DMCA Complaint to Google

[kitz]

Hi I wonder if someone can help with some advice please.

Background.

I own a UK not for profit website which mainly deals with broadband information and helping people with DSL related problems and modem router issues (ie advanced statistics and line monitoring*). Being a help type site we also have discussion forums which talk about such things as Apple/Android hardware and of course a section with discusses all the various Operating Systems. The site is family friendly and has a good reputation.

Problem

It came as a total shock to me to find out last night that we had been served with a DMCA notification which had gone straight to google in 2012 on behalf of Microsoft. I am listed amongst ~8000 what are obvious crack, hack or torrent sites.



The 'offending post' was actually a news article from another website which stated that "Windows 8 Professional ZX Edition Leaked". It gave a link to the other website (h33t) which showed screen captures of what it looked like and also a link to a preview on YouTube (which is still viewable).

The post itself didn't infringe any copyright, just basically links so that other people could preview what Window 8 supposedly looked like. It did not link to a download, we have never hosted any copyrighted material, and even talking about hacked or cracked copyrighted software is frowned upon.

I was never served with any notice of copyright infringement, and even though I have a google webmaster tools account, I never got any notification via there either.

The company that served to Google appears to be some sort of company that goes around filing on behalf of the likes of Microsoft, Adobe, MGM etc.

I suspect we may have got mixed up in this by an organisation using some sort of search and file technique.

So, the site now has a black mark with google that I have no idea how to clear, we dont have funds for legal representation, and the research Ive undertaken implies that filing a counterclaim could be risky, time consuming and expensive.

Do I just take this on the chin or is there something that I can do to clear what I feel is an unjust DMCA notification. Does the fact it was filed in 2012 make any difference.

Thanks in anticipation of thoughts/advice.





*I specifically mention this because we do talk about hacking routers - ie in the sense of modifying GPL code (it is perfectly legal to make custom firmware), or how to get to say the Broadcom CLI and busybox shell - again using perfectly legitimate by using little known or hidden commands. Im wondering if perhaps a bot has incorrectly put 2 and 2 together to make 5.

[AndyJ]

Hi kitz,
Sorry to hear about your problem. If you haven't already seen it, you may be interested in a recent posting on Techdirt by Mike Masnick on this subject. It highlights the problem of bot-driven automated takedown notices which is what I suspect your site has been victim to. Seeing this from Google's point of view, they don't want to pick a fight with Microsoft or any other big corporate over something which they will see as trivial (even if it's not trivial to you). Google gets literally millions of takedown notices every month and so they don't have the time or the inclination to sort the wheat from the chaff.

You don't mention exactly which Google service the take-down was issued to, and what effect it has had on your own site. Is your site hosted on a Google platform, such as Blogger? If the problem is that Google Web Search has de-listed your site, then clearly this is a major problem and you need to get it resolved.

The counter-notice system is not nearly as scary as you might think, and since you are outside the US jurisdiction you have little to fear from the threat of statutory damages as these would only apply if you were to answer to a suit in the US Courts. The main problem is that, in fact, your issue is with Microsoft, whereas it is Google you wish to get to change their decision. So you need to file a counter-notice, which should be dealt with at Google by a human being and thus your explanation should resolve the issue. It shouldn't involve any cost at all. and if you are sure of your facts then there is no risk, because this sounds exactly like the kind of false claim that Mike Masnick speaks about in his article.

[kitz]

Hi Andy, Thank you for your prompt and helpful reply.

The site is its own managed server with a UK hosting Co, so Im sure I will have known about if they issued any take down notice to them. The main site is quite busy & used as a reference by many UK ISPs. Theres a lot of blood sweat and tears gone into it and I dont want it tarnished on google websearch for something we haven't done.


I tried to post the link to the type of notice in my first post, but it wouldnt let me because Im a n00b. However you may be able to get it from this:-

lumendatabase org/notices/367999#

DMCA (Copyright) Complaint to Google
Re: Websearch Infringement Notification via Online Form Complaint

sender leakid
on behalf of microsoft
Copyright claim #72
Kind of Work: Unspecified
Description WINDOWS 8 (5) microsoft windows 8

My site kinda stands out amongst the other 8-9000 as its one of the few that isnt a torrent or download site.

[kitz]

PS

Ive temporary taken down the 'offending post' and moved it to a holding section. Would google want to see it so that they can judge.

I wasn't sure if I should keep it up or not.

[kitz]

Sorry for replying to myself again.

Removing the post from view appears to be the correct way to proceed and it looks like I have to attach a copy of it.


My next query is that I started to fill in the form to which you linked, but that sends the counter notice to my website hosts. They haven't been involved. Its google web services that I think I need to contact?

