Google Publishes DMCA Takedown Request Data for Search Results
Last Thursday, Google started publishing information on its blog regarding search results it has removed because copyright holders claim the results to include websites with infringing content. As the linked page shows, Google provides information such as the number of results requested to be removed, the top five copyright owners making the requests, and the top websites whose URLs are being removed from search results. Publishing the removal information is curious and laudable, but the underlying removal of the websites from search results is of course a prerequisite for safe harbor protection from liability under the Digital Millennium Copyright Act (DMCA).
Whereas an internet service provider (ISP) like Google might otherwise be liable for indirect copyright infringement for its users’ direct infringement, DMCA § 512(c) provides a safe harbor if the ISP and its behavior meet certain requirements. One such requirement, under § 512(i)(1)(A), provides that the ISP must establish and publish a reasonable copyright policy providing how repeat infringers will be denied access. Publishing DMCA takedown compliance information is certainly consistent with developing a general copyright policy, but the DMCA doesn’t require it, and this is Google’s first time doing such a thing. So, why is Google doing it?
As Jeff Ward-Bailey suggests, Google is likely making the data available so that Congress and the public can better evaluate the continued efficacy of the DMCA. Despite a rapidly growing number of takedown requests, Google’s data shows it successfully responds to 1.2 million, apparently with a turnaround time of about ten hours. With Google being the undisputed king of search engines, the data showing its compliance with DMCA safe harbor requirements presents a clear message: if copyright protection is inadequate in the context of search engine use, the inadequacy is in the law but not its application. With Google’s data, Congress can be better informed about Internet traffic when it inevitably writes its next legislation on Internet-based copyright infringement.
Paul Lilly’s article quotes Google saying that “[f]ighting online piracy is very important, and we don’t want our search results to direct people to materials that violate copyright laws.” That’s all well and good, but one can’t read that quote and not consider whether Google is actually performing all its duties under the DMCA. Consider Google’s legal bout with Viacom over DMCA takedown duties regarding YouTube videos. As that dispute highlights, Google’s eagerness to defend copyrights online doesn’t necessarily extend to itself assuming broad duties to proactively police its services for infringement. However, with the Second Circuit affirming that ISPs need only act when they have knowledge of specific infringement, Google’s data of responses to takedown notices should show its full compliance with the DMCA.
If the evolving state of the Internet does indeed warrant modifying or replacing the DMCA, any new legislation will have a hard time proceeding past the picket lines. After Wikipedia, Google, and others motivated the public to lambast the recent SOPA and PIPA bills, I can see further protesting of any new legislation that imposes new burdens on Internet users for the sake of copyright protection. What we should remember though is that compromise resolves conflicts.