Print 27 comment(s) - last by lagomorpha.. on Oct 13 at 8:18 PM

Seemingly incompetent contractors lead to bizarre DMCA notices on Microsoft's behalf

In a fit of sloth, Microsoft Corp. (MSFT) has become among the companies to outsource/automate its Digital Millennium Copyright Act (DMCA) [PDF] (see Title 17 of the U.S. Code) takedown request process.  Unfortunately, its partners' codes appear to be badly broken and posting a whole host of false positives.

For those unfamiliar, the DMCA gives an apparatus where companies can send requests to search engine firms like Google Inc. (GOOG), demanding they remove certain search results that are believed to contain "stolen" intellectual property.  By blacklisting sites, companies can stop users from finding them and (in theory) halt the spread of the "stolen" work.

Such requests are often abused.  Google claims 1/3rd of takedown requests are not valid copyright claims and the three fifths target a competitor's webpage.

But in Microsoft's case the abuse appears to be accidental.

In fact Microsoft's third-party DMCA takedown contractor Marketly llc, asked Google to remove "" from its search results 11 times.  Microsoft's contractor also asked Google 335 times to take down its own homepage, on Microsoft's behalf.

In a testimonial on its homepage Marketly quotes Microsoft as pleased with its performance, quoting, "Marketly has engineered solutions that address today’s anti-piracy challenges, producing quantifiable results for Microsoft. We are pleased with Marketly’s responsiveness. They have been very easy to work with. – Online Piracy Senior Program Manager, Microsoft Corporation..."

Thanks to another partner -- LeakID, a "digital agency... founded by experts from the world of radio, television and internet" -- Microsoft also became the only party to request the takedown of U.S. Environmental Protection Agency and U.S. Department of Health and Human Service webpages.

Microsoft wants to take down the U.S. government -- or at least some of its webpages.
[Image Source: Microsoft]

Microsoft was one of only two copyright owners to try to take down a U.S. National Institutes of Health webpage, as well.

Those takedowns were among the high profile targets of a July 27, 2012 takedown request list on Google's clearinghouse of takedown information and chronicled by – a collaboration between the Electronic Frontier Foundation (EFF) and various law school professors.  Among other high profile targets of Microsoft's/leakid's July scattershot include a number of news sites, such as BBC News, CBS Corp. (CBS), Rotten TomatoesTechCrunch, Time Warner Inc.'s (TWXCNNScienceDirectRealClearPolitics, and The Huffington Post (among others).

Leakid has tried, on Microsoft's behalf, to take down 4 times without success.

DMCA cat
Microsoft and DMCA cat have a lot in common. [Image Source: Error Access Denied]

Microsoft's contractors have sent out nearly 5 million takedown requests to Google alone, so it's easy to note how such sloppy errors could occur, though you'd think the partners could be a bit smarter with their filtering.

Sadly Microsoft is not alone in its display of DMCA insanity.  Just ask convicted tax evader Gary Quintinsky who tried to take down the U.S. Internal Revenue Service's homepage.  That said, Microsoft and its "cronies" appear to be leading the way in bogus takedown requests.

Sources: Google [Transparency Report], Chilling Effects

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It's not really a laughing matter.
By dark matter on 10/8/2012 3:50:37 PM , Rating: 4
Those responsible for such errors should do jail time, period.

Freedom of speech is at stake, and we all must strive to protect it.

RE: It's not really a laughing matter.
By inighthawki on 10/8/2012 3:58:38 PM , Rating: 2
What are you talking about?

RE: It's not really a laughing matter.
By Solandri on 10/8/2012 5:01:48 PM , Rating: 5
While I don't know if jail time is appropriate, OP nailed the problem on the head. Currently there is no penalty for filing an incorrect or (eventually found to be) baseless DMCA takedown request.

You can be found guilty of perjury if you don't actually own the copyright, but you can always claim "Oh I thought his video on installing cat 6 cable violated the copyright on my video on tabby cats." As long as you own the copyright on the tabby cat video, you're fine.

Given a system where there's there's no penalty for overreaching copyright claims, it's hardly surprising that copyright owners put little to no effort into accuracy, and have adopted a "if in doubt, take it down, let the actual owners and the courts sort it out" approach. In such an environment, free speech is at risk as it's difficult to distinguish between taking down videos and stuff because your automated system thought it violated your copyright, versus because you disagreed with it.

