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Google is refusing to act on DMCA notices
Marshall Clark




msg:752088
 10:32 pm on May 8, 2005 (gmt 0)

I posted in another thread about some problems I was having getting Google to act on several DMCA notices I had submitted.

Over a month later I finally received a reply that said Google is refusing a number of my requests according to their "content guidelines". No details or references were provided to these content guidelines.

Many of the remaining infringing sites are classic scraper spam with Adsense ads. Seeing as how these spam sites are built specifically to target Adsense revenue and are monitized entirely by Google ad dollars, I'd have thought they'd be quick to remove them so they'd qualify for DMCA Safe Harbor.

I've followed Google's DMCA rules to the letter but was still denied. The sites are clearly taking my content and Google has clearly stated that they will not act to remove it from their index. Anyone have an idea of how I should proceed from here?

 

s_clay




msg:752089
 10:12 pm on May 9, 2005 (gmt 0)

I think you need to address your complaint with the ISP that is hosting the infringing site, as well as the site owner(s). This is a more direct approach that gets at the root of the problem.

Steve

Marval




msg:752090
 10:45 pm on May 9, 2005 (gmt 0)

Here is a link to an overview of the act - which implements the WIPO treaties for the US - (hopefully the mods will let this one fly)
copyright.gov/legislation/dmca.pdf
If you read it closely, there is a section on the responsibilities of a search engine linking to infringing sites that includes a bit about financial gain for the SE (should be something you look into)
Understand that the DMCA only applies to US sites - other nations have similar laws under the WIPO treaties and the first and most important clause that will draw your attention is that to pursue actions (especially beyond a standard DMCA notice to the ISP) you will have to have your work actually registered with the Copyright Office.
I have been sucessful with a DMCA on one site I own where I was dealing with theft of the original content (the whole site was copied and place on another domain) but have seen Google backing off from scrapers and the like as it seems they consider that a different beast?

bobothecat




msg:752091
 10:51 pm on May 9, 2005 (gmt 0)

Anyone have an idea of how I should proceed from here?

Consult an attorney... you've done all you can by yourself - it's probably time to bring some 'clout' to the table.

If your content is an actual registered copyright - I'm sure you'll have no problem finding counsel.

BigDave




msg:752092
 11:44 pm on May 9, 2005 (gmt 0)

You next step is to speak to an attorney, or drop it.

My guess is that they did what few ISPs would do and actually spent some time investigating your complaint. And for some reason (probably totally unrelated to AdSense) they disagreed with your appraisal that the sites were in violation of your copyright.

If they followed proper procedure, and can show their reasoning, they are almost certainly in the clear on the safe harbor provision, even if they are shown to be incorrect in court.

And don't expect a lawyer to take the case on contingency. I have gotten the impression that it is almost unheard of on copyright cases that are going to court, ass opposed to just writing threatening letters.

walkman




msg:752093
 12:06 am on May 10, 2005 (gmt 0)

lawyer (very expensive) but I have to wonder why G didn't remove it. How much content was copied?

"The sites are clearly taking my content"

Ledfish




msg:752094
 12:14 am on May 10, 2005 (gmt 0)

I filed a DMCA notice about 10 days ago on a site that was scaper our homepage content including title, meta and everything.

I haven't heard a word from Google and the page is still in the index.

Wonder if with all the hijacking and scraping, that Google copyright department is overloaded.

Hey Google, it might be easier to address the hijacking/scraping situation with some kind of algo change then trying to deal with the copyright violation problem on a one to one basis.

Marshall Clark




msg:752095
 1:19 am on May 10, 2005 (gmt 0)

The sites are all scraper sites of one kind or another. Most are pulling 2-4 sentences of content from my sites (about 40-50 words of content). This content is then listed alongside content scraped from 10-12 other sites and capped with a block of Adsense ads to monitize it.

It's probably not enough duplicate text to have any effect on my rankings, but it's pretty annoying to me that both spammers and Google are knowingly making money off my original content.

