Google found itself accused of censorship last month, after it removed some pages from an anti-Scientology web site in response to a legal request made by the Church of Scientology.
Google was reacting to a complaint made under provisions of the US Digital Millennium Copyright Act, which requires search engines to remove links to pages if a copyright holder claims the pages infringe upon their rights.
In this case, the Church of Scientology sent Google a list of at least 126 web pages that it claimed infringed its copyright. Google promptly removed these pages, and an outcry ensued when it was discovered that one of them had been ranked fourth in a search for "scientology."
That page -- the home page of the anti-Scientology Xenu.net web site -- had apparently recently gained its high ranking in part due to efforts by some webloggers to "Google Bomb" the site for the term "scientology." This means that they actively worked to build links to the site's home page, using the word "scientology" in or around the links, to make the site appear popular for that term.
When the home page disappeared from the rankings, the remaining top results were for pro-Scientology web sites. Some allegations were also made that all of these sites were controlled by the Church of Scientology and boosted through the church's own link building tactics.
A day after the news spread, Google restored the home page of Xenu.net, saying it has been "inadvertently removed." The page regained its old ranking and still currently appears in the top results, in a search for "scientology."
The articles listed below provide ample coverage of the events I've summarized, so I'm going to concentrate on clarifying some misconceptions about what happened as well as provide some advice and observations on what other actions under the DMCA could mean for search engines and web searching.
First, it should be made very clear that the Xenu.net site itself was not removed from Google. Indeed, Google removed only 42 pages from the site, which were named in the complaint. A check I conducted showed that despite this removal, the site still had over 1,000 pages listed. As for the other pages on the list, these appear to be mirror pages of the 42 pages that were removed from the Xenu.net domain.
It was absolutely surprising to see that the Xenu.net home page was removed. Upon reviewing it, the page didn't appear to have anything on it that could be infringing someone's copyright. It is mainly a table of contents to other pages within the site.
The case no doubt raises fears that the DMCA will be abused to shut down access to web sites via Google and other search engines unfairly. However, before a general panic ensues, it should be noted that this is not the first DMCA action Google has taken. Indeed, the search engine said that it generally gets one or two DMCA complaints per week. I haven't surveyed other search engines about requests they receive, but I suspect they'd be about the same.
We've not heard complaints about those other pages being removed most likely because they are indeed situations where copyright is being infringed. Google described previous requests it has received as being "open and shut."
I've no doubt that if someone felt the DMCA was being used as a means to silence them via search engines before now, there would have been a general outcry, as we've seen in the Scientology case. Nevertheless, the potential for the DMCA to be abused is real. Because of this, one would hope that the law could be changed.
At present, anyone who swears in a statement to Google or any other search engine that a page is infringing their copyright can get that page pulled out of the search engine's index. Pretty scary stuff!
Of course, if your page gets pulled, you have the right to do a "counter-notification." In this, you send a statement attesting that you are not violating anyone's copyright. Having done this, your pages will be restored to the index.
There is one catch, however. In your statement, you also agree to the jurisdiction of a US federal court, should the original person decide to pursue a legal claim that you've violated copyright.
Again, pretty scary stuff. Or is it? For people in the United States, perhaps not. That's because even without the DMCA, someone could pursue a copyright infringement action against you. By sending in a counter-notification, you aren't necessarily exposing yourself to anything new. In fact, it appears that you at least help ensure that if someone is going to sue you for copyright infringement, it will happen in a court near you, rather than on the other person's turf.
That's assuming an action actually takes place, of course. Making a DMCA complaint is easy and needn't involve a lawyer. Actually proving copyright infringement is going to require a legal battle. A counter-notification may get you back in, and a further legal battle might never happen, because of the costs and difficulty involved.
The Xenu.net site has a special situation. Because it is located outside the United States, the webmaster of that site would have to agree when filing a counter-notification to the jurisdiction of a US court, specifically the jurisdiction of the court near Google (or near whatever other search engine might be involved). As you'll see from the articles below, the Xenu.net webmaster isn't willing to agree to those terms.
One solution to all this would be to drop the portion of the DMCA requiring those filing a counter-notification to agree to the jurisdiction of a US federal court. If that portion were gone, then the DMCA would provide some degree of help to those with legitimate complaints, especially for the "open and shut" type cases where a counter-notification is unlikely. However, by dropping the jurisdiction requirement, then anyone who had pages removed might feel more comfortable about filing a counter-notification.
