Abusive DMCA Take Down Notices

by AHC Attorney, Mary B. Luong

Under the Digital Millennium Copyright Act, a company, web host, search engine, or internet service providers may be granted immunity from copyright infringement liability if it complies with certain statutory requirements, including removing or disabling network or hosting access to certain infringing material.  Unfortunately, the DMCA has been slow to adapt to the evolving digital landscape since its inception in 1998.  According to the recent Wall Street Journal article, Google Hides News, Tricked by Fake Claims, from 2002 to 2010, Google received removal requests for infringing material concerning less than 100,000 webpages, but now, in 2020, Google receives more than one million copyright requests daily. 

Further, with these growing DMCA take-down notices, there has also been a growing number of fake or meritless requests.  After the Journal submitted its findings regarding Google’s take-down system and removals, Google independently reviewed the data and restored over 50,000 links that had been improperly removed and identified over “100 new abusive submitters.”  Generally, Google relies heavily on an automated DMCA take-down notice process to vet its submissions, but such an automated system may fail to identify the instances in which submitters used fake identities to submit groundless requests.  Further magnifying this problem is the fact that search engines, like, Google, are not required to inform the “takedown target” of the content removal.  Thus, it is unclear what mechanisms should be in place to ensure that certain abusers will not manipulate the system to remove legitimate content or access to such content 

Adding to this complexity, the US Copyright Office is completing research to determine the efficacy and functionality of the DMCA as some legislators push for more regulation of service providers.  These legislators argue that services providers, particularly the large ones like Google and Facebook, are not properly self-policing their platforms.  Google opposes more regulation and argues that the current system allows freedom of expression and continued reliance on copyright owners to report.  Google further cites falling numbers of reported links since 2016 and its algorithm accounting for the number of requests parties make against a particular website or blog post.   

For the full Journal article and greater detail about the findings, a subscriber of the Journal can find the article here.