Google Sues Over Bogus, Anti-Competitive DMCA Takedowns

This one is from a couple months ago, but I’m clearing out some older stories that I didn’t have the time to write up when they were new.

For years, we’ve highlighted how the DMCA is regularly abused for a variety of purposes. Often it’s abused to try to take down content someone doesn’t like, by falsely claiming copyright over it. But, lately, it’s been abused by scammers trying to stifle competition.

This isn’t a surprise. As we’ve pointed out for a long while, if you give people a legal process that enables the legally required removal of content, people are going to seek to use it in all sorts of way that go beyond the official limits of those methods. This is also why we keep pointing out that other attempts to create legal processes to remove content (such as removing Section 230’s immunity protections) would like lead to vastly more abuse and suppression of free speech. There is plenty of research highlighting this issue of over-removals — but less attention has been focused on ways to prevent it.

Over the years, we’ve seen a few examples of lawsuits seeking to stop abusers, but they’re few and far between. Now Google has filed one, targeting some individuals who apparently flooded Google’s DMCA system with fraudulent takedown notices, seeking to diminish the search results of competitors.

Now, there’s some important history to cover here. For many years, Hollywood went on a massive pressure campaign to get Google to stop linking to “infringing” content. This was what the entire SOPA fight was really about. Hollywood wanted to force Google to remove infringing content from search, or face liability for linking to it.

At some point, a decade ago, Google caved to Hollywood pressure, and agreed that it would start using DMCA notices as a search signal, diminishing the search rankings of sites that received many DMCA notices. We warned that this would be abused and felt that Google was making a big mistake.

And, now we’re here, where companies recognize that they can negatively impact competitor sites by filing bogus DMCA notices. It probably happens more frequently than anyone wants to admit. But, in this case, it appeared to be so egregious that Google felt it needed to take action.

Over the last few years and continuing to the present, Defendants—led by two individuals, Defendants Nguyen and Pham—have created at least 65 Google accounts so they could submit thousands of fraudulent notices of copyright infringement against more than 117,000 third-party website URLs. Defendants appear to be connected with websites selling printed t-shirts, and their unlawful conduct aims to remove competing third-party sellers from Google Search results. Defendants have maliciously and illegally exploited Google’s policies and procedures under the DMCA to sabotage and harm their competitors.

Defendants’ scheme—which is expressly prohibited by Google’s Terms of Service and is illegal under both federal and California law—has caused significant damage to Google and its customers. Google and its third-party advertising customers have lost substantial revenue as a direct result of Defendants’ misconduct, which additionally has forced Google to expend extensive resources for investigation and remediation.

The complaint notes in a footnote, that the 117k false notices may just be a drop in the bucket, as they’ve found many, many, many more notices targeting half a million URLs, but haven’t yet determined whether or not those are also fraudulent.

In its announcement about the lawsuit, Google notes that it hopes to deter these kinds of activities with this lawsuit, but it still seems that a better way to do that is not to use DMCA notices (something that anyone can send) as a search signal. There are other ways to diminish the search results of sites dedicated to piracy, without relying on DMCA notices. But it does appear that Google has made its bed on this issue.

So far, not much has happened in the case, and it seems likely that the defendants will not show up in court. Google has asked to serve the defendants via Gmail accounts, and the court has granted that request. The individuals are in Vietnam, and it seems unlikely that they’ll want to bother engaging in the US court system.

Still, it is good to see some sort of legal action being taken here, and hopefully it does deter these kinds of egregious DMCA abuse. A better system, of course, would be to fix the DMCA to make this kind of abuse more difficult, but that doesn’t seem likely any time soon.