Robin Gross, intellectual property attorney with the Electronic Frontier Foundation, goes a step further and thinks dropping the entire provision for page removal under the DMCA makes sense.
The provision was supposed to be a "safe harbor" for search engines, allowing them not to get sued if they linked to material that infringed someone's copyright. Gross says they'd still have protection without the DMCA, and it would also keep them from getting between two disputing parties.
"Google [and other search engines” would not automatically be held liable for linking to something. There would have to be additional elements shown about their knowledge and intention," Gross said. "Make the parties who actually have the disagreement litigate it and let's not put the burden on the [search engines”.
For Google's part, the search engine is reexamining how to handle DMCA complaints, including ways to better notify those whose content is removed. Gross said notification must be done, but Google said this is not required. Nevertheless, the search engine may now do it, as well as other disclosures.
"If you're a search engine, you're not required by the DMCA to do anything other than remove the links. But we at Google believe it is important to make the process more transparent and are looking into ways of informing both the webmaster and the public about the DMCA notices we receive," said spokesperson David Krane.
To its credit, Google now has extensive information on its web site about filing DMCA complaints and counter-notifying if you are the target of one. I've not surveyed the other search engines for this information, but I routinely scan help files and have never seen it provided by the others.
Google: Digital Millennium Copyright Act
Instructions on filing a notification or counter-notification under the DMCA. Also provides a link to the text of the law.
Google Asked to Delist Scientology Critics
Apparently a copy of the request filed on behalf of the Church of Scientology with Google, with commentary about the legalese involved. Trademarks are raised as an issue in this, though they are not covered within the DMCA's provisions.
DMCA Safe Harbor Provisions
Discusses how the DMCA applies to search engines.
DMCA covers AOL in e-book case
ZDNet, March 19, 2002
Example of where the DMCA worked to protect an ISP from a claim of copyright infringement.
Electronic Frontier Foundation
Xenu.net / Operation Clambake
Home page that was removed, as well as the site where other pages were taken down.
The Church of Scientology's Supremacy over the search term "Scientology" on Google
Ongoing page that tries to document how interlinking among Scientology web sites is supposed to be giving the Church of Scientology dominance on Google. I asked Google about the allegations. Google said it had investigated whether the Scientology sites were doing anything wrong and found nothing to be concerned with. Apparently, many of the domains listed in the ample charts on the site aren't adding that much to the PageRank scores of the sites listed, Google said.
Cult forces Google to remove critical links
ZDNet UK, March 21, 2002
Summarizes the initial situation, where Google removed some pages from Xenu.net in response to a DMCA complaint from the Church of Scientology.
How the Church of Scientology is forcing Google to censor its critics
Microcontent News, March 21, 2002
Covers how the pages came to be removed and examines allegations that Scientologists have worked to boost their own rankings on Google, as well as webloggers working to boost the anti-Scientology Xenu.net web site.
Explains that Google restored some pages of the Xenu.net site. Has the Church of Scientology's view that the material cited in its DMCA complaint involved more than what "fair use" would allow, along with criticism that the church uses copyright cases to silence critics.
Anti-Scientology site won't challenge Google removal
Reuters, March 25, 2002
The Norwegian webmaster of the Xenu.net web site said he wouldn't fight the DMCA action for fear of having to defend himself in the United States. Also contains allegations that Google was told the pages violated Scientology trademarks, as well as copyright -- but the Church of Scientology denies this.
Google Charged With Extending Censorship To Advertising Program
Microcontent News, March 26, 2002
People began buying ads at Google on behalf of the Xenu.net web site, but Google eventually disallowed these, saying they violated its terms and conditions. Those don't allow sites that advocate against individuals, groups or organizations to advertise on Google. Contrasts that anti-abortion ads are allowed, as are pro-Scientology ads.
Google Refuses Business from Gun and Knife Advertisers
Bowman's Brigade, March 2002
Google also refuses to allow advertising for gun-related web sites, which has some people -- dare I say it -- up in arms. A look at how a particular site's ads were pulled, with Google's responses for the action. Points out that while gun ads aren't allowed, pornography and sex ads are apparently OK.
Google Bombs Aren't So Scary
SearchEngineWatch, March 18, 2002
Google Bombs? A look at a new name for actively trying to influence Google through coordinated link building.
Search Engines & Legal Issues
Stories about other disputes involving search engines and the law can be found here.
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