Under current legislation, US-based Internet service providers are not expected to proactively police infringing user content. They are, however, expected to remove it, if a copyright holder complains.
The so-called ‘safe harbor’ that providers enjoy as a result of such cooperation is currently under the microscope, following rightsholder complaints that the Digital Millenium Copyright Act is failing them.
To address these concerns, the U.S. Copyright Office has been running an extended public consultation. As noted earlier, the RIAA and other music groups just submitted their comments and Google have now added theirs.
In contrast to the music groups who believe that the DMCA is “failing”, Google believes otherwise. Noting that rogue sites have been driven out of the United States by an effective DMCA, the search giant suggests leaving the law intact while encouraging voluntary mechanisms between content owners and providers.
“In short, the DMCA has proven successful at fostering ongoing collaboration between rightsholders and online service providers, a collaboration that continues to pay dividends both in the U.S. and in international contexts,” Google writes.
The company highlights its YouTube-based Content ID as one such collaboration, with the system helping creators take down or monetize infringing content, as they see fit. Google also cites the benefits afforded by the takedown tools it provides to rightsholders in respect of Google search.
“First, in recent years, Google has streamlined its submission process, enabling rightsholders to send more notices more easily (while still continuing to reduce the average time to resolution to under six hours),” the company notes.
“Second, Google has provided new incentives to make heavy use of the DMCA takedown system. We now use the number of valid DMCA requests a domain has received as one of the inputs in making ranking determinations in search results, so rightsholders seeking to take advantage of this signal have further incentive to file notices.”
But while Google supports the current takedown provisions, there are problems. The company says that a significant portion of the recent increases in DMCA submission volumes stem from notices that are either duplicate, unnecessary, or bogus.
“A substantial number of takedown requests submitted to Google are for URLs
that have never been in our search index, and therefore could never have appeared in our search results,” Google states.
“For example, in January 2017, the most prolific submitter submitted notices that Google honored for 16,457,433 URLs. But on further inspection, 16,450,129 (99.97%) of those URLs were not in our search index in the first place.”
This kind of rampant abuse was highlighted in our recent report which revealed that one small site had millions of bogus notices filed against it. But, according to Google, that’s just the tip of the iceberg.
“In total, 99.95% of all URLs processed from our Trusted Copyright Removal Program in January 2017 were not in our index,” the company reveals.
But despite the abuse, Google is apparently giving these ‘trusted’ submitters some wiggle room to be creative. In a rather unexpected move, the search giant says that it now accepts takedown notices for URLs that don’t exist, to ensure that they never appear in future search results.
While copyright holders will presumably enjoy that feature, it is a fairly curious move. A proactive takedown of a non-existent URL necessarily happens in advance of any determination of whether that URL is infringing, which goes way beyond any legislation currently being demanded.
That being said, some of these non-existent (and essentially fabricated) URLs do eventually turn up in Google search, albeit at a tiny rate.
“Of the 35,000,000 URLs we processed in the latter half of September 2016 that were not in our index, fewer than 2% of those would have made it into our index in the intervening four months; notices for the other 98% therefore were at best unnecessary,” Google says.
“Many of these submissions appear to be generated by merely scrambling the words in a search query and appending that to a URL, so that each query makes a different URL that nonetheless leads to the same page of results,” it adds, referencing an earlier TF report.
Overall, however, Google seems comfortable with the current notice-and-takedown framework, noting that a “robust ecosystem” of companies with expertise in sending takedown requests is being bolstered by voluntary service provider measures that already go beyond the requirements of Section 512 of the DMCA.
“While stakeholders can be expected to disagree about the details of these voluntary efforts, it cannot be said that the DMCA safe harbors are failing in the face of this overwhelming evidence that these voluntary measures continue to grow both in number and diversity,” Google concludes.
It’s crystal clear from Google’s submission that it sees the DMCA as a law it can work with, since it enables service providers to innovate without fear while simultaneously addressing the concerns of copyright holders. The latter see things quite differently though, so expect the battles to continue.
Google’s submission can be found here, via Michael Geist.
