How can a lawyer explain Google Bowling? Nicolas Wells is not your ordinary lawyer, that’s how. He has been practicing intellectual property law for eight years, founding a boutique law firm in 2009 that handles technology and intellectual property issues, with offices in New York and Salt Lake City. Before that, Nicolas got his MBA and worked in the software industry doing technical marketing, mostly in the open source/Linux space. Nicolas has also authored several textbooks on system administration and network security. So, we have a technologist/marketer turned IP attorney that I was pleased be able to interview on the newest form of negative SEO or Google Bowling–illegal using copyright law against your competitors.
Me: Can you describe the purpose of the Digital Millennium Copyright Act? I bet most of our readers don’t know much about it.
NW: The DMCA was pretty controversial when it was passed in 1998. It was needed in order to comply with a couple of treaties that the U.S. had signed, but in general, its purpose was to update the Copyright Act (which was completely revised in 1976) to take account of the impact of new technologies.
There were two biggest concerns that the DMCA tried to address. First, the balance between the public interest in using copyrighted material and the use of technological measures for preventing copying (think of digital rights management–DRM). The DMCA prohibited interfering with DRM even when use of the underlying material might not otherwise violate copyright. That is still a controversial part of the law and many people think the DMCA goes too far.
The second concern that DMCA tried to address was that companies facilitating Internet communications (telecoms, ISPs, web hosting companies) would face legal liability because they hosted or transmitted copyright infringing materials. They were considered a big target for litigation because they had the money to pay damages, but they said, Hey, we can’t be responsible for what our customers store on our servers or transmit across our networks. Congress agreed with that assessment and formalized it in the DMCA.
Me: What is a takedown notice? Who requests a takedown and what must happen upon that request?
NW: A takedown notice is a formal letter that the owner of copyrighted material can send to any search engine, ISP, or web hosting provider that is facilitating the online display of infringing materials. A takedown notice must include certain things under the DMCA, such as a statement of what copyrighted work is being infringed and the URL where the infringement is located. When a search engine or web hosting provider receives a takedown notice, they must either remove access to the URL referenced in the takedown notice or else they may be jointly liable (with the customer who actually runs the website) if the copyright owner sues for infringement.
Me: How do search engines respond to takedown notices?
NW: They’re in a tough position. If they remove the material referenced in a takedown notice, they risk having angry customers. If they don’t remove the material, they risk legal liability. And yet they can’t do a full legal evaluation of every copyright infringement claim. They don’t have the time to do that. So in most cases, they just remove access to the material (they “take down” the web page in question). I’ve read that in early 2009, Google stated that about a third of the takedown notices they received didn’t reflect valid copyright claims, in their opinion. I don’t know how much legal research they did to get that number. More recently, however, Google has said that they remove search results for 97% of the takedown notices they receive. So they are exercising some judgment for at least the other 3%, but remember, they are now receiving tens of thousands of these takedown notices every day, so it’s got to be a real challenge
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