Using DMCA to Nuke Competition in Yahoo!

29 comments
Source Title:
DMCA: The New Blackhat for Yahoo! search
Story Text:

Brian posts a worrying summary of how to use DMCA to nuke competitors from Yahoo! with almost immediate effect...

Simply by stating a claim of copyright infringement has been filed with regards to the Digital Millenium Copyright Act (DMCA), you can have a competitor or innocent site dropped entirely from Yahoo! search.

All it requires is a personal malicious complaint, or else get some low-paid foreign worker to stick their name on the DMCA report against another site - and, voila! - instant hand removal from Yahoo! of the entire contents of the targeted website.

If that's on the money, it's a bit worrying eh?

I've been wondering where Brian's been (though he's posted occasionally here), apparently his move was as problematic as mine...

Comments

works well on eBay also

EBay has a process of using the DMCA to remove listings. It's called VeRO. I have one product that sells more on eBay than it does either Google or Yahoo. Last November, right when the selling season was really cooking I was VeRO'd. No trial, no questions, no communication with the person who filed it. Nothing. EBay will not tell you who filed the VeRO other than to give you the email address of the person who did it. In this case, it was a dead Yahoo account.

Yahoo should follow the entire DMCA and allow you to file a Counter Notice with them. Once you do that, they are supposed to restore anything that was taken down by the original DMCA. Basically, it's a 30 death sentence.

You can also use the DMCA-as-a-weapon plot against anyone you suspect. To avoid being identified you will need a pre-paid cell phone (buy with cash), a throw away email, someone to sign a fake name and a drive to a fax machine in a different town.

From early December on in 2004 there were no listings for the product that I mentioned above. It seems someone VeRO'd every person selling that product on eBay.

I agree, I think this is a

I agree, I think this is a bad deal, and believe me, but tell me, how does it behoove Yahoo, or e-Bay for that matter to allow you to file a Counter Notice with them? Why is it worth their time to bother?

And yeah, Yahoo has had a black hole system for years. They are notoriously bad for not answering *any* inquiry.

They have to allow a Counter Notice

how does it behoove Yahoo, or e-Bay for that matter to allow you to file a Counter Notice with them?

It is part of the DMCA. They have to respond.

The Counter Notice is your statement that your work is legal or that the DMCA filer has mistakenly identified you. The next step after a Counter Notice would be court - if it goes that far.

From section 512g of the DMCA -

If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network.

The service provider (Yahoo/eBay) would open themselves up to a lawsuit if they did not restore the site after a proper Counter Notice was filed with no response from the copyright holder.

If you get hit with a DMCA don't bother emailing or calling service provider - it will not make a bit of difference and will only prolong your absense from the service. The service provider is going to follow the DMCA no matter what. You should immediately file a Counter Notice (if you legally can) and expect 30 days before you are returned to the results.

How do you actually file a

How do you actually file a Counter Notice to allegations you haven't even received a Notice about?

The point here is that when ISP's are seen to not follow DMCA procedures, the impact of malicious complaints becomes much more exaggerated, which is a big part of the issue raised.

And if ISP's aren't held to have followed appropriate DMCA procedures, who is going to hold them to account? The individual webmaster? I can really see the Yahoo! legal dept quaking in their boots at that prospect.

I also see too many holes for ISP's to wriggle out of - ultimately, search listings are proprietary, and they can list or delist whomever they wish to.

Added to that, I really don't see any ISP taking any action that affirms any kind of liability, such as admitting failure to follow proper DMCA procedure by relisting a site following malicious reporting/delisting.

Not relisting leaves them vulnerable

Update: From everything you posted (and after reading your long version on your site) it seems you have never filed a Counter Notice. Is that correct? Until you file a Counter Notice you will likely never get listed. The reason is someone has made a legal claim against your site. The DMCA is very clear in that is protects the service provider when the follow the guidlines set in the DMCA. If you have not filed the Counter Notice then you have *not* properly informed Yahoo. If they were to relist your site based upon your good word - *they would be liable*.

You need to file a Counter Notice. You don't need to know the exact complaint.

Chillingeffects has a Counter Notice generator - http://www.chillingeffects.org/dmca/counter512.pdf

Again, you don't need to know the exact complaint. I also have a Counter Notice form I can send you if you like.

How do you actually file a Counter Notice to allegations you haven't even received a Notice about?

How do you know it was a DMCA complaint in the first place?

NOTE: I am not trying to defend the existance of the DMCA - just the process that must be followed based upon my experience in using the DMCA multiple times.

