Not long ago, I received this lovely message from Google:
Blogger has been notified, according to the terms of the Digital Millennium Copyright Act (DMCA), that certain content in your blog is alleged to infringe upon the copyrights of others. As a result, we have reset the post(s) to \”draft\” status. (If we did not do so, we would be subject to a claim of copyright infringement, regardless of its merits. The URL(s) of the allegedly infringing post(s) may be found at the end of this message.) This means your post – and any images, links or other content – is not gone. You may edit the post to remove the offending content and republish, at which point the post in question will be visible to your readers again.
A bit of background: the DMCA is a United States copyright law that provides guidelines for online service provider liability in case of copyright infringement. If you believe you have the rights to post the content at issue here, you can file a counter-claim. In order to file a counter-claim, please see http://www.google.com/support/bin/request.py?contact_type=lr_counternotice&product=blogger.
The notice that we received, with any personally identifying information removed, will be posted online by a service called Chilling Effects at http://www.chillingeffects.org. We do this in accordance with the Digital Millennium Copyright Act (DMCA). You can search for the DMCA notice associated with the removal of your content by going to the Chilling Effects search page at http://www.chillingeffects.org/search.cgi, and entering in the URL of the blog post that was removed.
If it is brought to our attention that you have republished the post without removing the content/link in question, then we will delete your post and count it as a violation on your account. Repeated violations to our Terms of Service may result in further remedial action taken against your Blogger account including deleting your blog and/or terminating your account. DMCA notices concerning content on your blog may also result in action taken against any associated AdSense accounts. If you have legal questions about this notification, you should retain your own legal counsel.
The Blogger Team
Now, I was a bit stunned at this. The text of the post, “Dr. Hunter’s PACS” was all my own creation (obviously). I may have been a bit sloppy in crediting photos, but I tried to do so fairly consistently.
My repeated attempts to find the full text of the violation were thwarted by the rather slow and overworked chillingeffects.org website. An email to the organizers finally yielded the link to the offense:
Sent via: online form: Form
Re: Infringement Notification via Blogger Complaint
Google Form: copyright DMCA Complaint of alleged copyright infringement
1. Complainant’s Information
Company name: Destination360
Full legal name of the copyright holder: Destination360
Country of residence: GB
2. Your copyrighted work
Location of copyrighted work (where your authorized work is located):
Description of the copyrighted work:
3. Allegedly Infringing Material:
URL of the allegedly infringing material in our search results:
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. [checked]
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. [checked]
Signed on this date of:
For those of you who have seen the post, and it got a lot of hits due to the presence of the word “hunter” in the title, the opening photo pictured a fellow in orange hunting gear presumably taking aim at Bambi or some other edible creature. In fact, should you Google “utah-hunting.jpg”, you will see this same photo at least a dozen times, with only one of those on the website of the claimed copyright owner, Destination360.com, and none of the remainder have been prosecuted as near as I can tell. I guess the owners aren’t quite as facile with Google as I am. Even so, D360 is very possessive of its photos. A further search of chillingeffects.org revealed almost 300 DMCA complaints filed by this company or its representatives.
How did Google/Blogger get involved? ChillingEffects explains:
Question: Why does a web host or blogging service provider get DMCA takedown notices?
Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of “Information Residing on Systems or Networks At Direction of Users.” This safe harbors give providers immunity from liability for users’ possible copyright infringement — if they “expeditiously” remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials its users post, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA’s takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.
Basically, Google evades litigation by taking down my “offending” post. I get that.
Destination360.com is certainly entitled to its rights. I do apologize for using the photo without explicit permission, and it has been removed. A lawsuit is the last thing I need. However, I DID credit the photo to their site, and by their rather draconian behavior, they have lost the chance for dozens of additional hits per day. In looking through their website (I won’t link to it but you can get there if you wish), they provide reasonably good travel information for free. Revenue APPEARS to derive from hotel reservations which are powered by Rezserver.com, a division of Priceline.com. Googling reveals numerous complaints about the service, although not necessarily Destination360 itself. Caveat Emptor, as usual. Again, why (and rather high-handedly) eliminate the chance for additional hits to your only visible means of revenue?
It’s way beyond the scope of this post to dissect the DMCA. But in brief, from the WiKi:
The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.
OK, OK. I get it. I suppose I would be upset if someone borrowed content from my blog without credit (WHY anyone would want to take the blame for my drivel I can’t imagine…) Still, the threat of lawsuit for something as trivial as linking WITH CREDIT to someone’s photo, even though there is really only additional revenue TO THE SOURCE that could result from this, is a little ridiculous. I suppose copying (uncredited) all the photos in one section of D360’s travelogue, and trying to sell my expertise as a travel-agent based on this portfolio could potentially yield damage to D360, but frankly, that’s a stretch.
And by the way, some of the travel information on D360’s site can be found verbatim elsewhere. Who stole from whom? Simply declaring a copyright on the page does not automatically shift my content to your ownership. For example, Google this phrase about Venice:
“The muggy summer air cooks the canals and scrapes the paint and enamel from the city’s finest pieces of art.”
I get almost 900 results. So who really owns this copy? Heck if I know, but IF D360 borrowed the text without permission, well, I certainly hope they are prepared to receive a DMCA Cease and Desist notice.
While I’m not accusing D360.com in the least, the DMCA takedown has HUGE potential for abuse. From TorrentFreak.com (perhaps not the most honorable place on the ‘net, but…):
The DMCA was once drafted to protect the interests of copyright holders, allowing them to take infringing content offline. Today, however, the system is systematically abused by rightsholders as an overbroad censorship tool. One third of the notices sent to Google are false, companies like Microsoft censor perfectly legal sites, and others use the DMCA to get back at competitors. [snip]
Aside from the mistakes outlined above, there’s also a darker side to DMCA abuse. Google previously revealed that 57% of all the DMCA notices they receive come from companies targeting competitors. [snip]
It’s safe to say that the DMCA is broadly abused. Thousands of automated notices with hundreds of links each are sent out on a daily basis, turning it into a broad censorship tool. Only the tip of the iceberg is visible to the public thanks to companies like Google who publish some of the notices online.
We can only wonder what’s happening behind the scenes at other sites, but it’s not going to be any better.
Just a few months ago the cyberlocker service Hotfile sued Warner Bros. for DMCA abuse. In the suit Hotfile accuses the movie studio of systematically abusing its anti-piracy tool by taking down hundreds of titles they don’t hold the copyrights to, including open source software.
While we’re the first to admit that copyright holders need tools to protect their work from being infringed, mistakes and abuse as outlined above shouldn’t go unpunished. The DMCA was never intended to be an overbroad and automated piracy filter in the first place.
The above also illustrates why it’s dangerous to allow rightsholders to take entire websites offline, as the SOPA and PIPA bills would allow. The MPAA and RIAA have said many times that legitimate sites would never be affected, but didn’t they say exactly the same about the DMCA?
At least Google only took down the “Doctor Hunter” page…
The Internet is truly the New Frontier, and with that comes Frontier Justice. I’ve just had my first brush with it from a legal standpoint, and I guess I came out unscathed, and probably a little wiser for the experience. At least I don’t have some larGE company chasing me.
Feel free to repost this anywhere and everywhere, credited or not.