Guardlex – DMCA Takedown Notifications over hyperlinks to non-infringing content

As I am sure many of you know, stealing another individual or business’ copyrighted intellectual property is theft with damages up to $150,000 per incident.  To fight online piracy of intellectual property the Digital Millennium Copyright Act, or DMCA for short, was signed into law on October 28, 1998 by President Bill Clinton.  The DMCA outlines methods for reporting copyright infringement such as “DMCA Notifications” as well as what those methods must contain:

  1. 512(c)(3)(i)A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. (ii)Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  3. (iii)Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  4. (iv)Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  5. (v)A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  6. (vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In simple terms, the notification must contain a statement that the notification is made in good faith, by an authorized agent, that it clearly lists the infringing content and that the information in the notification is accurate, that the individual or company submitting the notification is the copyright owner of the copyright or an authorized agent, the location of the original works that are being infringed upon, and a physical or electronic signature.

A DMCA notification, to be valid, there has to be infringement of a copyright.  When there is not infringement, a DMCA Notification in and of itself is not valid.

We have received two DMCA notifications [so far] from Guardlex.com where the DMCA Notice is centered on a simple hyperlink on the site of a customer of ours.  The link in and of itself is not infringing, the page in which the link is contained is not infringing, and the destination of the link is not infringing.  Guardlex.com apparently feels that they can supersede the First Amendment Right to Free Speech by submitting invalid DMCA Notifications.

This is unfortunately likely to be a growing trend due to Google penalizing sites for overzealous Search Engine Optimization, or “SEO”.  Companies who wish to have their sites listed high in Search Engine Result Pages, or SERPS, hire “SEO Agencies” to improve their search ranking.  There are positive and organic “SEO” methods that can be conducted such as optimizing the layout of a site and usability, creating quality content that others will want to link to, etc and there are negative and inorganic “SEO” methods that should not be condoned.  Negative and inorganic “SEO” generally consists of obtaining backlinks from as many sites as possible, often web directories and blogs, and keyword stuffing among other methods.

The end result is that there are millions of companies out there that have hired “SEO Professionals” to optimize their SERPS without a clue as to what is actually being done, and now that the Google Panda update is live, we are going to see these companies fighting to have all of these negative SEO practices reversed.  Some companies are doing this the legal way by summating cease and desist letters or simply contacting the site administrators and requesting the links to be removed, but the downside is that the site operator has no obligation to comply with a cease and desist or a simple request.  When these companies are being told, “No,” they are then turning to the Digital Millennium Copyright Act to have the links removed.

Now the issue comes down to a simple question, “Is a link that does not point to infringing content, infringing?”  I believe the answer to this question to be a plain and simple, “No.”  Unfortunately these DMCA notifications demanding that the allegedly infringing links be removed are not valid as the links themselves are not infringement.  There is no way to demonstrate what work is being infringed upon as no intellectual property is being stolen or infringed upon.  This can be equated to me giving directions and a means of travel to the nearest Wal-Mart as infringing upon Wal-Mart.  Just because I give you the location, and an easy way to get there – does not mean that infringement has happened.

Here is an example, with personal and identifiable information redacted, of an invalid DMCA Notification:

Hello,

My name is Redacted Redacted, I work in the Anti Piracy Department of Redacted (http://www.Redacted.com), we provide anti-piracy and Intellectual Property protection services for Redacted company (http://redacted-site-hosted-elsewhere).

As such I am personally authorized to act on behalf of the owner of the aforementioned company.

It has come to our attention that your website (or website hosted by your company) contains links to the Redacted company website (http://redacted-site-hosted-elsewhere) which results in material financial loses to the company we represent.

This material financial loss is due to search engine penalties resulting from the links originating under your control.

I request you please remove from the following website http://redacted-site-hosted-with-us all links to http://redacted-site-hosted-elsewhere website as soon as possible. Please see the list of website pages in question:
http://redacted-site-hosted-with-us

In order to find those links, please do following:

1) If this is an online website directory. Use directory’s search system to look for http://redacted-site-hosted-elsewhere links.

2) If there are any hidden links in the source code of website. Open the website’s home page and view its source code. Search for http://redacted-site-hosted-elsewhere in the source code. This will reveal any hidden links.

It is our understanding; the links in question have not been authorized for use by our client, its agents, or the law.

Therefore, this letter is an official notification to effect removal of the detected infringement listed above.

I further declare under penalty of perjury that I am authorized to act on behalf of the trademark holder and that the information in this letter is accurate.

Please, remove all links to http://redacted-site-hosted-elsewhere website within the next 48 hours.

Please do not hesitate to contact us if you are at all unsure how to remove the links. We will be happy to assist you in any way to resolve this issue as soon as possible.

I ask, what is it going to take for this abuse of the Digital Millennium Copyright Act to end?  I also ask, what law is there that states that one site operator must obtain prior authorization from another site operator in order to hyperlink?  Do we really want to live in a world where creating a hyperlink to a good site or useful resource requires an attorney?

Disclaimer: I’m not an attorney, this is not legal advice, this post contains the facts to the best of my knowledge at the time of publication.  Should any information represented as fact be demonstrated to be inaccurate or non-factual I will be happy to make adjustments.  Any information not explicitly presented as a statement of fact is my opinion.

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6 responses to “Guardlex – DMCA Takedown Notifications over hyperlinks to non-infringing content

  1. A more direct analogy for hyperlinks is a bibliographic citation, which are unrestricted as a matter of law. I can take [Snerd et all, “DMCA causes cooties”, . Journal of irr. results, May 2035 pp 42-47] or jir.org/2035/may/dcma-cooties.html into a good research library, and read the article.

    Neither contains the actual content, so no infringement has occurred.

    Oh yea, in your wallmart analogy, a hyperlink is just like the street address of the walmart, it doesn’t even rise to the level of directions.

  2. You would seem you are right, with one minor thing (dont know about judges in the US, but here they are not exactly tech savvy), what if this company sees their own work/link as infringement / illegal content , then your client site would indeed link to something not right. I know its far fetched, but we have seen a case here (although the content on the other side of the link was clearly illegal in this case) where hyperlinks where forbidden.

  3. If a webmaster doesn’t respond to numerous explicit requests for link removal (especially a link the webmaster NEVER asked for or “approved”), what other means do they have to get the link removed? For the record, proper contact information should be found in the WHOIS account for the website, so if they’re in fact receiving the e-mails and simply choosing not to respond, that’s bad form.

    This is an issue that can hurt websites tremendously, and “damage” is being done in many cases, so it makes sense as a last resort, even if it doesn’t fit the traditional mold of infringement.

  4. I understand where you’re coming from, however, it’s not a copyright issue no matter how you look at it.

    Should a webmaster have recourse against somebody linking to their site and doing damage? Sure – they can file suit.

    If I’m not mistaken Google has a link disavow tool now that helps resolve the issue of unresponsive webmasters or those that refuse to remove damaging links.

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