Added to that, I really don't see any ISP taking any action that affirms any kind of liability, such as admitting failure to follow proper DMCA procedure by relisting a site following malicious reporting/delisting.

If they don't follow the DMCA by either removing or relisting a site/page they are not protected by the DMCA. Following the DMCA is what protects the service provider from copyright related lawsuits. Relisting a site is *not* an admission of failure to follow procedure, rather it is proof that they *are* following the DMCA.

No problem at all, Nebraska

No problem at all, Nebraska - I appreciate what you're saying. The problem I have is that I have the Yahoo! team telling myself on two occasions that the site is fingered by a DMCA complaint, and that I need to contact the Yahoo! legal dept. And that's as much information as I've been given.

..and you're not getting a

..and you're not getting a response from legal i presume Brian?

You may have missed my update

I updated my last post. Basically, you must file a Counter Notice in order to get relisted. In my experience, legal departments of service providers don't want much communication.
Fill out the CN, send it to them and start the clock. The copyright holder (the person who sent in the DMCA complaint) will have 14 days to file a lawsuit against you (14 days after they are notified). If they show Yahoo that they have filed suit - Yahoo must relist you.

You don't need to know the details of the complaint. It is enought to know it is copyright related.

hmmmmm

I'd love to discuss this but I have to go tell Yahoo! this site is ripping me off... why post somewhere that is soon to be departing the search space?????

Liable for damages for a fraudulent DMCA notice

From the Google DMCA infringement notification page:

Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. Indeed, in a recent case (please see http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/ for more information), a company that sent a infringement notification seeking removal of online materials that were protected by the fair use doctrine was ordered to pay such costs and attorneys fees. The company agreed to pay over $100,000.

Each provider sets its own rules, to a certain degree

As someone who has made legitimate copyright infringement complaints (including to eBay), I can assure you all that the DMCA has caused nothing but headaches for those of us who have to enforce our rights against unauthorized use on the Internet.

Although the law requires certain actions be taken by each provider, they have a lot of leeway in how they take those actions. eBay has been particularly bad about requiring the equivalent of a duplicate registration for copyright with their service. I have steadfastly refused to comply out of principle.

The potential for abuse of DMCA complaint procedures with providers does strike me as a serious issue, however. Like everyone else, I am exposed to that kind of abuse.

I would be interested in learning whether a generic counter notice sent to Yahoo!'s legal department will work.

Thanks for the information,

Thanks for the information, Nebraska - much appreciated - I'll take that to Private Message.

It's still very disappointing that no notification was received - I suspect that we're not going to hear the last on issues of DMCA complaints apparently leading to to unfair blacklisting of websites by ISP's.

Anyway, I'll update on the situation as and when things move to a proper resolution.

eBay easy to deal with

Michael - I have found eBay to be quite easy to deal with. I have never had to do anything out of the ordinary (they wrap the DMCA inside of their own VeRO program). Just fill out the form and *bam* - the offender is nuked.

Darn easy.

You missed the point, Nebraska

I refuse to fill out forms. I should not have to run around the Internet, filling out form after form, just to enforce my copyrights.

I am not going to do that. It's bad enough that I have to enforce the copyrights. I am not going to re-register them with every online service that exists.

There is no re-register of copyright.

You mention re-registering and eBay - that is just not happening. I can only guess that you're mistaken in what eBay is asking you.

Anyhow, the form (1 page DMCA fill-in-the-blank) takes 15 minutes to fill out. I suppose if that bothers you then hire a lawyer and have him/her fill it out for you. Alternatively, you could just give up enforcing your copyright.

No, Nebraska...

You wrote:

Quote:
You mention re-registering and eBay - that is just not happening. I can only guess that you're mistaken in what eBay is asking you.

Don't guess. Just accept what I say literally as it is without any other meaning.

I am NOT going to run around the Web filling out forms for companies like eBay in order to enforce my copyrights.

When I report a violation, I expect them to do something about it. Period.

OK. So you're wrong then.

I was trying to give you the benefit of the doubt.

I don't konw how much more plain it can be - you DON'T have to re-register your copyright. Maybe if you actually tried the VeRO process you would understand.

When I report a violation, I expect them to do something about it. Period.

Duh. And how do you report it? That is all the DMCA is asking copyright holders to do - report it in an organized manner.

Nebraska, you just don't get it

Having to fill out a form, anyone's form, is just like re-registering the copyright. I refuse to go through that process for every ISP out there.

When I report a copyright violation, I send a polite email. It doesn't extend to four pages.

