Google Responds: ‘Take Down Stay Down Is Unjustified’

bodyslam

What if ‘Takedown’ became ‘Take down, Stay down‘ for obvious, repeated infringers?  Unsurprisingly, Google hates the idea.

Major copyright holders have been struggling to control massive online infringement for a nearly two decades.  The latest effort now surrounds a major modification to longstanding ‘Takedown’ policies, powered by a Digital Millennium Copyright Act (DMCA) loophole.

The obvious problem is that anything ‘taken down’ almost instantly reappears, a problem that has powered entire business models (including, arguably, Google’s).   Copyright owners complain that despite sending millions of notices, the same content reappears, sometimes only a matter of hours after being taken down.  But what if ‘Takedown’ became ‘Take down, Stay down‘ for obvious, repeated infringers?

Copyright holders simply argue that the current system requires content to stay down, once it has been taken down.  This is exactly what the ‘Take Down, Stay Down’  movement is campaigning for, and they have a valid point.  After all, is there any reason in having legislation in place to remove infringing material, if there isn’t any legislation to prevent it re-occurring?

google

The ‘Take down Stay down’ campaign has come under some scrutiny by those in the technology sector, as the legislative change would seriously erodes safe harbors for legitimate service providers.  Unsurprisingly, one company that believes ‘Take down Stay down’ is simply ‘unjustified’ is Google.  Speaking at the Academy of European Law’s Annual Copyright Conference, Google copyright counsel Cédric Manara disregarded the idea that the campaign was a reasonable solution and concluded that the ‘Take down Stay down’ system is “not a solution and just does not work.”

Why not kill infringing links, for good?  Manara went on to say, “stay down is forever, whereas copyright has a term.”  While this point may not prove popular with frustrated copyright holders, there is some applicability to works facing copyright expiration.  Flimsy as the counterargument is, Manara would posit that companies may be well within their rights to protect their content today, but removing it from any number of providers on an infinite basis can have implications.

Google and other stakeholders will be treading carefully on this one, and potentially spending money to lobby and litigate.  Indeed, as efforts from various copyright sectors continue to gain steam on Capitol Hill and courthouses worldwide, the entire DMCA loophole could face ‘stay down’ revisions.

 

Body Slam! by Vishal Somaiya (flickr); licensed under Creative Commons Attribution 2.0 Generic (CC by 2.0).

26 Responses

  1. Screw Manara

    “Manara went on to say, “stay down is forever, whereas copyright has a term.””

    That term is life + 70.

    So this won’t be a problem in the vast majority of cases in any foreseeable future.

    And I’m sure Google is long gone or has found a more permanent solution to its huge piracy issues by then.

    Reply
    • Anonymous

      Copyright expiration terms are not relevant in the millions of cases where Google provides — and monetizes — access to criminal sites like the Pirate Bay.

      These sites are illegal in most countries and don’t serve any legitimate purpose.

      Reply
      • Takedown is not Forever - LOL.

        Uhm, takedown is not “forever” it’s until the title is in PD. So program the takedown link with the end of copyright term date on it and it will go live then… problem solved. Isn’t this one of the things computers are really good at, keeping track of dates?

        Of all the lame google excuses – that has to be the lamest of them yet. Too funny… Takedown is forever, which conversely means that they also believe that infringement is forever too…

        Reply
        • Anonymous

          Takedown of content from criminal sites should be forever, though.

          It doesn’t make sense that we have to ask Google to remove Pirate Bay links over and over again.

          Reply
    • What?

      Who says “stay down” is forever? That’s just something Google makes up.

      And it’s certainly not our responsibillty to help Google stop stealing our property. If they can’t come up with a solution on their own, they’ll just have to go away.

      I sure won’t miss them.

      Reply
      • J

        I’m still not in agreement with the broader concept of asking google to police the content of the internet. It’s like blaming a librarian for the content of a book. Absurd.

        Reply
  2. Me2

    “stay down is forever, whereas copyright has a term.”

    Glad that I’m not the only one to spot the problem with this statement.
    After a copyright expires, take down requests are no longer applicable, obviously.

    They really think we’re that dumb. And I guess some are. Sad.

    Reply
    • Anonymous

      The problem is that Google wants money for nothing. They just don’t want to work. And it does take a bit of work to determine when a file goes into the Public Domain.

      But, as stated above, they simply need to shut down if they can’t find a way to make money without selling access to illegal sites and stealing other people’s music, movies and software.

      Reply
  3. Crap

    This is such crap, why do I have to send the same takedowns to Google again and again to remove links to Pirate Bay and tons of similar sites?

    These sites will not be legitimate in the next 10,000 years.

    So they should indeed stay down forever.

