Google is experiencing a malicious DMCA crisis that is causing legitimate content to be removed from the Internet. Malicious actors are filing fake DMCA notices with Google, leaving publishers trapped by a system that is supposed to protect them. Many are asking Google to do something about it, but they are highly likely to be disappointed.
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. For legal counsel regarding a specific DMCA dispute, please contact a licensed attorney.
Digital Millennium Copyright Act (DMCA)
The DMCA is a law that went into effect in 1998. The purpose was to modernize United States copyright law by giving digital creators a way to enforce their existing copyright protections. Another part of the law gave Internet platforms what is known as Safe Harbor, a legal framework that enables them to host content without being dragged into copyright infringement lawsuits.
The goals of the DMCA had a good intent:
- Give digital creators a way to protect their work from plagiarizers and other infringement.
- Provide Internet platforms a way to prosper without the threat of copyright lawsuits hanging over them. All they had to do was to provide a way for digital creators to report copyright infringement.
What happened next turned into a letdown for digital creators and created a loophole for malicious actors to exploit.
What Went Wrong With The DMCA?
The DMCA requires platforms to provide a way for copyright infringement to be reported so that infringing content can be removed. But it also requires platforms to accept a counter notice by the alleged infringer that will result in the restoration of the content that had previously been removed. That counter notice part is supposed to protect against false infringement claims.
A platform’s obligation to remove content is outlined in the DMCA law, 17 U.S.C. § 512(c)(1)(C) which details that they are not liable for infringement claims if they comply with a multi-part set of statutory conditions. Along with meeting requirements like lacking knowledge of the infringement and not directly profiting from it, they must satisfy subsection (C), which specifies that the provider:
“…upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”
It is at this point that things go wrong.
Why The DMCA Problem Will Only Get Worse
Something that has only now become evident is that the DMCA never makes Google (or whoever) responsible for identifying whether a DMCA notice is valid or not. Their job is just to accept the notice and remove infringing content. And if they receive a counter notice that contests the claim, they are required to restore the content (after 10 to 14 business days).
There is no requirement for Google to investigate and decide whether the copyright claim…
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