RE: It's not really a laughing matter.
By inighthawki on 10/8/2012 9:32:27 PM , Rating: 2
Yes but there is a huge difference between purposely issuing such notices because you can and won't be penalized, and it being an accident due to an automated system. The former deserves a nice fine for sure, but the article is about their automated system issuing out bogus notices, not issuing them for the sake of doing so (which is *mentioned* in the article, but not what it's about)

RE: It's not really a laughing matter.
By boobo on 10/8/2012 10:47:57 PM , Rating: 5
Yet, it's conceivable that, if there were penalties for sending out bogus notices, even unintentionally, the automated system would have been tested much more thoroughly before being deployed.

RE: It's not really a laughing matter.
By inighthawki on 10/9/2012 12:25:06 AM , Rating: 2
While that's likely true, it doesn't mean it cannot happen. A bug from a corner case in the code that nobody thought was possible or nobody thought of. Happens all the time even with thorough testing, that's why many products ship and get patched later.

By dark matter on 10/9/2012 5:45:03 AM , Rating: 2
We are not talking about a product here.

But liberty.

Know the difference.

Learn the difference.

By darkhawk1980 on 10/9/2012 7:16:29 AM , Rating: 2
Just because it has classically worked like that (put it out there, patch it/fix it later), doesn't mean that it's the correct way of doing it. There's a reason that PC gaming has slowly been dying, and it sadly doesn't have to do with piracy or cost, it's the lack of well developed games.

Consider the fact that for each and every DMCA takedown, Google has to invest time and money into investigating every single one. In effect, it's a way for Microsoft (and others) to bleed Google dry, one drop at a time.

Personally, I think some kind of fine system should be in place for improper DMCA takedowns. The current system has provides all the power for the issuer of the takedown, and none for the entity being issued. Make it enough that it encourages companies to double check their data before issuing it. $10k per improper takedown? I don't know, but that would be a good start.

By tastyratz on 10/9/2012 10:50:09 AM , Rating: 2
free speech can and should not be "patched later"
If the system has a bug it doesn't matter. Bogus takedown attempts should be fined at the minimum, and companies with a high percentage of bogus attempts should be investigated for fraud and slander.

Fines from such attempts should be used towards supplementing legal assistance of those appealing requests.
to continue discouragement, fines should be progressive and multiply.

There should not be a "good enough" or "close enough" attitude on this matter. The internet is already at enough risk.

By foolsgambit11 on 10/9/2012 8:42:14 PM , Rating: 2
So you just have the software flag sites for verification by an actual person before the takedown notice is filed, instead of automatically sending takedown notices for any site it flags.

In fact, I think they should ban automated takedown notices completely. There should have to be a human verification prior to the notice, and their name should be on the takedown, so somebody is responsible for the repercussions of fraudulent notices.

By lagomorpha on 10/13/2012 8:18:15 PM , Rating: 2
there is a huge difference between purposely issuing such notices because you can and won't be penalized, and it being an accident due to an automated system

Maybe the problem is that people are allowed to use automated systems to issue these notices. If you construct an automated system and you have reason to believe it will result in the violation of laws then that doesn't make you less guilty.

By SilthDraeth on 10/9/2012 11:15:03 AM , Rating: 2
This isn't just a problem with digital media.

The court system in general can be abused.

I was sued and had to fight for years for trespassing and erecting structures on someone else's property, even though the even happened before I was born.

By NellyFromMA on 10/9/2012 8:52:07 AM , Rating: 4
No doubt that it should be taken seriously, but jail time? Idk on the scale of relativity I just don't think this is a heinous offense, just a stupid one. Jail time mando just sounds kind of extreme for first time violation of an arguably stupid practice in the first place.

By Kyuu on 10/8/2012 3:57:37 PM , Rating: 4
Abusing the DMCA and continued sloppiness like this should be an offense meriting substantial fines against the offender. That's the only way stupidity like this is going to stop. Otherwise, what's their incentive to fix their filtering or to stop targeting their competitors?

