It may not be widely-known but the big 3 search engines Google, Yahoo! and Bing have established procedures for removing natural search results on the basis of the DMCA. ThatÛªs good news for brand owners: if consumers canÛªt find infringing websites via the search engines, theyÛªre less likely to come across them at all.
Under Section 512(d)(3) of the DMCA, information location tools such as search engines and directories are not liable for infringement of copyright-protected materials they may link to as long as they follow the DMCAÛªs takedown procedures when they receive complaints from rights owners. These are essentially the same conditions that apply to ISPs who may unknowingly host websites containing infringing copyright content. However rather than identifying the infringing copyrighted material itself rights owners must instead identify the search result or directory page which links to a webpage containing the infringing material. For example this would require providing the keyword or keyword phrase used in a search or directory query plus the URL(s) which point to the infringing websites in the DMCA complaint.
Some search engines make it easier than others to submit this information to them. Google for example requires DMCA notices to be sent via fax or snail mail with a couple of exceptions; complaints of copyright infringement found on Blogger can be submitted via an online form and only brand owners with a prior agreement with Google may submit complaints via email. Both Yahoo! and Bing allow brand owners to submit complaints via email in addition to via fax and mail; however it appears that the first submission to Yahoo! and Bing must be submitted by mail or fax so that they have a legal copy of the brand ownerÛªs signature on file.
Once the DMCA notice has been received by the search engines they will “expeditiously remove the website listing from its search engine index although no timeframe is provided. Anecdotal information suggests that removal takes on average 10 days. Furthermore both Google and Bing will provide copies of the DMCA notice to the website owner in case they would like to file a counter notification whereas Yahoo! may do this at its discretion.
It is also important to note that both Google and Yahoo! may provide copies of the DMCA notice to Chillingeffects.org with personal identification information removed where it may be posted and annotated. (Apparently with GoogleÛªs Blogger all DMCA notices are forwarded to Chillingeffects.org.) Google goes one step further and indicates at the bottom of the relevant search engine page that certain listings have been removed due to copyright infringement and provides a link to Chillingeffects.com for consumers to view the actual DMCA notice.
Of course brand owners can always submit DMCA notices directly to ISPs hosting infringing websites to have the copyright content removed or to disable access to the websites. While this is also effective brand owners may find themselves sending multiple enforcements to multiple ISPs to cover all copyright infringement associated with their brands. By submitting DMCA notices to just the major search engines in contrast brand owners can effectively block access to 98% of infringing websites accessed through search. Submitting to Google alone gets you 78% of the way there. Of course the one drawback with sending DMCA notices to the search engines is that while links to the infringing content are removed the actual infringing content remains.
Perhaps the best approach is to take a one-two punch. By sending DMCA notices to both the major search engines and the ISPs hosting the infringing websites brand owners can practically guarantee that consumers will not be able to find or in the case of pirated music movies programming content software and games download the infringing content. This applies also to sites leveraging copyrighted product photos or images to sell counterfeit merchandise. Not a bad place to start for protecting a companyÛªs most valuable asset.
Links to Search EnginesÛª DMCA Policies: