{"id":2798,"date":"2016-01-17T11:15:45","date_gmt":"2016-01-17T15:15:45","guid":{"rendered":"http:\/\/cpip.gmu.edu\/?p=2798"},"modified":"2026-04-09T18:56:05","modified_gmt":"2026-04-09T18:56:05","slug":"notice-and-staydown-and-google-search-the-whack-a-mole-problem-continues-unabated","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2016\/01\/17\/notice-and-staydown-and-google-search-the-whack-a-mole-problem-continues-unabated\/","title":{"rendered":"[Archived Post] Notice-and-Staydown and Google Search: The Whack-A-Mole Problem Continues Unabated"},"content":{"rendered":"

By Devlin Hartline<\/em><\/p>\n

After my last post<\/a> discussing the necessity for notice-and-staydown to help copyright owners with the never-ending game of whack-a-mole under the DMCA, I was asked to clarify how this would work for Google Search in particular. The purpose of my post was to express the need for something better and the hope that fingerprinting technologies offer. But, admittedly, I did not do a good job of separating out how notice-and-staydown would work for hosting platforms as compared to search engines. I think the whack-a-mole problem with hosting sites is indeed different than with search engines, and while fingerprinting may work well for the former, it\u2019s probably ill-suited for the latter.<\/p>\n

It\u2019s clear enough how fingerprinting technologies can be applied to hosting platforms, and the simple fact is that they are already being deployed. YouTube uses its own proprietary technology, Content ID<\/a>, while other platforms, such as Facebook and SoundCloud, use Audible Magic<\/a>. These technologies create digital fingerprints of content that are then compared to user-uploaded content. When there\u2019s a match, the copyright owner can choose to either allow, track, mute, monetize, or block the uploaded content.<\/p>\n

There isn\u2019t a lot of publicly-available information about how accurate these fingerprinting technologies are or how widely copyright owners utilize them. We do know from Google\u2019s Katherine Oyama, who testified to Congress<\/a> in early 2014, that \u201cmore than 4,000 partners\u201d used Content ID at the time and that copyright owners had \u201c\u2018claimed\u2019 more than 200 million videos on YouTube\u201d with the technology. She also acknowledged that \u201cContent ID is not perfect, sometimes mistakenly ascribing ownership to the wrong content and sometimes failing to detect a match in a video.\u201d Despite these imperfections, the scale of which she didn\u2019t spell out, YouTube continues to offer Content ID to copyright owners.<\/p>\n

Oyama also indicated that Content ID does not \u201cwork for a service provider that offers information location tools (like search engines and social networks) but does not possess copies of all the audio and video files that it links to.\u201d This scenario is clearly different. When a site hosts content uploaded by its users, it can easily match those uploads to the content it\u2019s already fingerprinted. When a site links to content that\u2019s hosted elsewhere, it may not be possible to analyze that content in the same way. For example, the linked-to site could simply prevent automated crawling. Of course, not all sites block such crawling, but more would probably start doing so if fingerprinting were used in this way.<\/p>\n

For Google Search, notice-and-staydown would likely not depend upon fingerprinting technology. Instead, the changes would come from: (1) delisting rogue sites, (2) promoting legitimate content, (3) improving auto-complete, and (4) ceasing to link to the very links that have already been taken down. These suggestions are not anything new, but it\u2019s clear that Google has not done all it can to make them effective. This is not to say that improvements haven\u2019t been made, and Google is to be commended for the work that it\u2019s done so far. But it can and should do more.<\/p>\n

Sticking with the example of The Hateful Eight<\/em> from my prior post, it\u2019s easy to see how Google Search promotes piracy. Using a fresh installation of Chrome so as not to skew the results, I need only type \u201cwatch hat\u201d into Google Search before its auto-complete first suggests I search for \u201cwatch hateful 8 online.\u201d After following this suggestion, the first seven results are links to obviously-infringing copies of the film. The first link points to the film at the watchmovie.ms site. A quick glance at that site\u2019s homepage shows that it offers numerous (if not only) films that are still in theaters, including Spectre<\/em>, Star Wars: The Force Awakens<\/em>, Creed<\/em>, and The Hateful Eight<\/em>. In other words, Google\u2019s first search result from its first suggested search term points me to an illicit copy of the film on a site that\u2019s obviously dedicated to infringement.<\/p>\n

I\u2019ve never heard of watchmovie.ms, so I checked its WHOIS data<\/a>. The site was registered on October 14th of last year, and Google\u2019s Transparency Report<\/a> indicates that it started receiving takedown notices for it just a few days later. To date, Google has received 568 requests to remove 724 infringing links to watchmovie.ms, but its search engine dutifully continues to crawl and index \u201cabout 39,000 results<\/a>\u201d at the site. And, for reasons I simply cannot fathom, Google prefers to send me to that pirate site rather than point me to Google Play<\/a> (or to any number of other sites) where I can pre-order the film and \u201cwatch hateful 8 online\u201d legally.<\/p>\n

