As you may recall from my earlier article back in November, Zuffa Takes the Piracy Fight to Google, Zuffa continued its battle against piracy by sending a Digital Millennium Copyright notification to Google.
As set forth in my earlier article, Zuffa was attempting to get Google to stop having its search engine return results for a number of allegedly infringing websites.
The takedown notice sent to Google provided a list of specific URLs that Zuffa alleged led to works that infringed on its intellectual property because that was required by Google as set forth in its DMCA instructions.
Specifically, the Google instructions provided:
FOR WEB SEARCH, YOU MUST IDENTIFY EACH SEARCH RESULT THAT DIRECTLY LINKS TO A WEB PAGE THAT ALLEGEDLY CONTAINS INFRINGING MATERIAL. This requires you to provide (a) the search query that you used, and (b) the URL for each allegedly infringing search result.
* * *
Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice will be sent to a third-party which may publish and/or annotate it. As such, your letter (with your personal information removed) will be forwarded to Chilling Effects (http://www.chillingeffects.org). You can see an example of such a publication at http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861. A link to your published letter will be displayed in Google’s search results in place of the removed content.
Thus, I noted back in November that the obvious downside of such a takedown notice setting forth the specific websites where alleged infringement is occurring is that a list like that could become public (at Chilling Effects) providing a roadmap to those seeking illegal streams.
It appears that Zuffa has now attempted to step up its game in an effort to prevent Google from forwarding the DMCA takedown notices to Chilling Effects (hat tip Rights of Writers).
Specifically, Zuffa has now included language in its DMCA takedown notice providing that retransmission of the legal notice to Chilling Effects will itself be a violation of the Copyright Act.
In other words, Zuffa’s third-party agent, MiMTiD Corp., is claiming that the takedown notice itself is copyrightable material and retransmission by Google to Chilling Effects would run afoul of the Copyright Act.
For reference, Zuffa has now included the following language in its DMCA takedown notice:
IMPORTANT NOTICE: None of the information contained in this legal notice is to be transmitted and/or released to any third party, including but not limited to Chilling Effects (chillingeffects.org), without the express written permission of the the copyright owner and or his agent. As stated in Section 512 of the Digital Millennium Copyright Act, and in the normal course of processing and notifying the infringing counter party, recipient must only include information specific to that counter party’s infringement and must not include this entire notice. Any re-transmission in whole or in part of this legal notice by the intended recipient will be a direct violation of U.S. and International Copyright Law and will be prosecuted to the fullest extent of the law by the copyright owner.
Please also note that with the express permission of the copyright owner, in addition to being forwarded to certain members of the United States Congress and the U.S. Department of Justice, MiMTiD will send this legal notice to a third-party that aggregates repeat infringer data gathered by different agencies and infringement mitigation service companies around the globe and provides centralized access to that data to be used by global policy makers and law enforcement agencies to create and enforce copyright law. As such, this legal notice will included in The Chilling Report (http://www.chillingreport.com). To obtain secure access to the Chilling Report please email The Chilling Report at [redacted]chillingreport.com or call [redacted].
(emphasis added).
In an article by Mike Masnick over at Tech Dirt, Is It Copyright Infringement To Pass A DMCA Notice On To ChillingEffects?, he takes a closer look at the issue.
Notably, and not surprisingly, notwithstanding the above-referenced language,Zuffa’s February 6, 2011 letter is still publicly available at Chilling Effects.
While Mike Masnick does not address this issue specifically, I should note that Google could certainly argue that by submitting the takedown notice (given the DMCA instructions above) the party IS consenting in writing to retransmission to Chilling Effects.
Remember, the new Zuffa language provides only that the takedown notice should not be “released to any third party, including but not limited to Chilling Effects (chillingeffects.org), without the express written permission of the the copyright owner and or his agent.”
Also worth noting that Google has apparently changed its takedown notice procedure and now allows a party to submit the request on-line with an electronic signature. Notably, the electronic form also provides the following language above the signature line:
It is also our policy to document all notices of alleged infringement on which we act, including by sending a copy of the notice to one or more third parties or making it available to the public. You can see an example of such a publication athttp://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861. . . . Please note that a copy of each legal notice we receive is sent to a third-party which may publish and/or annotate it. As such, your letter (with your personal information removed) will be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication.You can see an example of such a publication at http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861. A link to your published letter will be displayed in Google’s search results in place of the removed content
Zuffa would presumably argue that it has not consented to retransmission because Google is imposing an additional requirement that is not provided in the DMCA or the Copyright Act.
I will continue to monitor.
Justin Klein is an attorney at Satterlee Stephens Burke & Burke LLP in New York City where he concentrates his practice in commercial litigation and represents clients in the fight industry. He regularly addresses current legal issues that pertain to combat sports, including efforts to legalize MMA in New York, at his Fight Lawyer website. He is a licensed boxing manager with the New York State Athletic Commission as well as the founder and Chairman of the Board of the New York Mixed Martial Arts Initiative, a non-profit organization that gives inner city youth the opportunity to experience the emotional and physical benefits of martial arts training. Justin lives in New York City where he trains in jiu jitsu and boxing.
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Chilling effects is a site that provides information about the legal aspects of copyright law. Some thing that is starting to become more and more common is crowd sourcing legal issues. The best example I can think of that do this but probably the best known is groklaw.org. In their case they post things like patents and ask for prior art. Or post legal documents and ask people who have knowledge in the industry to look for inaccurate claims, contradictions or facts that are not in the document that may be useful.
There is a case to be made that by denying Google the right to forward the documents to who ever they want with out court over site they are denying Google the opportunity to put together a legal defence.
So… did Google ever officially responded to the request? Seems like the wishes of a small company like Zuffa would not be a priority to them. Has there been any added pressure from the government to get Google to comply? Just seems like the whole story is merely Zuffa issuing a request, then another request to not share the original request. If that’s it, it’s really not much of a story, but I could be mistaken.
*respond* whoops
Zuffa made a request. Google complied keeping their protection under the safe harbours provisions of the DMCA. But they filed the take down notice with Chilling Effects. The take down notice lists all the links that Zuffa had asked to have taken down. Really it makes for a great cheat sheet for where to find the streams. Zuffa then followed up with a copyright notice saying that Google couldn’t share the DMCA take down notice. They aren’t the first to try this.
Why this is a story is because of where it could lead. One thing that could happen is Google says F it and decides to go to court and have a judge finally get on the record as to whether providing a link is the same as providing the file. If Google is ever going to do this a puny insignificant yet belligerent and over bearing company like Zuffa and one that wouldn’t necessary be liked by a jury would be the perfect ones to pick in court.
Google could just fold and do as they are told by Zuffa. But the DMCA is being abused by a lot of companies. Chilling effects is a clearing house to track how the take down notices are being used. They are there to help protect Americans First Amendment rights. Copyrights get abused all the time. Companies putting copyright notices on the constitution is one of my favourite examples. It would be a very bad day for the US if DMCA take down notices could be filed and no one would ever know that it happened.
Sigh… Zuffa being bullies again.
I really hope that Google doesn’t cave to this. I can see why they’ve been removing search results, even though I don’t approve of it. Stopping search engines are an easy way out, if Zuffa wants to fight these websites, go after the websites themselves! If Google caves to this, they’re effectively letting Zuffa control them completely.