The online publishing community is experiencing a crisis driven by malicious entities that are filing fake DMCA notices in order to remove competitors from the search results. Many are asking Google to do something about it because publishers are trapped by a copyright protection law that has become weaponized against them.
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. For legal counsel regarding a specific DMCA dispute, please contact a licensed attorney.
Digital Millennium Copyright Act (DMCA)
The DMCA is a law that went into effect in 1998. The purpose was to modernize United States copyright law by giving digital creators a way to enforce their existing copyright protections. Another part of the law gave Internet platforms what is known as Safe Harbor, a legal framework that enables them to host content without being dragged into copyright infringement lawsuits.
The goals of the DMCA had a good intent:
- Give digital creators a way to protect their work from plagiarizers and other infringement.
- Provide Internet platforms a way to prosper without the threat of copyright lawsuits hanging over them. All they had to do was to provide a way for digital creators to report copyright infringement.
The system worked well until malicious actors discovered how to abuse the system.
Why Google Is Obligated To Remove Content
A platform’s obligation to remove content is outlined in the DMCA law, 17 U.S.C. § 512(c)(1)(C) which details that platforms are not liable for infringement claims if they comply with a multi-part set of statutory conditions. Along with meeting various requirements, they must satisfy subsection (C), which specifies that the provider:
“…upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”
Why Google Can’t Reject Fake DMCA Claims
Many people are asking that Google itself should judge whether a copyright claim is false in order to bring a halt to the malicious DMCA claims. But Google cannot do that because that is asking Google to make a legal determination. In the context of a DMCA takedown, only a federal judge has the authority to judge whether a copyright claim is false or has merit.
So it’s not just that the law happens to omit this requirement. The reality is that a private platform generally cannot make that call. Evaluating the validity of a copyright claim is a judicial act that only a judge has the power to decide.
What The DMCA Says About Misrepresentations
The DMCA has a section that lists two kinds of misrepresentations. One where a person files a false DMCA complaint and another where a person falsely claims that their content was wrongly removed. The law makes the entity that makes misrepresentations liable for damages. So this gives a platform like Google the ability to file a federal lawsuit against anyone who files a false DMCA, as well as for other misrepresentations.
Section 512(f) of the Digital Millennium Copyright Act (DMCA) says the following:
“(f)Misrepresentations.—Any person who knowingly materially misrepresents under this section—
(1)that material or activity is infringing, or
(2)that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
That provision of the DMCA does not give a platform like Google the ability to reject false DMCA complaints. It only gives them the right to file a federal lawsuit and have the judge hear both sides of the argument.
And that’s something that happened in 2023 where Google sued two men who used sixty five Google accounts to file DMCAs on “hundreds of thousands” of URLs.
The court subsequently ruled in Google’s favor after the defendants failed to appear or defend themselves in court (h/t to Glenn Gabe for calling my attention to this lawsuit).
Can Google Reject A DMCA Complaint?
The DMCA does have a provision under section 512(c)(3) under which a platform like Google can reject a DMCA complaint, but only in the context of whether the complaint is complete. A DMCA complaint must have the following six elements:
- A signature
An actual physical signature or an electronic signature. - Identification of the original work
- Identification of the infringing material
- Contact info
Address, telephone number, and an email address. - The good faith statement
A statement that the complainant has a good faith belief that the allegedly infringing material is not used with their authorization. - A perjury statement
A statement that the information is accurate and submitted under penalty of perjury.
So, in the case that a complainant files a false DMCA complaint and it is complete in all six elements, but all six elements are false, section 512(c)(3) does not give the platform the ability to reject the claim. Section 512(c)(3) only outlines what information must be included for a notice to be considered legally valid. It does not give a platform like Google the authority to investigate whether that information is true. Rejecting it creates legal risk.
If Google receives a DMCA complaint that meets all legal requirements and decides to reject it because it suspects the filer is lying, rejecting it creates legal risk under the notice-and-takedown system outlined in the DMCA. By refusing to accept a legally valid notice, Google could lose its Safe Harbor immunity for that specific claim. If the copyright infringement claim later turns out to be legitimate, Google can then be held liable.
In the context of the procedures laid out in the DMCA, platforms like Google cannot decide who owns a copyright. That determination belongs in federal court. The DMCA effectively forces platforms like Google to treat all properly completed notices as valid, execute the takedown, and process any counter-notices. After that, the actual determination of whether the DMCA complaint is valid and who owns the copyright is handled in federal court.
Why It Takes Weeks To Restore Falsely Reported Content
Many people complain that it takes Google a long time before they restore content. There is a reason why it takes so long.
The DMCA requires platforms to provide a way for copyright infringement to be reported so that infringing content can be removed. But it also requires platforms like Google to accept a counter notice from the alleged infringer.
Once that counter notice is received by the platform a clock starts ticking. That is the start of a waiting period of up to 14 business days which is meant to provide time for the DMCA complainant to file a federal lawsuit so that a federal judge can decide if the copyright complaint has merit.
If no federal lawsuit is filed then the content that had been removed is restored. This is why it takes so long for Google to restore content that was taken down because of a false DMCA claim.
Why The DMCA Problem Will Only Get Worse
Something that has only now become evident is that the DMCA never makes Google (or whoever) responsible for identifying whether a DMCA notice is valid or not. Their job is just to accept the notice and remove infringing content. And if they receive a counter notice that contests the claim, they are required to restore the content within 10 to 14 business days.
There is no requirement for Google to investigate and decide whether the copyright claim is valid or whether the person filing the claim is real.
In the context of a DMCA takedown, the job of judging the legality of a DMCA claim of copyright infringement belongs to a federal judge. That’s because once a counter notice is submitted, the platform must wait 10 to 14 business days to give the DMCA claimant time to file a federal lawsuit. To stop the content from being reinstated, the entity that filed the original DMCA claim must file a federal lawsuit within that window of time.
Publishers who are victims of false DMCA claims frequently complain about how long it takes for Google to restore their content after contesting the false DMCA claims. But Google’s waiting that long because it’s a legal requirement.
There is also a provision that enables a party that is falsely accused of infringement to file a federal lawsuit against the malicious DMCA claimant.
The DMCA law states:
“Any person who knowingly materially misrepresents under this section— (1)that material or activity is infringing… shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
But that may not help the innocent party that is falsely accused of infringement when the fraudsters are using fake email and physical addresses. This problem will only get worse as more malicious actors learn that they can file false DMCA claims and get away with it.
Publishers Have A Serious Problem With False DMCAs
An unintended consequence of the DMCA is that people with malicious intent have learned to take advantage of it to damage competitors or minimize reputational harm caused by unflattering online articles.
Ex-Googler Pedro Dias (LinkedIn profile) has been posting about this problem for months. He most recently called attention to an article about a false DMCA claim filed against a news organization. His comment:
“Google has a serious problem and no one is working to fix it… Or willing to.”
But is this Google’s problem? If they are following the law, is it reasonable to expect them to change a legal process that currently keeps them in compliance? Many may feel that Google is leaving publishers on their own to navigate a broken system that has been turned against them.
Featured Image by Shutterstock/Elnur