DMCA is a pain in the neck which effectively requires copyright holders to re-register their copyrights with multiple private registry owners.

If you don't mind doing all that work, more power to you.

I mind. I don't do it.

What would you suggest?

I agree with your point about having to contact multiple service providers for each violation - it's a huge pain. At least eBay makes it easy after the initial short form. Once you have established yourself you can file VeRO/DMCA complaints with them via email. Very easy. This does *not* protect you from someone using the DMCA against you though...

We can't expect service providers to remove content based upon a simple email. They would be bombarded with fake accusations all the day long. At least the DMCA makes it so someone who fakes a DMCA can receive a huge fine. That slows down those with less fortitude and encourages those true copyright holders. One of the more significant things the DMCA does is to shield service providers from lawsuits if they follow the Act.

I wonder what else can be done to make it easier for copyright holders, service providers and those who have false claims made against them?

I do, in fact, expect service providers to remove content...

STRICTLY on the basis of a simple email. Your mileage may vary.

You and I probably have different intellectual property rights needs.

Congress doesn't write laws for the convenience of the people, it writes laws for the convenience of its political supporters. Large corporations lobbied to have the burden of responsibility shifted to copyright holders, and because copyright holders have little to no representation among special interest advocates in Washington, D.C., we got the shaft.

The same principle holds true with other legislation passed by Congress, including the Communications Decency Act of 1996 (a portion of which remains in force, specifically the section granting immunity to ISPs from prosecution by treating them as if they were telephone companies) and the Children's Online Privacy Protection Act (which requires individuals, including many vulnerable women, to disclose their personal information if they operate even non-commercial online services that interact with children).

The Internet needs to be policed, but not by letting Big Business dictate to Congress what is convenient for Big Business.

Insane.

And what procedure do you use to have your copyright material added back once someone has claimed it to be theirs in a simple email? Since no proof is needed according to your plan - we can off eacher on a regular basis.

LOL! Don't worry on my account!

Nebraska,

When I run into that problem, I'll give it some thought. In the meantime, I'll continue to do what works and not give in to the demands of the DMCA.

The sooner that law is repealed, the happier I will be.

Who reinforces that Yahoo

Who reinforces that Yahoo will follow the DCMA procedure? If by legal system, Yahoo won't bother until they piss on someone with really deep pockets...which screws the rest of us.

Thinking is good.

When I run into that problem, I'll give it some thought. In the meantime, I'll continue to do what works and not give in to the demands of the DMCA.

May I strongly suggest thinking BEFORE you act?

A DMCA form is a very simple one: you set out who you are, you affirm that you are the copyright holder, you show that there is a copyright violation, and you ask for action.

How hard is that? It's not rocket science or legalistic mumbo-jumbo. AS a matter of fact, in practice countries that don't ascribe to the DMCA act request that you give them the very same information before they act, so I just use DMCA forms for everything - clean and simple.

Having said that, there is no legal requirement for a specific form to be used - only specific information presented. There is no "Official" DMCA form. Just official requirements to be present in the form.

Hopefully Nick won't mind the link drop (remove if it's an issue):

http://www.mcanerin.com/articles/copyright03.htm

This is part 3 - part one discusses the need for copyrighting, part two discusses DMCA and legal actions, and part 3 contains some DMCA templates in Word format for MSN, Yahoo and Google, as well as for ISP's. Please be gentle on my poor server - it's weak and in need of a better connection.

If anyone is interested, I can also create a template for a counter notice. I haven't needed one myself, so I don't have one posted.

Ian

Happy to say that Platinax

Happy to say that Platinax is now relisted by Yahoo!
http://www.platinax.co.uk/blogs/brian/archives/2005/07/platinax_relist.html

However, it has certainly raised some overall concerns about DMCA use and procedure in general.

I'd especially like to thank everyone who has so far helped make the whole issue of DMCA much more visible, Threadwatch for daring to discuss it, Yahoo! staff for being so nice about the issue, and Nebraska especially for not only helping resolve this in the proper manner, but also for highlighting other issues of concern regarding DMCA and ISP's.

Good news brian! Glad to

Good news brian!

Glad to hear it worked out..

Fill us in

What was the procedure for getting relisted, blow by blow?

I simply sent a Counter

I simply sent a Counter Notice as advised by Nebraska - within a week I had a pleasant phone call from the legal dept telling me that there was a misunderstanding - no DMCA was apparently filed according to them, and that the site had been recluded for indexing.

Seems I was a little late posting my update, though - WepProNews apparently just picked up the original story and sent it out today.

Great news!

I am happy to hear it all worked out.

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