BigDave




msg:752096
 1:46 am on May 10, 2005 (gmt 0)

It may be annoying to you, but it is quite possible, or even probable, that the snippet is either insufficient to claim copyright protection, or they could make a fair use claim.

And it is certainly not in google's favor to support people trying to press copyright claims on snippets of text.

Remember, copyright only grants you certain limited rights, not total control.

I'm not saying that it is not copyright infringement, just that most webmasters (and people in general) don't have a clue as to what copyright actually gives them, nor the limits on those rights.

Google on the other hand, in many ways lives right on that edge, and they have certainly done their legal research. I would not personally bet against them if they decide that something is not infringement.

skunker




msg:752097
 2:28 am on May 10, 2005 (gmt 0)

Yea, if it's just pieces/section of text and not the entire article, then they can scrape it. It's perfectly legal.

Marval




msg:752098
 2:44 am on May 10, 2005 (gmt 0)

Keep in mind that those scraper sites are basically doing exactly the same thing Google does - botting your text, creating a snippet just like Google does for its listings, and then monetizing it as mentioned earlier.
It would be tough for Google to say its infringement when they do exactly the same thing for their listings

fischermx




msg:752099
 3:00 am on May 10, 2005 (gmt 0)

Don't confuse things.
In one side we all hate scrapper sites, but trying to take them down through DMCA is a bit naive, mainly, because as some other pointed, that's the same text is shown in search engines, and aren't you sueing Yahoo, Google, MSN for that, are you?

So, I rather recommend you to go for the path of acuse them for violating Adsense TOS or search engine spam, you name it.

Read the thread "Why google sponsor scrappe sites?", it was a large one.

walkman




msg:752100
 3:49 am on May 10, 2005 (gmt 0)

don't blame Google then. Copyright is not absolute. 50 words is nothing and easily falls within fair use.

"Most are pulling 2-4 sentences of content from my sites (about 40-50 words of content)."

Marshall Clark




msg:752101
 3:17 pm on May 10, 2005 (gmt 0)

I agree that its not a serious problem - but fair use only applies to non-profitable uses. It's a whole different ballgame once you use someone else's content in order to make $$$. Fair use is intended for personal, artistic, or social commentary use - not for scaping content and using it to run ads.

I guarantee you if someone pulled a few sentences from articles on WSJ, NYT, and Newsweek and put Adsense at the top heads would roll. :)

walkman




msg:752102
 3:22 pm on May 10, 2005 (gmt 0)

"I agree that its not a serious problem - but fair use only applies to non-profitable uses. "

do a little bit more reading.

Longhaired Genius




msg:752103
 3:51 pm on May 10, 2005 (gmt 0)

fair-use certainly only applies to use that is fair. Is this fair?

walkman




msg:752104
 4:30 pm on May 10, 2005 (gmt 0)

if it was clear cut, we wouldn't need lawyers or judges. It only takes a few hundred thousand$ to find the answer :)

"fair-use certainly only applies to use that is fair. Is this fair? "

Atticus




msg:752105
 4:52 pm on May 10, 2005 (gmt 0)

See [copyright.gov...]

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

While I am not a lawyer, item #4 looks like it could have some application to scraper sites, page hijackings, domain poisoning, etc.

Jenstar




msg:752106
 5:11 pm on May 10, 2005 (gmt 0)

If the site is running AdSense, you can also send an email to the AdSense support team after you have filed the DMCA:
[webmasterworld.com...]

You do need to make the AdSense team aware of it yourself though - just filing the DMCA is not enough.

fischermx




msg:752107
 5:23 pm on May 10, 2005 (gmt 0)


4. the effect of the use upon the potential market for or value of the copyrighted work.

While I am not a lawyer, item #4 looks like ...

While I'm not a lawyer either, that looks exactly the same use search engine does of your content.
Are you going to sue them as well?

Go for the adsense TOS violation route, that's could be easier, though I've read about sometimes Google don't take down scrappers. Read the thread I mentioned in my previous post, specially this part :
[webmasterworld.com...]

