Absurd Automated Notices Illustrate Abuse of DMCA Takedown Process
Every month, TorrentFreak reports on absolutely ridiculous takedown notices issued by copyright holders to Internet service providers related to allegedly infringing content, using the process created by the Digital Millennium Copyright Act (DMCA). This month, TorrentFreak tore apart a series of takedown notices sent to Google by the German-based Total Wipes Music Group targeting, among other things, an EFF webpage describing how to use PGP for Mac OS X—a webpage within our Surveillance Self-Defense guide.
TorrentFreak aptly dubbed Total Wipes’ latest streak of takedown requests as “the world’s most idiotic copyright complaint.”
Indeed, the notice that cites the EFF webpage as an “allegedly infringing URL” purports to protect an album called “Cigarettes” on Spanish music label Mona Records. But not one of the seven allegedly infringing URLs listed in the notice even refers to the album, let alone in an infringing way. Another notice issued by Total Wipes to Google two days earlier purports to target pirates of the album “In To The Wild – Vol.7″ on music label Aborigeno Music. Again, not one of the 95 allegedly infringing URLs had anything to do with music, as TorrentFreak reported. The notice instead listed generic download pages for some of the world’s most popular online services, including Skype, Tor, Dropbox, LibreOffice, Python, and WhatsApp.
Total Wipes, which represents 800 international labels, stated in an email to Ars Technica that the recent notices were the result of a bug in their automated anti-piracy script. According to the email, “several technical servers [sic] problems” during the first week of February caused their automated system to send “hundreds” of DMCA notices “not related at all” to any of their copyrighted content.
But the bug is only part of the problem. Sending automated notices, without human review, is itself an abuse of the DMCA takedown process.
The Problem With Robots
According to the DMCA, a takedown notice must be based on a “good faith belief” that the targeted content’s use of copyrighted material is not authorized by law. The use of robots, without any human review, simply cannot satisfy this standard. Indeed, whether a use of copyrighted material constitutes a fair use protected by federal copyright law is often a question only a human can answer, after taking into account the context and purpose of the speech in question.
Total Wipes’ utterly laughable takedown notices illustrate the serious flaws in using robots to try to detect copyright violations. But even without bugs, robots cannot be relied upon to determine whether any given use of copyrighted material is lawful.
We have in the past criticized Warner Brothers Entertainment for using robots to issues thousands of infringement accusations, without any human review, based primarily on filenames and metadata rather than inspection of the files’ contents. Like Warner Brothers, Total Wipes is similarly using robots to abuse the DMCA takedown process.
According to Google’s Transparency Report, between May 28, 2014 and February 22, 2015, Total Wipes sent Google 41,321 requests to remove webpages from Google’s search results, with a median of 1,214 requests per week. Across those requests, the music group requested that Google remove a total of 196,963 URLs. And according to the Chilling Effects database—which collects and analyzes legal complaints and requests for removal of online materials in an effort to help Internet users know their rights and understand the law—Total Wipes sent Google over 12,000 takedown requests in the last month alone.
Seeing ridiculous takedown requests from Total Wipes is nothing new. Back in August, TorrentFreak reported on a month-long DMCA notice-sending spree in which the music company targeted, among other things, sites that utilized the word “coffee.”
Due to the lack of human review, automated takedown notices often result in censorship of perfectly legal content. Although Google has the wherewithal to analyze takedown notices and reject those that are unwarranted, it doesn’t always do that. And many other sites automatically take down allegedly infringing content upon receipt of a notice, even when the notice is clearly bogus. This is because so long as a service provider complies with the DMCA’s notice and takedown procedure, it is protected from monetary liability based on the infringing activities of third parties. Of course, unwarranted takedown requests would not subject a service provider to monetary liability, but not all service providers undertake even the moderate level of effort that Google does to assess whether content complained of should actually be taken down.
The Need for Transparency
TorrentFreak was only able to discover Total Wipes’ ridiculous DMCA takedown notices thanks to Google’s Transparency Report, which publishes takedown requests—and data regarding takedown requests—made by copyright owners or their representatives to remove web pages from Google’s search results. Google’s Transparency Report enables the public to spot potential abuses of the takedown process. And here, the Transparency Report enabled the discovery of the Total Wipes’ bug—a bug that otherwise would likely have resulted in thousands more unwarranted takedown requests.
Enabling the public to spot such potential abuse is crucial for preventing censorship. Indeed, some takedown notices amount to nothing more than blatant attempts to censor legal content. And as evidenced by the robo-takedowns of both Total Wipes and Warner Brothers, the law does not sufficiently deter abuse of the DMCA takedown process. As such, more Internet service providers should follow Google’s lead and provide transparency into the takedown notices they receive.