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Google takedowns flawed, analysis shows

A third of requests may be bobbins

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Academics have analysed the requests received by Google for copyrighted material to be removed from the internet and found that almost a third of requests may be unwarranted and over half of link removal demands came from competitor companies.

Jennifer Urban of the University of Southern California and Laura Quilter Of the University of California, Berkeley produced the report in 2006 but it has attracted widespread attention following Google's reported use of some of the information in its submission to the New Zealand government regarding a controversial change to its copyright laws.

New Zealand had planned to change its copyright law in a way that critics said would result in people being disconnected by their ISPs merely because of claims of copyright infringement.

It has been reported that Google used the research as evidence that claims of copyright infringement are not a reliable indicator of actual infringement. Google's submission is no longer online at New Zealand's telecoms forum website now that the government has decided not to proceed with the planned law change.

US copyright law contains a provision, called Section 512, which allows internet hosts to avoid liability for copyright infringement when material is posted by a third party. The publishers or service providers must remove the material as soon as they are notified of the infringement to qualify for the exemption.

It is the notifications that Urban and Quilter analysed. They collected the data from the Chilling Effects project, a collaboration between digital rights group the Electronic Frontier Foundation (EFF) and the law departments of various US universities.

The project analysed 876 notices received between 2002 and 2005. This includes every notice Google received in this period, which represents 84% of the total.

"We found that a substantial portion of notices contain at least one of the major categories of flaws we evaluated," said the study. "Each of these categories either pose significant questions with the claim’s enforceability in a court of law or invite serious concerns about the fairness of the process for targets."

"They are: substantive legal questions related to the underlying copyright claim; significant technical noncompliance that renders the notice unusable according to the statute; and notices sent in 512(a) situations," it said.

Part (a) of Section 512 only relates to service providers who are 'mere conduits' for the information such as internet service providers. It imposes no takedown obligation on the service provider.

The study found that 30% of the takedown notices "presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like)". One in 11 complaints contained significant flaws that rendered them unusable, the research found.

The research did find, though, that the notice and takedown process was rarely used by the industries that had lobbied for it, the music and film industries.

"Perhaps surprisingly, neither 512(c) search nor 512(d) hosting notices show significant use by the movie and music industries. While these industries anticipated and helped draft the notice and takedown provisions in 512(c) and (d), our data show them only rarely using these provisions. Corporate and business entities are generally responsible for the lion’s share of notices," it said.

"It seems likely that complaints about infringing movies and songs now focus on peer-to-peer networks, where the OSP [online service provider] acts only as a conduit," it said. "This change (unanticipated when the statute was drafted and passed) might explain the lack of the content industry’s use of 512(c) and (d) notices. If true, this suggests that the industry’s concerns about piracy are currently not well-addressed by the notice-and-takedown process."

The research found other potential misuses of the law. It found that 57% of notices to Google demanding that it remove links from its search engine database were sent by competitors to the company linked to. It also found that 37% of notices to Google related to sites outside of the US, where different laws would apply.

The researchers concluded that the notice and takedown process was not working.

"Copyright infringement on the Internet is a serious issue – distribution of valuable works can occur in a flash, and value may be difficult to recapture – and the idea of a simple, inexpensive process to handle takedowns is a beguiling one. But at what cost comes this benefit? Our data reveal an unfortunately high incidence of questionable uses of the process," the research said.

"The surprising number of questionable takedowns we observed, taken in conjunction with the ex ante removal of content, the minimal remedies for abuse of the process, and the lack of knowledge about the counternotice procedures, suggest that few are well-served by the current Section 512 process, and some or many individuals, as well as public discourse and the Internet’s value as an expressive platform, may be harmed," it said.

"Our data set is, as noted, limited, so further research to prove or disprove these concerns, and to suggest the best reforms or remedies, is necessary," it conceded.

See: The research (16-page / 166KB PDF)

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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