What are the consequences for marketers when search engines are involved -- as third parties -- in copyright litigation?
Google found itself accused of censorship last month, after it removed some pages from an anti-Scientology Web site in response to a legal request made by the Church of Scientology.
Google was reacting to a complaint made under provisions of the U.S. Digital Millennium Copyright Act (DMCA), which requires search engines to remove links to pages if a copyright holder claims the pages infringe upon his rights.
The Church of Scientology sent Google a list of at least 126 Web pages it claimed infringed its copyright. Google promptly removed these pages. An outcry ensued when it was discovered one of them had been ranked fourth in a search for "scientology."
That page -- home page of the anti-Scientology Xenu.net Web site -- had apparently recently gained its high ranking in part due to efforts by some Webloggers to "Google Bomb" the site for the term "scientology." This means they actively worked to build links to the site's home page, using the word "scientology" in or around the links, to make the site appear popular for that term.
When the home page disappeared from the rankings, the remaining top results were for pro-Scientology Web sites. Some allegations were also made that all these sites were controlled by the Church of Scientology and boosted through the church's own link-building tactics.
A day after the news spread, Google restored the home page of Xenu.net, saying it had been "inadvertently removed." The page regained its old ranking and still currently appears in the top results in a search for "scientology."
Ample news coverage of these events exists. I'm going to concentrate on clarifying some misconceptions about what happened, as well as provide some advice and observations on what other actions under the DMCA could mean for search engines and Web searching.
It should be made very clear that the Xenu.net site itself was not removed from Google. Google removed only 42 of its pages, which were named in the complaint. A check I conducted showed despite this removal, over 1,000 pages were still listed. The other pages on the list appear to be mirror pages of the 42 pages removed from the Xenu.net domain.
It was utterly surprising to see the Xenu.net home page removed. Upon review, the page didn't appear to have anything on it that could be construed as infringing on someone's copyright. It's mainly a table of contents to other pages within the site.
The case no doubt raises fears the DMCA will be abused to unfairly shut down access to Web sites via Google and other search engines. Before general panic ensues, it should be noted that this isn't the first DMCA action Google has taken. Indeed, the search engine said it generally gets one or two DMCA complaints per week. I haven't surveyed other search engines about requests they receive, but I suspect they'd be about the same.
We've heard no complaints about those other pages being removed, most likely because they are indeed situations in which copyright is being infringed. Google described previous requests it has received as "open and shut."
I'm certain if someone felt the DMCA was being used as a means to silence them via search engines before now, there would have been an outcry, as in the Scientology case. Nevertheless, the potential for the DMCA to be abused is real. Because of this, one would hope that the law could be changed.
At present, anyone who swears in a statement to a search engine a page is infringing on her copyright can get that page pulled out of the search engine's index. Pretty scary stuff!
Of course, if your page does get pulled, you have the right to do a "counter notification," that is, you forward a statement stating you are not violating anyone's copyright. This accomplished, your pages will be restored to the index.
There's one catch. In your statement, you also agree to the jurisdiction of a U.S. federal court, should the original person decide to pursue a legal copyright claim.
Again -- pretty scary stuff. Or is it? For people in the U.S., perhaps not. Even without the DMCA, someone could pursue a copyright infringement action against you. By sending in a counter notification, you aren't necessarily exposing yourself to anything new. It appears you at least help ensure that if someone is going to sue you for copyright infringement, it will happen in a court near you rather than on the other person's turf.
That's assuming an action actually takes place, of course. Making a DMCA complaint is easy and needn't involve a lawyer. Actually proving copyright infringement requires a legal battle. A counter notification may get you back in the listings, and further legal action might never happen due to the costs and difficulty involved.
The Xenu.net site is a special situation. Because it's located outside the U.S., its Webmaster would have to agree to the jurisdiction of a U.S. court, specifically the jurisdiction of a court near Google (or whatever other search engine might be involved). The Xenu.net Webmaster isn't willing to agree to those terms.
One solution would be to drop the portion of the DMCA requiring agreement to the jurisdiction of a U.S. federal court. Then, the DMCA would provide some degree of help to those with legitimate complaints, especially for open-and-shut cases in which a counter notification is unlikely. However, by dropping the jurisdiction requirement, anyone who had pages removed might feel more comfortable about filing a counter notification.
Robin Gross, intellectual property attorney with the Electronic Frontier Foundation, goes a step further and thinks it makes sense to drop the DMCA's entire provision for page removal.
The provision was supposed to be a safe harbor for search engines, protecting them from lawsuits if they linked to material that infringed someone else's copyright. Gross says without that provision, search engines would still be protected. But it would keep them from getting between two disputing parties.
"Google [and other search engines] would not automatically be held liable for linking to something. There would have to be additional elements shown about their knowledge and intention," Gross said. "Make the parties who actually have the disagreement litigate it, and let's not put the burden on the [search engines].'
Google is reexamining how to handle DMCA complaints, including ways to better notify parties whose content is removed. Gross said notification must be done, but Google said it is not required. The search engine is investigating that and other disclosures.
"If you're a search engine, you're not required by the DMCA to do anything other than remove the links. But we at Google believe it is important to make the process more transparent and are looking into ways of informing both the Webmaster and the public about the DMCA notices we receive," said spokesperson David Krane.
To its credit, Google now has extensive information on its Web site about filing DMCA complaints and counter-notifying if you're the target of one. I've not surveyed other search engines for this information, but I routinely scan help files and have never seen it anywhere else.
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