Monday, December 28, 2009 - The Progress & Freedom Foundation Blog

U.S. Legislators CANNOT Trust Claims that 37% of the DMCA Takedown Notices That Google Receives Fail to State "Valid Copyright Claims."

The Internet can contribute significantly to the quality and quantity of debate about important questions of public policy. But--particularly when copyrights are at issue--it can also amplify and perpetuate the worst nonsense spouted by the least competent employees or agents of even generally well-intended entities.

An example of this problem arose from concerns recently expressed by Representative Robert Goodlatte, who has strongly supported both artists and technologists. Representative Goodlatte is one of the many legislators within the "reasoned center" of debate about copyrights and the Internet: He and many others seem to want real solutions that preserve both the generative power of the Internet and the generative power of copyright protection--without forcing copyright owners to sue consumers knowingly or deliberately used as "human shields" to protect the piracy-driven "business models" of miscreants like the distributors of the Morpheus file-sharing program.

Consequently, during a recent hearing on Internet piracy of sports programming, I was surprised to hear that Representative Goodlatte had asked, an online service provider ("OSP"), whether it should continue to honor takedown notices from copyright owners given that Google had told the government of New Zealand that a third-party study had "reported" that 37% of the DMCA "takedown notices" that Google receives state invalid copyright claims.

The problem here was not that Representative Goodlatte believed Google's claim that a third-party study had reported that 37% of the DMCA notices that Google receives are invalid--after all, Google itself had made that claim when addressing the government of New Zealand. Rather, the problem was that Google's claim was dead wrong--and then the Internet echo-chamber enabled a string of serious errors by non-A-team employees and agents to mislead not only the New Zealand government, but also journalists and a thoughtful U.S. legislator on the other side of the world.

Here is the relevant claim from Google's comments to New Zealand, which were filed by a Google employee in Belgium, another in Australia, and a New Zealand lawyer:

A recent study undertaken in the United States reported on findings from takedown notices issued to Google under the Digital Millennium Copyright Act 1998 (US), concluding that... over one third (37%) of notices were not valid copyright claims. See J Urban & L Quilter, Efficient Process or "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act (summary).
This claim is nonsense: That 37% figure derived from an egregious misreading of an absurdly aggressive "summary" of a "study" that was, itself, so biased that it could find even a takedown notice directed at inarguably infringing conduct to be "substantively flawed." See Jennifer M. Urban and Laura Quilter, Efficient Process or "Chilling Effects? Takedown Notices under the Digital Millennium Copyright Act, 22 Santa Clara Computer & High Tech L.J. 621 (May 2006) [hereinafter, the "Chilling Effects" study].

This will be the first of two posts on the claim that the Chilling Effects study "reports" that 37% of the DMCA notices received by Google "were not valid copyright claims." This post will explain why neither the Chilling Effects study nor its summary actually "reports" any such finding. My next post will explain why the Chilling Effects study--even were its findings correctly summarized and reported--would still be inane "junk science" that can only mislead.

No "study" or "summary" has "reported" that 37% of the DMCA notices received by Google fail to state "valid copyright claims."
Google's New Zealand comments are just wrong: They claim that the Chilling Effects study "undertaken in the United States reported... that over one third (37%) of [DMCA takedown] notices [sent to Google] were not valid copyright claims." But the Chilling Effects study never "reported" that 37% of DMCA takedown notices sent to Google "were not valid copyright claims." Indeed, the statistic "37%" appears nowhere within the published Chilling Effects study.

So where did the 37% statistic come from? The Google comments cite the 37% figure not to the Chilling Effects study itself, but to a summary of the study. In itself, that is a problem: Summaries of studies are often unreliable. This one, for example, contradicts the study itself on the issue central to Google's comments. Compare J Urban & L Quilter, Efficient Process or "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act, (this summary reports that 37% of notices received by Google targeted foreign websites or postings) with Chilling Effects at 676 (the study reports that 34% of notices received by Google targeted foreign websites or postings). Nor was this problem of flagrant conflict isolated.

Moreover, not only does the Urban/Quilter summary repeatedly contradict the actual study, it also repeatedly spouts blatant nonsense. Here is an example:

[W]hile there was some conflicting caselaw on Section 512(c) (hosted material situations), merely providing hypertext links through a search engine seems unlikely under current law to result in secondary liability for search OSPs in the first place, regardless of the 512(d) putative "safe harbor."
No competent U.S. lawyer or scholar could have made that claim. For example, A&M Records, Inc. v. Napster Inc., held the "search OSP," Napster, Inc., secondarily liable because it owned the computers that housed a database of file hashes and IP addresses. In re Aimster held that the same result followed even if the "search OSP" housing such a database encrypted it. In MGM Studios, Inc. v. Grokster, Ltd., the U.S. Supreme Court held that the same result could follow even if a "search OSP" had duped unsuspecting families and children into doing the "dirty work" of owning the computers that housed the search indices used by its file-sharing network. And in "Operation Digital Gridlock," (see here, p.3), persons acting as "search OSPs" were convicted of felony copyright infringement.

