Google sues people who “weaponized” DMCA to remove rivals’ search results

Google yesterday sued a group of people accused of weaponizing the Digital Millennium Copyright Act (DMCA) to get competitors' websites removed from search results. Over the past few years, the foreign defendants "created at least 65 Google accounts so they could submit thousands of fraudulent notices of copyright infringement against more than 117,000 third-party website URLs," said Google's lawsuit filed in US District Court for the Northern District of California. Another 500,000 URLs were also targeted, according to Google. "To date, Defendants' scheme has forced Google to investigate and respond to fraudulent takedown requests targeting more than 117,000 third-party website URLs, as well as takedown requests targeting more than half a million additional third-party URLs that are likely fraudulent based on preliminary investigation," the lawsuit said. Google filed the lawsuit against Nguyen Van Duc and Pham Van Thien, who are both said to live in Vietnam, and 20 defendants whose identities are unknown. Google alleged that the defendants "appear to be connected with websites selling printed t-shirts, and their unlawful conduct aims to remove competing third-party sellers from Google Search results." Google hopes to use the court system to deter further copyright-takedown abuse. But the lawsuit helps show how easy it is for fraudsters to game Google's system for responding to DMCA notices. "Defendants have weaponized copyright law's notice-and-takedown process and used it not for its intended purpose of expeditiously removing infringing content, but instead to have the legitimate content of their competitors removed based on false allegations," the lawsuit said. "Defendants' illegal, fraudulent scheme harms consumers, third-party businesses, and Google; stifles competition; and threatens to tarnish Google's trusted brand." Google said it removed a "significant" number of search results based on the fraudulent takedowns. "Unfortunately, to ensure compliance with the DMCA and in reliance on the information submitted in Defendants' takedown requests, Google's system removed a significant number of third-party website URLs targeted by Defendants for a period of time before Google and/or the websites' owners figured out what was going on and took appropriate steps to reinstate the URLs," Google said.

Defendants impersonated Elon Musk and Amazon

According to Google, some or all of the 20 Doe defendants "are individuals or entities working at the direction of and/or in active concert with Defendants Nguyen and Pham to prepare and submit thousands of fraudulent takedown requests to Google." In the defendants' most egregious series of takedown requests, spanning from August to December 2022, they allegedly "submitted fraudulent takedown requests targeting more than 35,000 website URLs from a Google customer that spends tens of millions of dollars per year on Search Ads." The customer's website traffic plunged during the 2022 holiday season, "resulting in over $5 million in revenue losses for that customer (and its sellers), with a corresponding loss to Google of between $2 and $3 million, before Google was able to reinstate all the targeted URLs," the lawsuit said. The defendants provided fake names in their takedown requests and "falsely purported to represent large companies (e.g., Amazon, Twitter, NBC News), sports teams (e.g., Philadelphia Eagles, Los Angeles Lakers, San Diego Padres), prominent individuals (e.g., Elon Musk, Taylor Swift, LeVar Burton, Kanye West), and famous bands (e.g., Blink 182)," the Google lawsuit said. For example, "Defendants falsely claimed to represent Elon Musk, alleging infringement of a t-shirt with a logo with the text 'Pharmacy Technician,'" the lawsuit said. Defendants falsely claimed to represent Amazon in a notice alleging "infringement of a t-shirt with the text 'In 2006 Beyonce Said To The Left, To The Left And My Political Compass Was Born,'" Google said. In other takedown notices, the defendants are accused of listing fake company names or providing "plainly disingenuous information in the company name field on the Copyright Webform, such as 'TESTTT' and 'this is funny game.'" "Defendants signed and submitted their thousands of fraudulent takedown requests containing false information under penalty of perjury," Google said.

“Make a fake DMCA for Compertier”

Though most of the defendants are unidentified, Google said that "Nguyen is associated with a Gmail account that posted a video describing the scheme on YouTube in November 2022 titled '2022 SEO 3 minutes to take top 1 google by Fake DMCA complaints.'" The video's description said, "Make a fake DMCA for Compertier and you will get top 1 google in the 3 minutes, DMCA Takedown Notices please search it on google." The tactic is used to "attack and fraudulently suppress competitors' websites and products in Google Search results, making consumers more likely to buy the same or similar products from the bad actors or their affiliates," Google said. "Such bad actors know that a fraudulent takedown request often has the same effect as a legitimate one; if a takedown request contains all the elements required under Section 512(c)(3)(A), it likely will trigger removal by Google." Search isn't the only Google product vulnerable to incorrect takedowns. In May 2023, the Google Play Store suspended an app that combines a web browser with a file manager simply because the app was capable of loading a piracy website that could also be loaded on any standard browser. Google initially rejected the app developer's appeal but finally reversed the takedown about three weeks later. In March 2022, game developer Bungie slammed YouTube's DMCA-takedown process in a lawsuit against defendants accused of sending fraudulent takedown notices against Destiny 2 videos. Bungie's lawsuit said the defendants "were able to do this because of a hole in YouTube's DMCA-process security, which allows any person to claim to be representing any rights holder in the world for purposes of issuing a DMCA takedown." Meanwhile, copyright holders have lobbied to make DMCA takedowns even easier. Sports leagues recently urged the US to require "instantaneous" takedowns of pirated livestreams.

DMCA relies on “honesty” of copyright claimants

Google said in its lawsuit that, under the DMCA, it is obligated to trust the assertions that copyright claimants make in takedown requests. "Neither the DMCA's notice-and-takedown provisions nor its conditions for safe-harbor protections require a service provider to proactively monitor its service or to affirmatively seek facts," Google wrote. "Rather, the DMCA relies on the honesty and good faith of copyright claimants, requiring them to support their claims with a statement under penalty of perjury and relying on the accuracy of the information they submit." The lawsuit further explains:

Recognizing that online service providers like Google are intermediaries and feasibly cannot (and should not) be required to make difficult determinations about the status of copyrights and user-posted content, the DMCA places the burden on copyright claimants asserting right—who are better positioned to know the facts relating to copyright ownership and infringement—to submit notifications of claimed infringement that contain certain specified elements and to attest to compliance with those requirements. In turn, the DMCA offers online service providers certain protections from copyright liability for content generated or posted by third-party users if, in addition to meeting other conditions, the service providers expeditiously remove or disable access to content identified in compliant notifications. Indeed, an online service provider like Google risks losing protection under the DMCA's safe-harbor provisions if it receives, but does not expeditiously act upon, a notification claiming infringement that complies with the statutory requirements, discussed below.

Google said it "reviews takedown requests related to Google Search results using a combination of human manual review and automation." Google uses the process to confirm "that a takedown request contains the elements required by the DMCA," but doesn't verify itself whether the URLs actually contain infringing content. The process "can result in the delisting of a significant portion or even the entire website of a third party from Google Search results unless and until that third party takes the appropriate steps to have its URLs reinstated," Google said. "As an online service provider that each year receives millions of takedown requests targeting more than 600 million URLs, Google often must rely—as the DMCA contemplates—on the accuracy of the statements submitted by copyright claimants." Google's lawsuit charges defendants with misrepresentation of copyright infringement, breach of contract, and intentional interference with contractual relations. Google seeks financial damages, court costs, and an injunction prohibiting the activity described in the lawsuit. The requested injunction would also prohibit defendants from "creating or attempting to create any Gmail accounts" and from "using any Google products or services to promote any of Defendants' websites or products."