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Search Engines and the DMCA: Don't Be Evil

By - April 26, 2004

From time to time you might note, if you are really paying attention, that results on Google have been removed due to the DMCA, in particular a clause known as “Safe Harbor” – it has to do with supposed copyright infringement. If and when you run across such results, Google posts a notice at the bottom of the page informing you, and linking to the DMCA request that led to the result being pulled from Google’s index. This is a very fine example of Google being a good corporate citizen, but Joe Hall has a good suggestion for refinement: show this disclaimer at the top of the page, not at the bottom, where many won’t see it.

Also on this issue, the Virginia Journal of Law and Techweighs in with a paper entitled “Application of the DMCA Safe Harbor Provisions to Search Engines.” Why do you care? Well, this paper concludes that “the burden of complying with the safe harbor procedures should not be placed on search engines. Given these concerns, a better alternative would be for Congress to grant search engines complete immunity from contributory liability for copyright infringing activities by third parties.”

To reach its conclusion, the paper argues that “Internet service providers who receive notifications from copyright owners about allegedly infringing content must remove or disable access to that content in order to remain immune from claims for contributory liability. In response to such notifications, search engines have begun to remove links to allegedly infringing content from their search results. Unfortunately, application of the DMCA safe harbor provisions to search engines is problematic. Key portions of the statute refer to “subscribers” and “account holders,” making their application to search engines unclear because search engines typically do not have subscribers or account holders. Also, the lack of a subscription relationship between search engines and alleged infringers seems to make search engines more likely than other types of service providers to remove content overzealously in response to notifications.”

If you’re still with me, then you may realize what I’m about to say – yup, in the near future, most search engines *will* have subscribers and account holders. A9 already does, as does Yahoo, indirectly. Hate to say it, but this paper is already out of date, even if I agree with its conclusion.

(thanks, JD).

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2 thoughts on “Search Engines and the DMCA: Don't Be Evil

  1. I am no lawyer, but shouldn’t a subscriber be publishing copyrighted information for the DMCA to apply?

    A9’s account holders (users) don’t publish information, so I have a difficult time understanding how the Safe Harbor provision should apply to that relationship. On the other hand I can see how the Safe Harbor provision could be applied paid inclusion customer relationships.

  2. Rgdgdgdfgdf says:

    sopa is the devil, murder the authors.