Consequently, competent scholars could not blithely assert--in a summary--that different results would necessarily follow were the databases of file hashes and IP addresses discussed in cases like Napster, Aimster, and Grokster replaced by databases of "hypertext links" to URLs created through actual copying of infringed works. And if U.S. academes did believe something so absurd, then Australia's Cooper decision should have alerted Australian Google employees to their errors.

In short, the Urban/Quilter "summary" of the Chilling Effects study distorts law and the study itself so badly that even foreign lawyers only dimly aware of the basics of U.S. law probably should have realized that this summary was unreliable. Worse yet, not even the authors of this summary dared to "report" that 37% of DMCA takedown notices sent to Google "were not valid copyright claims."

To the contrary: the see-no-Napster, hear-no-Aimster, speak-no-Grokster authors of this "summary" merely noted that they had found two "interesting patterns that do not, by themselves, indicate concern...." One of these "patterns" was that 37% "of the [DMCA takedown] notices sent to Google targeted sites apparently outside of the United States."

Consequently, Professors Urban and Quilter themselves had no "concern" that 37% "of the [DMCA takedown] notices sent to Google" were invalid merely because they "targeted sites apparently outside of the United States." Google was wrong to tell New Zealand that a "recent study undertaken in the United States reported... that over one third (37%) of [DMCA takedown] notices [sent to Google] were not valid copyright claims." That was never true: Neither the Chilling Effects study nor its summary had "reported" such a claim.

Indeed, to make that 37%-apparently-foreign statistic quantify the percent of "invalid" DMCA notices received by Google, two foreign Google employees and a foreign lawyer would have had to have silently adopted an interpretation of U.S. law so unsupportable--and dangerous to OSPs--that the authors of the Chilling Effects study and summary had wisely avoided it. In effect, the authors of the Google comments appear to have presumed that if an infringing user of a U.S.-based hosting or information-location service resided outside the United States, then--even if the user had infringed the copyright laws of his or her own country and caused a U.S. service provider to engage in potentially infringing copying and distribution in the United States--no takedown remedy is legally available even to U.S. copyright owners harmed by such acts.

I am aware of no legal support for such a conclusion. No U.S. court has held that the takedown remedies of the DMCA are unavailable to copyright owners when U.S. online service providers host or copy-and-index infringing content or websites that originated outside the U.S. Indeed, one U.S. court just rejected such sophistry.

Nor would wise U.S. OSPs advocate such interpretations of U.S. law. Congress clearly intended the DMCA's hosting and information-location "safe harbors" to be available only when operators of hosting or search services implement takedown procedures. Consequently, if takedown notices aimed at foreign users or websites cannot state "valid copyright claims," then the DMCA's safe-harbor provisions must be inapplicable to transnational posting or indexing by U.S. OSPs. That result seems disadvantageous to U.S. OSPs generally, and to Google in particular.

Even a correct report of the findings of the junk-science Chilling Effects study would be useless to thoughtful legislators and governments.
In conclusion, the Google comments to New Zealand were not only dead wrong, they were also hyper-technical at best, and self-destructive at worst. Nevertheless, the usual cheerleaders-for-piracy will surely claim that these were mere technical errors because the Chilling Effects study itself would support claims that 31% of DMCA notices are "substantively flawed." See Chilling Effects at 667.

Don't bother, piracy cheerleaders. Even had Google correctly reported its results, the entire Chilling Effects study would still be useless junk science. This study proves only that to find 31% of DMCA takedown notices "substantively flawed," you must (1) study the most concededly biased and unrepresentative set of DMCA notices available; (2) use analytic methods so absurd that they can deem even a notice targeting inarguably infringing acts "substantively flawed"; and (3) present the resulting findings in a way that concededly maximizes their potential to mislead. Such blatant manipulations make the Chilling Effects "study" useless to anyone who wants to understand the actual efficacy of the DMCA take-down process.

I will discuss the junk-science Chilling Effects "study" in more detail in my next post on this topic. When I do so, I will be making openly a point that I have often implied: The "scholarship" of the copyright-hating Free Culture Movement has become so absurdly biased against creators and copyright enforcement that refuting it is often even less challenging than shooting fish in a barrel. After all, fish in a barrel do not exacerbate their predicament by obliviously pinning "Shoot-Me" signs upon their own scaly backsides.

And when I am done making this point as to the Urban/Quilter Chilling Effects "study," I will make it again as to the newly published Samuelson/Wheatland article, Statutory Damages in Copyright Law: A Remedy in Need of Reform, 51 Wm. and Mary L. Rev. 463 (Nov. 2009), which still denies realities as basic as inflation. And then I will make it again as to the new Oberholzer-Gee/Strumpf "study," File-Sharing and Copyright, which denies realities as basic as these: (1) since 2002, technological change has made, and will continue to make, downloaded files better substitutes for purchased optical disks or legal downloads, (2) legalizing unauthorized file-sharing would encourage more people to engage more often in this now-illegal activity.

Happy New Year to all--Tom.

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posted by Thomas Sydnor @ 12:21 PM | Copyright , IP , Innovation , Internet , Mass Media , Neutrality