RE: Fines?
By Solandri on 10/8/2012 5:08:21 PM , Rating: 4
An idea I had was that when filing a DMCA notice you must post a bond sufficient to compensate the owner of the site/media being taken down for lost ad revenue and business for x weeks. If the takedown is not contested or a court decides in your favor, you get the bond back. If the takedown is determined to be wrong, the (now determined to be) victim gets the bond as compensation for the injury you wrongly caused him/her.

RE: Fines?
By Digimonkey on 10/8/2012 6:58:59 PM , Rating: 3
What about the smaller IP holders going up against bigger websites though? If they couldn't afford the bond they couldn't protect their IP.

RE: Fines?
By Xerstead on 10/8/2012 7:24:42 PM , Rating: 2
Indeed, there needs to be something to limit and deter false claims without restricting justice to the rich.
For example; There are many amature photographers who have had images 'stolen' for commercial use. If a bond were required I couldn't afford to cover (tens of)thousands of £/$ to protect one of my images being used.

RE: Fines?
By zebrax2 on 10/8/2012 7:37:37 PM , Rating: 3
How about a fix processing fee per request say 1$. That would probably trim down the request considerably.

RE: Fines?
By DiscoWade on 10/8/2012 7:54:47 PM , Rating: 2
What if the rules were tiered. Bigger business must pay the bond whereas small businesses might not need to pay anything. And there would need to be other rules to protect the little people.

RE: Fines?
By boobo on 10/8/2012 10:41:43 PM , Rating: 2
Then big businesses would hire small businesses to send their DMCA takedown requests for them. And if it became forbidden to send a DMCA request for someone else, then they'd sublicense the IP to a small business for a fixed amount of time.

By tim851 on 10/8/2012 4:51:07 PM , Rating: 2
I want to know what kind of punishment the "three fifths" that "target a competitor's webpage" have to expect.

I hope this is a crime that gets followed up by the DA or some other agency and not relegated to the realm of civil action, because when some a**hole gets my site off Google and thus off the face of the internet, I don't want to have to spend my own hard earned money on a lawyer just to teach them to stop doing this. I want the law to have my back.

RE: damages
By JasonMick on 10/8/2012 5:02:22 PM , Rating: 3
I want to know what kind of punishment the "three fifths" that "target a competitor's webpage" have to expect.

I hope this is a crime that gets followed up by the DA or some other agency and not relegated to the realm of civil action, because when some a**hole gets my site off Google and thus off the face of the internet, I don't want to have to spend my own hard earned money on a lawyer just to teach them to stop doing this. I want the law to have my back.
That's how things SHOULD work, but it's doubtful, as reading the statute (see link @ the start of the story) I see no real language criminalizing abuse. Congress has recently hemmed and hawed about such abuses from the RIAA, but I have yet to hear of sweeping charges for individuals/organizations that commit DMCA fraud.

Even if such policies were in place, it would be hard to charge many of the individuals or businesses. For example Microsoft's contractor LinkID appears to be based in France.

Is it illogical that a U.S. company can contract a French company to attack various websites and in doing so distance itself from any sort of accountability financially or criminally? Oh yes.

But that's the way things are increasingly going around these parts.

Welcome to the U.S. my friend.

RE: damages
By Argon18 on 10/10/2012 12:16:08 PM , Rating: 2
More like welcome to the dirty anti-competitive way that Microsoft does business.

By damianrobertjones on 10/8/2012 4:45:37 PM , Rating: 1
"Seemingly incompetent contractors lead to bizarre DMCA notices on Microsoft's behalf"

Jason, any chance of adding 'contractors' to the headline so it doesn't look so bad on MS?

RE: No
By Argon18 on 10/9/2012 6:23:02 PM , Rating: 3
LMAO, why? Are you a shareholder or something? Microsoft funded these immoral take-down requests. They need to take the heat for it. Call it for what it is. Don't sweep it under the rug to protect your fanboy fantasy.

By BugblatterIII on 10/8/2012 4:00:37 PM , Rating: 2
There's a lot of talk about the innocent sites that weren't taken down, but what about the innocent sites that were?

Took themselves down??
By Lord_Conrad on 10/8/2012 5:01:05 PM , Rating: 2
Doh! LMAO!!

“We do believe we have a moral responsibility to keep porn off the iPhone.” -- Steve Jobs

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