Google Counsel Sees Problems With ‘Take Down, Stay Down’

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When content is taken down in response to a DMCA notice, should service providers be required to stop the same content from reappearing? Major copyright holders believe they should but the issue is complex. Speaking at a copyright conference this week a Google counsel outlined several problems, concluding that the system "just won't work."

The Internet today is awash with millions of items of infringing content and links to the same and as long as Internet users have free will that position is unlikely to change.

Nevertheless, the situation for copyright holders is far from hopeless and those who feel their rights are being abused have remedies available. Provisions of the Digital Millennium Copyright Act allow copyright owners to order hosts, websites and search engines to take down infringing content. And, to avoid being held liable, those providers must do so quickly.

However, copyright holders feel that the DMCA lets them down. They complain that despite sending millions of notices, sooner or later the same content reappears, having been reuploaded by humans or reindexed by automated systems. What is needed, they argue, is a system that requires content to remain down once it has been taken down.

The ‘Take Down, Stay Down’ movement even has its own website but campaigning for legislative change that erodes safe harbors for legitimate service providers is an extremely sensitive topic for all in the technology sector. Nevertheless, that’s what Hollywood and the major record labels want long-term.

So as companies including Google come under continued pressure to move towards a ‘take down, stay down’ response to copyright complaints, just how willing will they be to accommodate such a regime? Well, if comments made this week by a Google counsel are anything to go by, not very keen at all.

Speaking at the Academy of European Law’s Annual Copyright Conference, Google copyright counsel Cédric Manara poured cold water on the idea.

Manara told the conference that takedowns have a limited effect and when applied to search engines a ‘Take Down, Stay Down’ regime is “not a solution and just does not work,” IP Magazine reports.

Importantly, Manara explained that applying such a regime to search engines is problematic, since such intermediaries can’t block content they don’t host.

“The Internet is a game of ‘whack-a-mole’. Blocked and removed content will be reposted back online, which is a key problem. When one road is cut off, other roads will appear leading to other directions,” he said.

Also of interest is the whole concept of content staying down on a permanent basis following a copyright complaint. While content might be unauthorized today, it’s possible that it may not be so in the future. Equally, the process isn’t flexible enough to accommodate everyone’s legal status when it comes to using content.

“Take down stay down doesn’t understand an authorized user, so it can have an overreaching effect and go too far,” Manara said. “Additionally, stay down is forever, whereas copyright has a term.”

While it may not prove popular with frustrated copyright holders desperate to stop whacking moles, Manara has an excellent point. While Disney might be well within its rights to protect its content today, removing it from any number of providers on an infinite basis clearly has implications when such content falls into the public domain, for example.

Of course, stifling the future and legal use of copyright works probably isn’t what most small copyright holders are trying to achieve when they ask for content to stay down once taken down. However, the current conversation is very broad in scope and definitely has the potential to cause unintended consequences that some corporate giants will be happy to exploit.

As the discussion develops, Google and other stakeholders will be keen to tread very carefully.


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