    Reply
  4. Anonymous

    Millions upon millions of takedown notices to these scumbags. Just sue these assholes already.

    Reply
  5. DavidB

    To take Google’s ridiculous argument slightly more seriously than it deserves, it could be answered by a very simple modification to the legislation: in sending a DMCA takedown notice, rights-holders could be required to specify the date on which their copyright expires.* This could then be programmed into the ‘stay-down’ system, so that search results need only stay down until the expiry date. Which in all probability would be long after Google is but a distant memory.

    *like any other aspect of the DMCA procedure, this would be subject to an appropriate appeal procedure.

    Reply
    • Me2

      Laws vary by country, but the US/EU and recently Canadian standard is 70 Years after death.
      Some countries are 50 years, Mexico is 100 years after death.

      Of course a certain amount of music does come into the public domain every year. Recently Rachmaninov, Fats Waller.

      But, with the exception of some sort of Minority Report scenario, or space-time technology, present day musicians and their representatives are going to find that “Date of Copyright Expiry” a little difficult to fill out. 🙂

      Reply
      • Anonymous

        “musicians and their representatives are going to find that “Date of Copyright Expiry” a little difficult to fill out”

        Here’s the good news: Musicians and their representatives don’t have to do that. They haven’t asked Google to use their property. On the contrary!

        This is Google’s responsibility.

        Reply
      • DavidB

        The copyright on recorded music, which is the copyright usually relevant for a takedown notice, runs from the date of release, not the artist’s death. In the minority of cases where a notice is based on composition rights, and the composer is still living, the notice could specify the minimum expiry date. The all-knowing Google would surely have no problem in inserting the date of death when that arises!

        Reply
        • Me2

          “Minimum expiry” strikes me as a bit morbid, but the concept of Google trawling bots to pick up funeral scraps seems fitting.

          Apologies for including composers and publishing rights as an integral part of nearly every commercially sold recording. The US is in the minority of nations practicing compulsory license for non-dramatic musical compositions.

          I echo the sentiment that this is Google’s problem, Google’s responsibility.

          Reply
    • Anonymous

      “To take Google’s ridiculous argument slightly more seriously than it deserves, it could be answered by a very simple modification to the legislation: in sending a DMCA takedown notice, rights-holders could be required to specify the date on which their copyright expires.* This could then be programmed into the ‘stay-down’ system”

      Yeah, and that’s just one of the many ways to do it.

      But again, we’re not here to solve Google’s problems.

      Reply
  6. FarePlay

    “the legislative change would seriously erodes safe harbors for legitimate service providers.”

    VERY IMPORTANT CLARIFICATION: This statement is inaccurate. Stay Down does not erode or eliminate Safe Harbor protection for service website operators. It simply restores the spirit of the law.

    The legislators’ intended purpose was to afford website operators a no fault opportunity to remove infringing content from their website after a single notification by the copyright holder. In no way does ‘takedown and staydown’ eliminate this safeguard for websites that operate within the guidelines of ‘takedown and staydown”

    Caveat. ‘Takedown and staydown’ empowers the copyright holder to determine where they want their work distributed online. For those who want their work available on pirate sites they simply do not file a ‘takedown and staydown’ notice.

    Google and the websites they service are afforded significant accommodations with ‘takedown and staydown’. Copyright holders are still responsible for discovering infringing users of their work and filing ‘takedown and staydown’ notices to obtain relief.

    Reply
  7. FarePlay

    To those who say petitions are overused, I say we cannot afford to leave any stone unturned or overlook any opportunity to bring about long overdue, much needed changes to the DMCA.

    What will this petition accomplish? It is the a focal point for a unified conversation about how we can more effectively protect artists and curtail online piracy. It isn’t simply the number of signatures, but rather the added awareness it brings to this widely accepted practice that eliminates jobs and ends careers.

    Section 512 of the DMCA, has had a devastating impact on every working artist in America. Authors, filmmakers, musicians, photographers and every creator whose copyrighted work can be distributed over the internet has been negatively impacted by online piracy.

    Under Section 512 of the DMCA nearly every ‘alleged’ pirate site has been operating openly within the limits of the law since the take down provision in Section 512 was enacted in 1998.

    Reply
  8. Stephen Carlisle

    Here’s the legal fallacy in Google’s argument, and it doesn’t take long to find it. Before you can sue for copyright infringement, you first must prove that you own a valid copyright. So, if the work has gone into the public domain, you do not “own a valid copyright”, and have no ability to file suit. If Google or anyone else were to re-post something that was the subject of a valid take down, but has gone into the public domain, no one can sue because they do not have what lawyers call “standing”, or a recognizable legal injury.

    Reply

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