Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.
Imagine you are sitting at a desk job at Google working on the mundane task of processing a list of ‘links’ that a copyright holder has sent over to you to “take-down” under the rules prescribed in the Digital Copyright Millennium Act.
HBO tried to remove the popular VLC player from Google's Index
While partaking in a typical session of copy and paste into a browser, the intern across the way – the hot girl you fancy from afar – drops her work and looks up to give you a wink and a shy smile. Distracted now, you proceed to resume removing links from Google's index effectively ending their existence.
By removing the links from Google’s indexing system, they are as good as gone. After all – if a link isn't returned by Google after a search query, does it really exist? Of course it does, in theory. But is that the case if nobody else knows it is there?
Back to the hot intern... You move on to the next batch of links to copy and paste into the machine of link death that removes locations from Google’s index, when you come across a batch like this:
Smack dab in the middle is a link. You don’t notice it because you are planning your strategy to ask out the aforementioned intern and in your haste, you kill it. The problem is that unlike all the other links, the highlighted one is a link to a very popular media player called VLC Media Player and most definitely isn't copyrighted material. Is the hot intern to blame for removing not only access, but the link to the page from everybody that searches for VLC Media Player? Or you? In common with many other websites on the Internet, Google has an obligation to remove infringing content upon receiving a valid DMCA request from copyright holders. it is under no obligation to investigate whether or not the request itself is legal. Now VLC Media Player is a popular and valuable tool. It’s open source and used by millions of people to watch films and make presentations. But it is just a media player. Think Windows Media Player. Think iTunes. Think RealPlayer. It also is great for getting around the usual annoyances of commercial DVD releases: region codes that stop you from watching them in some places, skip-proof FBI warnings, and unavoidable trailers. Imagine the consequences next month when the distraction of the hot intern caused our protagonist to skip over his normal checks of the aforementioned link and sent it to the proverbial search engine link graveyard in the sky. To be fair – HBO, the people making the take-down request are entitled to take down copyrighted material under the Digital Millennium Copyright Act, but the case highlights the shortcomings of the Act and how out of date the DMCA is in the digital era. The notification and removal process is routinely abused by copyright holders. Every week Google is asked to take down four million links. Sure – lots of links are correctly removed as are hosting copyrighted material, but who is policing these digital gate keepers? If a link to a popular player can be sneaked in to a batch of four million requests, then what else has been taken down before? And what happens if hot intern does suitably distract the desk jockey? I would have thought HBO would have learned its lesson as they once infamously asked Google in a DMCA notice to censor links to their very own website HBO.com, as well as several other legitimate sites and blogs.
Google said: “We still do our best to catch errors or abuse so we don’t mistakenly disable access to non-infringing material. Google continues to put substantial resources into improving and streamlining this process, including into identifying erroneous and abusive take downs, and deterring abuse.”