- DMCA takedown abuse in court.
- Google wins after defendants in absentis.
- AI copyright still a minefield.
In the absence of defendants showing up in a California court for a hearing, Google has gained a default judgement against two individuals who abused the company’s DMCA takedown process.
A DMCA takedown request can be filed in the US by any party to allege copyright infringement. In the granted injunction in question, Nguyen Van Duc and Pham Van Thien, believed to be Vietnamese, are prohibited from registering DMCA takedown notices and creating further Google accounts in the future.
Google processes around nine billion takedown requests a year. Of these, 117,000 URLs were registered by the two individuals in respect of alleged copyright infringement of T-shirt designs. The men used false names and identities to attempt to mask their activities, including that of a certain Mr E Musk, Taylor Swift and Kanye West.
The purpose of DMCA takedowns
The aim of registering breach of copyright with Google is to attempt to have the company remove a competing business from its Search results. By means of attrition, a company moves up the SERP (search engine results page) and gets more click-throughs to its site, presumably shifting more product.
The DMCA (Digital Millennium Copyright Act) was designed to provide online service providers (OSPs) and ISPs with effective immunity from prosecution from injured parties in copyright disputes, in so far as an OSP like Google cannot be prosecuted by advertising a service that is abusing copyrighted materials, as long as the OSP responds quickly to remove the offending reference – in this case, a web link on its SERP.
The Act also forces the owner of a digital property to stop advertising and selling goods that can be proven to be using materials copyrighted by someone else.
Those falsely accused of infringement have to wait up to 14 days after the OSP receives a DMCA Counter Claim to have their digital asset relisted. Given the mysteries of search engine algorithms that determine SERP rankings, fraudsters can count on two weeks of less competition than normal. At scale, with many thousands of requests affecting a relatively limited pool of vendors, the benefits of a life of punishment-free crime are clear.
It’s noteworthy that Google is not seeking compensation from the two men named in the Court judgement [PDF], and the case is seen as a statement of the company’s approach to the problem.
Fighting genuine DMCA takedown notices
Affected individuals can register their Counter Claim individually, although several commercial services are available that will undertake all necessary submissions and follow-up.
Although digital properties may be registered as organisations outside the US, the DMCA applies to ISPs and OSPs based in the US, like Google and Bing.
Work created by AI cannot be copyrighted under current legislation in the US, unlike in the UK, where work ‘solely-generated’ by AI can by the person “by whom the arrangements necessary for the creation of the work are undertaken.”
The copyright status of materials produced by AIs that have used copyright material during their training phases is still under debate and manifest in various courts across the world. If a UK-based individual ‘created’ an image with an AI they would be deemed to be the copyright holder. But if the picture-creating AI was trained on copyrighted images, then the owner of the AI is unlikely to be prosecuted or held much accountable, usually due to them employing many, many lawyers.
