Well, at least that's the way it's supposed to work. But, unfortunately, not always. Here's what I mean: New Zealand is debating a proposed "graduated response" law that would force ISPs to terminate the accounts of repeat copyright infringers. As part of the debate, Google submitted comments to the Telecommunications Carriers' Forum, an association of New Zealand ISPs. Here's how Techdirt characterized the filing:
Sounds interesting. So what's the "new evidence from Google"? Well, Techdirt doesn't link to Google's filing. Instead it just links to an article from New Zealand PC World, which doesn't tell us much.
Some entertainment industry lawyers have been going around lately, pitching a fable that the DMCA isn't really that bad, since bogus takedown notices are somewhat rare. However, some new evidence from Google suggests quite a different story. Reader Slackr points us to some news about Google filing a comment on New Zealand's proposed new copyright law that would kick file sharers offline based on accusations rather than convictions.... While it's interesting alone that Google is participating in the process, even more interesting is what it has to say about its experience with DMCA takedown notices:In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.Google's point is that these types of laws are widely abused, and setting up such a system where punishment is handed out without any real due process is going to lead to an awful lot of mistakes. But, these stats are worth discussing just for what they say about the DMCA itself, and that myth that the process is rarely abused. From the numbers Google has seen, it's quite clear that the DMCA isn't just abused, it's regularly abused in ways that are both anti-competitive and chilling.
Curious, I took a few minutes to do some heavy-duty original research (i.e., a few Google searches), and guess what I found? That "new evidence from Google"? It's: 1) not "new"; 2) not "from Google"; and 3) doesn't remotely prove the point for which Techdirt (and Google) cites it.
Here's the actual Google filing. The so-called "new evidence" is actually a citation in footnote 3 (page 9) to a 2006 executive summary of an article by two copyleft academics, purporting to find problems with DMCA takedowns. See J. Urban & L. Quilter, Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act. Full article here. So the "evidence" is not new -- it appeared in a 2006 article, and thus was collected well before that -- and it was not "from Google"; it was "from" academics with a clear point of view on copyright issues. (I should mention that I know and like Jennifer Urban, one of the authors, though we have very different views on these issues.)
So what about the actual claims that Techdirt relies on in its post? The first is that "more than half (57%) of the takedown notices [Google] has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors." But what the Urban/Quilter article actually says (and which Techdirt fails to note) is that the 57% refers only to requests for search engine result link removals. This has virtually nothing to do with entertainment companies sending notices about unauthorized copies of their works (which is what graduated response is all about). As the exec. summary itself says (p.10), "entertainment companies...choose not to send search engine complaints." Having been involved in the takedown process at a major entertainment company, I can confirm that is correct. (And the only time I ever saw one entertainment company ever send a takedown notice on a competitor's work was the rare instance of a clerical error or confusion about copyright ownership.)
Out of all § 512(c) notices in either the Google or self-reported sets (303 in total), 10 relate to movies; 7 to music; 7 to games; 63 to software; 37 to photos; 8 to other graphics; 166 to text; 5 relate to whole websites; and 4 were undefinable.