Copyright Blog Update: Meet the New and Improved “Whack-A-Mole”

Back on July 23, 2014, this blog examined in detail the problems with the Digital Millennium Copyright Act’s “takedown notice.” In particular, I explained the “whack-a-mole” problem, where infringing material is immediately reposted by the offending site. Also, I detailed how Google forwards all takedown notices to the Chilling Effects organization in an effort to publicly shame those content creators bold enough to demand that their rights be respected.

These past weeks have provided some new twists. For its part, Google published a document titled “How Google Fights Piracy,” 1 asserting that it was demoting URLs in the search results that receive a large number of takedown notices. It also repeated the tired mantra that Google does not really aid in directing people to pirate sites. I would like to present you the verbatim text, but somehow the document disables the “copy and paste” function on my computer. That’s some mighty fine “transparency” you’ve got there Google. But I digress.

The effort was immediately derided by some artists as ineffective, 2 but on further review, perhaps it was not. The TorrentFreak website reported yesterday that a new UK pirate website was using a special webcrawler and algorithm to actively promote listings back to the top of Google results after being demoted. 3 It works like this:

“‘We created a technology that crawls DMCA notices and resurrects the torrent webpage under a different URL so it can appear in search results again. It was rather complicated to sharpen it, but eventually it works pretty well. We will use it on for all the websites we proxy,’ FileSoup explain. [sic] ‘It will lead to a situation when (for example) will have more pages indexed in Google than the original because we will revive pages banned by DMCA within Google search results. We call this technology the Necromancer.’” 4

And where do they get the information for the banned URLs? Why, from Google of course, and its partner in crime, the Chilling Effects organization.

“The team behind the site say they have developed a web crawler designed to pull the details of content subjected to DMCA notices from two sources – Google’s Transparency Report and the Chilling Effects Clearing House. From here the links are brought back to life.” 5

In other words, the Google and Chilling Effects “transparency reports” are little more than a road map of where to find pirated content. This has been complained about before, particularly by the Copyright Alliance. 6 There have even been attempts to remove those listings via DMCA takedown, reports the TorrentFreak website. “Home Box Office has tried to de-index Chilling Effects pages 240 times, with Microsoft and NBC Universal making 99 and 65 attempts respectively.” 7

Google, of course, being Google, ignores these DMCA notices. 8

So, to add to the already burdensome “whack-a-mole” process, we now find the new and improved game of whack-a-mole where infringing content is easily indexed and reposted by third parties, thanks to the handy listing provided by Google and Chilling Effects. I ask again, whose speech is being “chilled” here?

Just how determined and amoral the pirates are was highlighted by this exchange with the reporter at TorrentFreak:

“’But what happens when FileSoup itself is subjected to takedown notices of its own?’

‘When FileSoup receives a DMCA abuse notice we create a new URL address for the same content. After that this URL lives till the next DMCA abuse notice,’ the team explain.” [sic]

In other words, they are pre-planning the next round of whack-a-mole. But not so fast, smug pirate. By scanning the lists of banned URLs from Google and Chilling Effects, you are re-posting material that you know is infringing as it has already been the subject of a takedown notice. And by simply copying material that is subject to a DMCA notice sent to you to a new URL, you are also re-posting material you know is infringing. (NB: It also “mirrors” the Pirate Bay website which is banned in the UK. 9)The key to DMCA safe harbor is that you do not have notice that the material is infringing. So this website absolutely does not qualify for DMCA safe harbor from the word “go.”

Now, being located in the UK, the DMCA does not apply to them. But the UK law is fashioned after the EU e-commerce directive. 10 It provides that “a ‘hoster’ cannot rely on the directive’s [safe harbor] protection if they have actual knowledge, even if they have not been served with a notice of any kind.” 11 So the owners and operators of this website are subject to a lawsuit in the UK, starting right now. And if minimum contacts with the United States exist, they can be sued here immediately as well.

So perhaps these internet pirates are too clever by half. But once again, Google’s assertions about their vigilant fight against piracy are not credible, search engines remain an important cog in the piracy machine, and the need for “takedown” to become “take down and stay down” becomes even more pressing and necessary.

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