, by contract, UMG can get your video taken down, and have it stay down, even though it might be fair use. Remember you agreed to give “sole discretion” to Google as to whether to reinstate your video, and in turn Google has sold you out to UMG.

This is the latest ploy in a rather disturbing trend, namely the efforts of big tech companies, to eliminate your rights under the copyright act through the use of language buried in the TOS. It started with Microsoft eliminating your rights under the first sale doctrine, by getting you to agree that what you thought was a sale, was in fact a non-transferable “license.” Next up, as reported in a previous blog post, was the effort to use TOS to eliminate fair use. ¹⁶ Now, we have Google taking away your right to file an effective counter-notice under the DMCA.

Again, as they say on TV, “but wait-there’s more!”

Google’s much publicized “Content ID” system, which automatically flags and removes videos from YouTube, carries with it a rather cynical requirement. According to Harvard Business Professor Ben Edelman:

“Google offered the [Content ID] filter only to rights-holders who signed license agreements to let Google use their content. A copyright holder who simply wanted to keep its content off of YouTube had no means to do so: the company could not use Google’s filter because Google conditioned use of the filter on receipt of a license to the underlying content; and the company could not run its own filter because YouTube’s Terms of Service disallow the automated access and bulk downloads necessary for efficient searches.” ¹⁷

So, for those of you scoring at home, here is the box score:

• Google has the ability to flag and keep infringing material off YouTube but refuses to do so
• Google will subject your DMCA takedown notice to a validity and fair use analysis, even though it has no legal authorization to do so under the copyright statute
• Google will flag and keep infringing material off YouTube without the necessity of a DMCA takedown notice if you agree to let them use your content
• If you’re a big enough player, Google will agree to let you to summarily reject valid counter-notices

So presumably, the reason why offending photos remain up in the face of a takedown notice, is that the heavy traffic generated by the photos means more money for Google, and it is looking for any excuse that it can to not remove the material. That they would put their safe harbor at risk, instead of taking down obviously stolen material, says an awful lot about the Google mindset. Google watchdog Scott Cleland has this rather lengthy list of Google’s legal and ethical transgressions, ¹⁸ the biggest of which was the 2011 non-prosecution agreement with the U.S. Department of Justice in which it paid a $500,000,000 fine to avoid criminal prosecution for assisting the illegal importation of prescription drugs from Canada. You read that right, a half a billion dollars was paid by Google to avoid criminal prosecution. You can read the non-prosecution agreement here. ¹⁹

If Google has the wherewithal to pay a fine of a half a billion dollars, this means that the mere $100 million in damages claimed in the demand letter for the hacked celebrity photos ²⁰ will not cause many sleepless nights at Google headquarters.

What would cause some sleepless nights is for a Court to rule that Google’s shenanigans in cheating both sides of the DMCA takedown process means that it has lost its safe harbor as an entire company, and is now liable for all the infringements occurring on all of their platforms and websites.

This may seem like an extreme remedy, but may be the only way to rein Google in. It literally operates as if the law does not apply to it, especially where there is money to be made.

Harvard Business Professor Ben Edelman:

“[I]t’s hard to reconcile Google’s engineering strength — capably indexing billions of pages and tabulating billions of links — with the company’s supposed inability to identify new advertisements mentioning or targeting a few dozen terms known to deceive consumers. From these facts, I could only suspect what the DOJ investigation now confirms: Unlawful ads persist at Google not just because advertisers seek to be listed, but also because Google intentionally lets them stay and even offers them special assistance.” ²¹

News Corp. Chief Executive Robert Thompson’s letter dated September 17, 2014 to European Commissioner for Competition Joaquín Almunia had this to say:

“The shining vision of Google’s founders has been replaced by a cynical management, which offers advertisers impressively precise data about users and content usage, but has been a platform for piracy and the spread of malicious networks, all while driving more traffic and online advertising dollars to Google. A company that boasts about its ability to track traffic chooses to ignore the unlawful and unsavoury (sic) content that surfaces after the simplest of searches. Google has been remarkably successful in its ability to monetize users, but has not shown the willingness, even though it clearly has the ability, to respect fundamental property rights.” ²²