Atticus




msg:752108
 5:36 pm on May 10, 2005 (gmt 0)

fischermx,

As the owner of my business and my content, only I can determine if a site copying mine has 1) a positive impact on the market for my product, 2) no impact on the market or 3) a negative impact.

A listing in a respected SE, in my opinion as the owner of my busineess and content, is that my market value is thereby increased. So NO, I would not sue them.

On the other hand, the only folks who like scrapers and 302s are scraper publishers and page hijackers. The owners of the hijacked content hate them specifically because they negatively effect the real owner's profitablity.

If YOU feel that being listed in a SE is hurting your business, why not just ban them via robots txt?

fischermx




msg:752109
 5:47 pm on May 10, 2005 (gmt 0)


If YOU feel that being listed in a SE is hurting your business, why not just ban them via robots txt?

Don't put words in my mouth. I didn't say that.
Calm down. Learn to read slowly ;)

Atticus




msg:752110
 5:58 pm on May 10, 2005 (gmt 0)

fish,

That is EXACTLY what you said. You said a search engine listing is "exactly the same" as a scraper listing.

I am not going to pollute this thread with a worthless debate about your inability to understand your own posts.

I provided the information from a legitimate government source to help inform this discussion of copyright. I hope that those interested in learning about the topic will make use of the material provided.

fischermx




msg:752111
 6:26 pm on May 10, 2005 (gmt 0)

I'm not going to pollute the thread either. But if I failed to understand my own post might be due the same medication we both are taking, since it seems you don't understand your angry post either:


If YOU feel that being listed in a SE is hurting your business, why not just ban them via robots txt?

When did I say that? lol
I never mentioned nothing negative about SE.


That is EXACTLY what you said. You said a search engine listing is "exactly the same" as a scraper listing.

Where are the listing of the scrapers taking from?
Aren't from search engines? lol

Ok, ok, ok, ok, the SE listing does not hurt you while the scrapper does, because it beats you in the SERPs, ok I understand that.

My advise for the original poster pretend to encourage him to don't waste time on large routes.

What is YOUR final advise to the guy?

BigDave




msg:752112
 7:36 pm on May 10, 2005 (gmt 0)

Okay, here we go. There is a huge pile of misinformation here.

fair use only applies to non-profitable uses

Wrong. Oh so very wrong.

The commercial nature is only one factor. In fact virtually all fair use is commercial in nature. Newpapers are commercial, and they are major users of Fair Use in their commentary.

There is no "line in the sand" on any of the factors, they must be weighed in a court on a case by case basis.

do a little bit more reading

I always like to refer people to the 11th Circuits decision on Suntrust v. Houghton Miffin, also known as The Wind Done Gone Decision. While it deals with parody, it is an excellent example of weighing the different factors in Fair Use cases.

While I am not a lawyer, item #4 looks like it could have some application to scraper sites, page hijackings, domain poisoning, etc.

Read some Fair Use decisions to learn how those are applied. They aren't just a checklist. All four factors must be applied in weighing what is Fair Use.

There is also what is commonly considered to be a fifth unwritten (and often overriding) factor, is it in the public's interest.

As the owner of my business and my content

You are not the owner of your content. Your content belongs to the public as soon as you publish. You are the owner of the copyright on your content. There is a difference.

From the suntrust decision:
This has an important impact on modern interpretation of copyright, as it emphasizes the distinction between ownership of the work, which an author does not possess, and ownership of the copyright, which an author enjoys for a limited time. In a society oriented toward property ownership, it is not surprising to find many that erroneously equate the work with the copyright in the work and conclude that if one owns the copyright, they must also own the work. However, the fallacy of that understanding is exposed by the simple fact that the work continues to exist after the term of copyright associated with the work has expired. "The copyright is not a natural right inherent in authorship. If it were, the impact on market values would be irrelevant; any unauthorized taking would be obnoxious." Pierre Leval, Towards a Fair Use Standard, 105 Harv. L. Rev. 1105, 1124 (1990).

only I can determine if a site copying mine has 1) a positive impact on the market for my product, 2) no impact on the market or 3) a negative impact.