Ive found this
support google {cant post it} lr_counternotice

However, the thing I dislike about this is I must include full information about me including address and phone no.

But unlike lumendatabase, there doesn't appear to be any option to keep this information private from the public. These are the options from lumendatabase

• Do so anonymously
• Include your contact information (name, address, phone number, email) but have it kept confidential by Lumen, or
• Include your contact information in the publicly available database.

Google offers no such option and insertion of information is compulsory and forwarded to god knows where and available to god knows who.
The company who filed on behalf of Microsoft have done so anonymously and there are no details other than 'leakid'.

Any idea what google do with this info as I dont want it splashed all over the internet

[AndyJ]

Hi again kitz,

It's probably worth explaining what is going on here, legally speaking. The DMCA, amongst other things, includes provisions to protect "Online Service Providers" (OSPs) from liability for copyright infringement carried out by users of their services, provided they (the OSPs) have no actual knowledge of the alleged infringing material passing over their systems.

An OSP can be a communications provider such as BT, a site hosting company such as GoDaddy or Blogger, and any number of providers such as YouTube or forums like this one or your own, where users can upload material without it being pre-moderated. The reason behind this provision is obvious.

But the system of exemption from liability only operates while the OSP has no knowledge of the alleged infringing material. Once it has been properly informed about something it has to act expeditiously to remove that material or it becomes liable along with the actual alleged infringer, for any acts of infringement. This is why Google were not obliged to tell you before they removed the search results relating to your site from their listings. If the end user (the alleged infringer) accepts the situation without challenge, then in theory that is the end of the matter, and the owner of the copyright is satisfied because access to the illegal copy has been removed and it is not necessary to take the matter to court.

The so-called 'put-back' notice allows the end user to challenge malicious or erroneous take-downs. Again the procedure is laid down in law (section 512g of the US Copyright Act 1976 as amended) and is explained more simply in this Wikipedia article. Once a put-back notice has been filed, the OSP must pass the details contained in it to the person who issued the take-down notice, and wait for the response. The decision about whether to accept the explanation given in the put-back notice is one for the person who issued the take-down notice, not the OSP*. If no response is received by the OSP after 14 working days, then it can assume that the put-back notice has been accepted and can restore the material which was the subject of the complaint, or as in your case, restore the search results. At all times the OSP is the middleman, and as long as they act expeditiously, they can avoid any further legal liability. As you can imagine it would be much more profitable to sue Google rather than some torrent site hosted in Russia or some other jurisdiction where suing the actual host or infringer might be too expensive or difficult. Google are therefore keen to retain the DMCA take-down system as the least worst option, despite the fact that it is disproportionately expensive for them. Equally, they don't exactly encourage the use of put-back notices, because that only increases their workload.

I suspect that the sponsors of the Online Copyright Liability Limitation Act (OCILLA), which introduced the provision into the Copyright Act, had no idea that the system would be used so extensively, or that bots would not only be used to track down material thought to infringe copyright, but also to file the take-down notices without any human intervention. However that is what has happened, and as the Techdirt article reports, the system is being widely abused.

Incidentally, in 2000 the EU introduced a very similar system via the eCommerce Direction (Article 14) although the DMCA seems to have become the industry standard even for OSPs who operate outside the USA.

So that's a very long explanation of why Google needs your details. In theory they should only pass them on to Microsoft or their agent as the originator of the take-down notice, although I can't tell you if they use your details for any other purpose. Knowing Google's appetite for data of all kinds, I wouldn't be surprised if they retained it for other reasons, although clearly under the UK Data Protection law they should not do so, once its retention is no longer relevant. You would need to ask Google if you still have concerns. And after the take-down / put-back matter has been resolved, you could make a Subject Access Request to Google to find out what details about you they had in fact retained, and if you thought it was a disproportionate retention, you could ask for it to be deleted. Depending on where the information is actually stored, Google may or may not fully co-operate, as data stored and processed in the USA is not subject to the UK Data Protection Act.

Finally, if you haven't already found this, here is the website for LeakId; however it doesn't provide any contact details. As you may imagine, LeakId has been named and shamed by TechDirt in the past. You may wish to consider contacting Mike Masnick with the details of your case, in the hope that he can use it to publicise and thus raise the profile of your specific issue.

* This is a different situation to the so-called 'right to be forgotten' procedure where Google does act as the arbitrator for requests to remove certain links.

[kitz]

Thank you so very much for your informative post. :thumbs:

Unfortunately I have not had chance to do anything about this today and I am too tired to start anything at this late hour, but I wanted to at least acknowledge your reply.

I will get back to you when I have had chance to digest all the information that you posted.