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Here at Digital Digest, we've been covering the myriad of copyright related issues on the Internet (or at least trying to). We've often spoke about the unfairness of the DMCA and how it easily leads to abuse, even though content owners, the ones who actually helped to craft the law, now say the DMCA isn't strong enough.

We've reported on the story where Google, who receives thousands of DMCA take-down notices every day (each with thousands of URLs to take down, potentially), previously noted that 57% of DMCA claims submitted are done so by rivals seeking to gain an unfair advantage, and that 37% were not valid copyright claims.

But it's one thing to report on the misuse of the DMCA, it's another to be a victim of one.

Do a search for "Digital Digest" on Google, and you may notice something strange - our home page is no longer listed at the top of the results (instead, it lists our main software page), and at the bottom of the results, you'll see that familiar DMCA take-down message. The actual DMCA complaint against our home page, and two other pages related to the software PowerDVD, is listed here, or rather, it will be listed there once Chilling Effects processes the notice. As the complaint was sent to Google, we received no notice of any issues, and only noted the problem by chance, when googling ourselves (come on, we've all done it). Google eventually sent us a notice of the removal, but it was only a week later, today, that we received the actual notice, and the actual reason for the removal.



What we saw was a list of web pages that guardlex.com, the company responsible for sending out these notices (probably on behalf of the rights holder), had found was infringing the copyrights of Cyberlink, for their product, PowerDVD (we had guessed that might have been the case, due to the two PowerDVD related pages that were removed). And while the list was heavy with piracy related websites, such as The Pirate Bay or IsoHunt, it also contained some notable entries too.

Legitimate pages from websites such as cnet.com, softonic.com, Brothersoft, and even our friends over at Afterdawn, were listed too. All legitimate websites hosting legitimate content, mostly to promote Cyberlink's PowerDVD. The list, in alphabetical order, ends abruptly at the end, suggesting that even more websites might have been caught if some arbitrary submission/page limit hadn't been met.

Most interesting of all was the removal of these URLs:



Yes, even Cyberlink's own home page, and several key sub-pages, were listed as "infringing" Cyberlink's own copyright! And amazingly enough, many of the URLs have already been removed by Google (check out this Google results page, for example, for Cyberlink's trial version downloads page).

Assuming guardlex.com was only acting on behalf of Cyberlink, did Cyberlink hire really guardlex.com to remove its own pages from Google?

Obviously, the answer is 'no'. What most likely happened is that guardlex.com ran some sort of automated script to try and detect pages that might have been providing pirated copies of PowerDVD, and their script was perhaps a little bit overzealous. And without a "white-list" of websites that should never have been listed (the white-list should have included, at the very least, cyberlink.com), collateral damage was unavoidable.

And this isn't uncommon on Google at all. Just a few weeks ago, popular tech website Techdirt had one of its anti-SOPA pages removed, apparently by a DMCA take-down specialist hired by an adult entertainment company (which also managed to take down the rights owner's own page - come on people, use white-lists for crying out loud, it's not that hard).

So who's to blame?

You can't really blame Cyberlink wanting to curb the piracy of its software (which I reviewed personally just a few weeks ago, and found it to be quite excellent indeed).

You can't really blame Google for taking action, and then asking questions later, since they can't even ask the right questions on behalf of those that had their pages removed from the search results, and if they don't take action, they become liable under the DMCA. Google has to trust that rights holder do the right thing and only submit legitimate take-down notices, but it appears this is all but a fantasy.

So is guardlex.com to blame? After all, they are the ones that compiled the list and the DMCA notice, and probably used a faulty automated script to generate the list of infringing URLs. But companies such as guardlex.com are fighting a losing battle against infringing content on the net, since there's so much out there, that without the use of automated scripts, there's just no way to help companies like Cyberlink clean up the search results. And if you use automated scripts or filters, chances are, a couple of legitimate websites will be caught. A human review of the URLs might help, but chances are, hundreds of thousands of URLs might have been found, and going through all of them would be a truly painstaking process.

The goal of the DMCA take-down regime is to "streamline" the take-down process, in other words, to by-pass due process. So it's no wonder there's "abuse" of the DMCA, whether it's intentional or unintentional as we would like to believe in our case. With service providers like Google being forced to be over sensitive on copyright issues, or be made liable, and website owners such as ourselves getting the wrong end of the stick and having to prove our innocence after being judged guilty, it shows exactly why "streamlining" is a very very bad idea.

Which is why legislation like SOPA and PIPA have to be opposed, because if passed, it would further "streamline" the take-down process, and instead of having just Google remove the links to websites, rights holders may get the right to have an entire website taken down, just for a few "bad" pages that may not even have been bad in the first place.

And that is very scary indeed.