Actually, you are not the one that makes that determination, and the determination is almost certainly not made on the basis that you would expect.

The determination would be made by a judge and a jury.

Again, I highly recommend reading the SunTrust decision, then going on to read some of the others.

Atticus




msg:752113
 8:23 pm on May 10, 2005 (gmt 0)

BD,

I understand that judges and juries make legal decisions.

The "determination" to which I claimed sole rights is the determination as to whether I would want to sue someone for linking to me in a negative manner, not the final legal outcome of the case.

As I am the only person who knows what my income is, what kind of traffic I get from SEs vs scrapers etc, etc, then I am the only one who can determine who I might wish to sue or not. 'fishermx' is in no position to make a determination that SE listings effect my business in exactlty the same way that scraper listings effect my businees because he doesn't even know what industries I compete in, let alone my profits and losses. That was my point.

I understand that if i went to court that I would have to present evidence to back up my case and that the case would be adjudicated by others.

Otherwise your post was very informative and appreciated. But let me approach this from a different tack. At what point would you consider that copyright infringement HAS taken place? Surely there are examples of real and true violations of copyright law. If folks have a hard time understanding what is NOT intellectual property theft, can you show us what is the lowest possible threshold for something that would accurately be called copyright infringement?

BigDave




msg:752114
 9:08 pm on May 10, 2005 (gmt 0)

can you show us what is the lowest possible threshold for something that would accurately be called copyright infringement?

No. Because there is no specific "threshold". There is a very large gray area where it would greatly depend on the judge, jury, and how good your respective lawyers are.

My non-lawyer advice that I have given several times in forum44 is to avoid the gray area from both sides, because it can be expensive and the results are unpredictable.

If you are using someone else's content without permission, then try to stay well within the definition of Fair Use on all the factors.

If you are a content provider, don't stress over casual personal use or excessive quoting. If they have a possible Fair Use claim that can get them past the Preliminary Injunction stage, then it is almost certainly not worth fighting. Instead, go after blatant infringers.

And if you insist on playing this game, get yourself a good experienced copyright lawyer and pay attention to what they tell you about which actions are worth persuing. Ones that just like to send C&Ds, but have no court experience won't get you very far when you are talking about legal action against a company like Google.

Atticus




msg:752115
 9:34 pm on May 10, 2005 (gmt 0)

BD,

All excellent points. I'm well aware of the gray area, the link I provided explicitly describes it, "The distinction between 'fair use' and infringement may be unclear and not easily defined."

The very existence of the gray area may be enough to give some webmasters who wish to fight back some room to manuever. I agree that it would be useless for small publishers to try to take G to court over fair use issues. But I have found that sending an email expressing my concerns about intellectual property theft to parties copying my content was enough to get them to remove my content.

Sometimes the gray area works for you, sometimes it works against you.

Fairla




msg:752116
 9:42 pm on May 10, 2005 (gmt 0)

There's nothing you can do about another site using 40 or 50 words that are attributed to your site. You're wasting time and energy getting upset about that.

I've had many, many, many problems with people copying entire articles from my site, and Google is very responsive to DMCA complaints. But you can't expect them to act on something that doesn't violate copyright law.

Atticus




msg:752117
 10:02 pm on May 10, 2005 (gmt 0)

OK, let's say that it's not possible for a site copying only 40-50 words to be guilty of copyright infringement. (I'll leave the discussion about whether it's legal to copy 40-50 words from a work that is only 40-50 words long for another day...)

I don't think that anyone here is married to the idea that snippets constitute copyright infringement. What folks want is a way to fight scraper sites.

Does anyone here have any other ideas about how a publisher can uses the law to fight against the loss of income/reputation caused by scraper sites, page hijackings, domain poisoning etc?

I've seen scrapers do everything from 302 redirects gone innocently (?) awry to porno sites that copy another site's content for use as a SE trap, incorporating the original site's business name and even their copyright notices into pornographic content.

Who can give us a tool to fight against such things?

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