Making matters worse, at the bottom of the first page of search results for \u201cwatch hateful 8 online,\u201d Google links to four DMCA takedown notices it received from copyright owners that resulted in five links being removed from the first page of results. These four notices, in turn, contain a combined total of 499 illicit links to The Hateful Eight<\/em> that Google has already taken down. This truly boggles the mind. Google takes down five infringing links from one page of search results, consistent with the DMCA, but then it links to those five links along with 494 more such links. And these linked-to links are even better for infringers, since they\u2019ve been vetted by Google as being worthy of taking down.<\/p>\n

As the producer of The Hateful Eight<\/em>, Richard Gladstein, relayed to The Hollywood Reporter<\/em>, Google told him that it is \u201cnot in a position to decide what is legal and what is illegal online.\u201d This is a cop out. In other venues, Google contends that it’s doing a lot to fight piracy. It submitted comments<\/a> to the U.S. Intellectual Property Enforcement Coordinator this past October explaining how \u201cchanges made to [its] algorithm have been highly effective in demoting sites receiving a high number of takedown notices.\u201d This shows that it is indeed in a position to determine what is “illegal online” and to take action against pirate sites. But simply demoting these sites is not enough\u2014they should be delisted altogether.<\/p>\n

Everyone knows that The Pirate Bay<\/em> is a pirate site, yet Google indexes \u201cabout 914,000 results<\/a>\u201d from just one of its domains. As of today, Google has received<\/a> 187,540 requests to remove 3,628,242 links to that domain, yet Google doesn\u2019t choose to delist the site from its results. Nor does it even appear to be demoting it. The top three search results for \u201cthepiratebay hateful 8\u201d are links to infringing copies of the film on The Pirate Bay<\/em>. It’s clear that these links are infringing, yet Google makes copyright owners continue playing whack-a-mole for even the most obvious infringements.<\/p>\n

This isn\u2019t how the DMCA is supposed to work. Congress even envisioned this whack-a-mole scenario with search engines when it wrote the DMCA. The legislative history<\/a> provides: \u201cIf, however, an Internet site is obviously pirate, then seeing it may be all that is needed for the service provider [i.e.<\/em>, search engine or other information location tool] to encounter a \u2018red flag.\u2019 A provider proceeding in the face of such a \u2018red flag\u2019 must do so without the benefit of a safe harbor.\u201d The Pirate Bay<\/em> is \u201cobviously pirate,\u201d and Google knows as much even without the 3.6 million takedown notices it\u2019s received. It knows the same thing about lots of pirate sites, including the other domain names contained in its list of greatest hits<\/a>.<\/p>\n

Google could be doing more to help copyright owners with the whack-a-mole problem, but so far, it\u2019s only taken a few baby steps. And when defending its refusal to delist obvious pirate sites, Google contends<\/a> that it\u2019s defending freedom of speech:<\/p>\n

[W]hole-site removal sends the wrong message to other countries by favoring over-inclusive private censorship over the rule of law. If the U.S. embraces such an overbroad approach to address domestic law violations (e.g., copyright), it will embolden other countries to seek similar whole-site removal remedies for violations of their laws (e.g., insults to the king, dissident political speech). This would jeopardize free speech principles, emerging services, and the free flow of information online globally and in contexts far removed from copyright.<\/p><\/blockquote>\n

Delisting The Pirate Bay<\/em> from Google Search isn\u2019t about favoring “censorship over the rule of law.\u201d It\u2019s about Google favoring the rule of law over blatant criminal infringement and doing its part to be a good citizen in the digital economy where it plays no small role. The comparison of the conduct of criminal infringers to the speech of political dissidents rings hollow, and delisting the most obvious and egregious sites does not threaten free speech. Google already claims to demote pirate sites, yet that doesn\u2019t \u201cjeopardize free speech principles.\u201d Neither will delisting them. And as long as Google consciously decides to index known pirate sites with its search engine, the whack-a-mole problem will only continue unabated for copyright owners.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Devlin Hartline After my last post discussing the necessity for notice-and-staydown to help copyright owners with the never-ending game of whack-a-mole under the DMCA, I was asked to clarify how this would work for Google Search in particular. The purpose of my post was to express the need for something better and the hope […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,26,29,1],"tags":[173,182,327,415,447,630,832,1028,1029,1141,1237,1298,1451,1561,1585],"class_list":["post-2798","post","type-post","status-publish","format-standard","hentry","category-copyright","category-innovation-2","category-internet","category-uncategorized","tag-audible-magic","tag-auto-complete","tag-content-id","tag-delisting","tag-dmca","tag-google-search","tag-katherine-oyama","tag-notice-and-takedown","tag-notice-and-staydown","tag-pirate-bay","tag-richard-gladstein","tag-search-engines","tag-the-hateful-eight","tag-whack-a-mole","tag-youtube"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2798","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=2798"}],"version-history":[{"count":2,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2798\/revisions"}],"predecessor-version":[{"id":16909,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2798\/revisions\/16909"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=2798"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=2798"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=2798"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}