DMCA - Hosting company refuse to remove infringing image

[surfgatinho]

I recently sent a DMCA takedown notice to Google concerning several Blogspot websites (which Google own and host) that were using a photo of mine without permission.

They agreed to remove all of them except one giving the following explanation:

At this time, Google has decided not to take action. We encourage you to resolve any disputes directly with the individual who posted the content.

If you cannot reach an agreement and choose to pursue legal action against the individual who posted the content, and that action results in a judicial determination that the material is illegal or should be removed, please send us the court order seeking removal. In cases where the the individual who posted the content is anonymous, we may provide you with user information pursuant to a valid third party subpoena or other appropriate legal process against Google Inc.

Now, as far as I know the DMCA was brought in to protect hosting companies and the likes from their users actions, BUT provided they adhered to several conditions. These I believe are referred to as "safe harbor" as set out in the Online Copyright Infringement Liability Limitation Act.
In Section 512(c) of this act one of the criteria is given as "not having actual knowledge that it is hosting infringing material."

Obviously this is US law, but I assume the principle is very much the same in the UK.

Clearly this is not the case here.

In my limited knowledge of these things I would guess that Google are committing secondary copyright infringement. Is this correct?

Personally, I just want the image taking down. I assume I can threaten legal action in the UK if needs be?
Also, is it possible to pursue damages in such a case?

Chris

[AndyJ]

Hi surfgatinho,
I agree with everything you say. Once you have notified any hosting company of the presence of infringing material on their site, they will no longer be protected from liability under the safe harbor doctrine, if they do not act expeditiously to remove the infringing copy.
As you mention, a system virtually identical to the OCILLA provisions exists within the EU, thanks to the eCommerce Directive 2000/31 Article 14. This Directive was brought into UK law by the Electronic Commerce Regulations 2002 (SI 2002/2013) and so, yes you can take legal action against Google in the UK because they have a 'presence' here. The cause of action is as you have described, secondary infringment contrary to section 23 of the Copyright Designs and Patents Act 1988, in that they possess and are dealing in an infringing copy of your copyright work, in the course of business. The remedies available to you are an injunction to remove the work and not permit a further infringement of the same work, and damages based on the loss you have suffered, or an account of profits (ie the amount of profit through advertising revenue etc they have gained through the secondary infringement). Depending on the flagrancy of the service provider's actions or omissions or neglect, the court may award additional damages. Obtaining a court order requiring the service provider to hand over the details of the user who posted the infringing copy has nothing to do with copyright law, and can be obtained from a Master in the High Court ahead of any copyright claim. It is known as a Norwich Pharmacal order.
In reality Google would not end up in court, because they would have taken down the disputed work and negotiated a settlement the minute they got the Particulars of Claim form, if not well before then, possibly on being served with a Norwich Pharmacal Order. That is to say, the minute they know you mean business.

[surfgatinho]

Thanks Andy,

I thought I'd correctly understood the DMCA / safe harbor principle correctly, it just struck me that Google were taking a particularly strange position. I.e. admitting knowledge of two identical cases but refusing to act on the third.

I have a lot of trouble with Google DMCAs when trying to get infringing images removed from their search results.

I fill out their DMCA form in more detail than can possibly be expected, yet half the time they reject the applications merely stating "Not enough information provided".

Do you know if there an EU / UK body I can request to take action on this? I don't have the time to take this on myself, but it seems to me Google are clearly not carrying out their DMCA responsibilities.

Chris

[AndyJ]

Hi Chris,

Before trying to answer your actual query, I want to point out that in the last month Google reports receiving over 35 Million takedown requests. Obviously this is across all their platforms, globally, but it does represent over a million requests per day. Inevitably this means the responses are handled by computer algorithms rather than humans, so if the robot doesn't understand something you've written it's probable you will get a stupid reply. I am not sure at what level in the escalation process real humans become involved, but I suspect you have to persevere quite a bit before this happens. And while you are wiping the tear from your eye in sympathy with one of the richest corporations in the world, bear in mind that a very high percentage of the requests are sent by computers too and they are about as useless at their job as Google's bots are in sorting the wheat from the chaff. But when computers speak to each other they are on the same intellectual level and so computer-generated requests are likely to be handled better than human-generated ones.

Unfortunately I don't know of a specific organisation which is dedicated to tackling Google over this, although there are plenty of blogs and websites happy to have a pop (such as TorrentFreak). You would probably be best contacting a body like EPUK or similar, as your complaint is specifically about the misappropriation of your images. You may need to join first but it's free. At the very least they should know of a group lobbying on behalf of photographers in the same situation as you.

Good luck