First came the takedown notice. Then came the takedown notice for the takedown notice.
Not happy with making search engines such as Google stop showing links to websites that carry pirated content, several companies including Microsoft, Warner Bros, Sony Music, NBC and Fox have also been trying to scrub the evidence that they have done so.
Their target is Chilling Effects, a website created as a joint project of the Electronic Frontier Foundation and several law schools. It was formed in 2001 as a reaction to America’s Digital Millennium Copyright Act, which clamped down on online piracy while giving an escape clause to websites that link to pirated material unwittingly. Under section 512 of the DMCA, websites served with a “takedown notice” can avoid prosecution if they, well, take down links to any infringing material.
Google regularly (but not always) complies with notices and removes websites from its search index. It then publishes data about the notices it receives in its regularly updated transparency report. It also passes on the notices to Chilling Effects. Request-information pages in the online report generally link directly to the notice at Chilling Effects.
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It doesn’t take a criminal mastermind—or even a 14-year-old Game of Thrones fan—to see that Chilling Effects and Google’s transparency report serve as great resources for anybody looking for pirated material. Google lists the full URLs of sites it has not removed and domain-level URLs of those it has. Chilling Effects often (but again, not always) publishes the entirety of the takedown notice, which include addresses of all the offending websites.
As a result, Google has, it recently revealed, received 232 requests to take down links to Chilling Effects pages over the past two years—takedown notices for the takedown notices. In most cases it has ignored them.
On the surface, Chilling Effects seems to be asking for trouble. It would not be a target if it redacted the web addresses listed in the takedown notices it publishes. That would make it clear what lawyers seek to remove from Google’s index without helping those seeking what could be illegal material. Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, defends the choice to publish full URLs on the grounds that “Chilling Effects is a research database and it is important that it be as complete as possible.”
But the site’s decision to publish full URLs also serves to reinforce the message that the whole system of copyright enforcement is broken. Joe McNamee of European Digital Rights, a Brussels-based advocacy group, points out that a takedown notice for a single copyrighted work can include a thousand allegedly offending URLs. In other words, a decade after it was put in place, the model of removing links in the hope that they will not resurface elsewhere is plainly not working. “How dead does the horse need to be before it is becomes clear that flogging it is a waste of time?” McNamee asks.
Indeed, by the logic of the attempts to take down takedown notices on Chilling Effects, rightsholders ought to extend their efforts to sites at one remove—for instance, to the story you are reading, which links to those pages on Chilling Effects that link to the allegedly infringing sites. If they were serious about this, the companies requesting the takedown notices be taken down ought to send us a takedown notice as well. We’ll let you know what happens.