copyright internet dmca
Legality of Proxy sites and DMCA
<p>I own a semi successful proxy website. It was created initially to assist co workers in the web hosting industry for troubleshooting propagation of new websites. </p>

<p>Recently I have been receiving DMCA complaints through Google. From what I see sometimes my proxy is used to access illegal content like a movie website and then that link is shared on forums or Facebook etc. Google caches these pages and companies like Sony finds them and sends a complaint. </p>

<p>My question is, am I required to some how hard code out these links every time? The links are not saved anywhere on my end, the series of characters in the url simply load the requested page. </p>

<p>I have been disputing the complaints simply because I do not want Google to blacklist my site which they could do if I received a lot of these complaints. </p>

<p>To be fair, if I received an email from the companies themselves I would make a system that blocks links, but with a DMCA I think blocking the link would imply wrongdoing and would cause the complaint to stick in Google's system.</p>

<p>Here is an example of the DMCA notices I get from Google:</p>

<blockquote>
  <p>Notice of DMCA removal from Google Search</p>
  
  <p>To: Webmaster of <strong>my site</strong></p>
  
  <p>Google has been notified, according to the terms of the Digital
  Millennium Copyright Act (DMCA), that some of the material found on
  your site allegedly infringes upon the copyrights of others. We’re in
  the process of removing the allegedly unlawful materials from Google
  Search results.</p>
  
  <p>The notice that we received, with any personally identifying
  information removed, may be found on the website of Chilling Effects,
  a third-party aggregator of legal complaint notices, at
  <strong>chillingeffects.org link full of links to illegal movies</strong></p>
  
  <p>Please note that it may take several weeks for the notice to be posted
  on the above page.</p>
  
  <p>What you can do next:</p>
  
  <p>File a Counter Notice If you feel that your sites or pages were
  mistakenly removed due to a DMCA request filed against you, Google can
  reinstate these materials into our search results upon receipt of a
  DMCA Counter Notification. Speak to a lawyer If you have legal
  questions about this notification, you may wish to speak to your own
  lawyer.</p>
</blockquote>

<p><em>I drafted this answer many days ago but did not complete it. My intention is to define red flag notice. However, I'm hitting Submit because I think it's a good question and hope this will inspire other answers</em>. </p>

<p>It seems like your immediate question, regarding the DCMA notices which Google is forwarding, is not a legal question. It is a question that can only be answered by Google and is dependent on their practices. Frankly though, it seems to me that Google search results might not be important based on the purpose of your proxy service. However perhaps your user base has evolved.</p>

<p>You are a service provider under 17 USC 512(k)(i). If you aren't we need to clear that up!</p>

<p>As for the copyright holders, you haven't received notice complying with 17 USC 512 (c)(3)(A)(i-iv). As such you don't have notice.</p>

<p>Even if these notices don't qualify then we argue about whether you have red flag notice - based on facts and circumstances. (See <em>Grokster</em>)</p>

<p>EDIT TO ADD:</p>

<p><a href="https://www.law.cornell.edu/uscode/text/17/512" rel="nofollow">17 U.S. Code § 512 - Limitations on liability relating to material online</a> is one of the sections created by the DMCA. It is sometimes referred to as the safe harbor. You can read about it on Wikipedia® page for the <a href="https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act" rel="nofollow">Online Copyright Infringement Liability Limitation Act</a>.</p>

<p>If you read that Wikipedia® page you will see a short <a href="https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Red_flags" rel="nofollow">section on Red Flags</a>. They say it as well as I could:  </p>

<blockquote>
  <p>[In addition to notice from a copyright holder, the second way] that an OSP can be put on notice that its system
  contains infringing material, for purposes of section 512(d), is
  referred to the "red flag" test. The "red flag" test stems from
  the language in the statute that requires that an OSP not be “aware of
  facts or circumstances from which infringing activity is apparent.”</p>
  
  <p>The "red flag" test contains both a subjective and an objective
  element. Subjectively, the OSP must have knowledge that the material
  resides on its system. Objectively, the "infringing activity would
  have been apparent to a reasonable person operating under the same or
  similar circumstances."</p>
</blockquote>

<p>The reason that notice is important is that the safe harbor provided is only available if you do not know that infringing is happening. Plaintiff's prove knowledge through the letter or through red flags.</p>

<p>I am glad that you asked about Grokster, because that was the wrong case! The case to look at is <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=QFAa6aKgMWuDCaRi8w2YMDGn%20Zwe2ehy0aJsxEsFVsZDN/sL018ounD/S0GsxwYyrYiaDnD3bFnGp5tnw3mRv141q1UePyP%20Nv2YcZweo0HPdNR9oK%20vkbsgJUkIf0QHp5NTTB3tcDAjHDsBCQiGBucF5TSIPvI19N8cDySbQAQ=" rel="nofollow">Viacom Int'l, Inc. v. Youtube</a>, Inc., 676 F.3d 19, (2nd Cir., 2012).</p>

<blockquote>
  <p>The difference between actual and red flag knowledge is thus not
  between specific and generalized knowledge, but instead between a
  subjective and an objective standard. In other words, the actual
  knowledge provision turns on whether the provider actually or
  “subjectively” knew of specific infringement, while the red flag
  provision turns on whether the provider was subjectively aware of
  facts that would have made the specific infringement “objectively”
  obvious to a reasonable person. The red flag provision, because it
  incorporates an objective standard, is not swallowed up by the actual
  knowledge provision under our construction of the § 512(c) safe
  harbor. Both provisions do independent work, and both apply only to
  specific instances of infringement.</p>
</blockquote>

<p>In other words, you lose your safe harbor protection if you know of facts and circumstances that would lead an ordinary person to know that infringement is happening.</p>

<p>So the question for you is - do the letters forwarded by Google mean that you have knowledge and are outside of the safe harbor? Well that's the question that lawyers fight about! In fact <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=FwhhLeU3mjlIXCyEbtJGtpsFwQHMcmJtTmCXEhYjf%20%20Ik6Lse8U%20v5Ww3877S/zozd8%20HtYqIRfrZvNfXAmRq37KjxjpSD4yghmrBayEfwNZfoQhlvcP%206RaCeU6oReXCJi34fnnwh/OFDn%20xPnS0JhYqiNVlw4FdYA292MFeY0=" rel="nofollow">Columbia Pictures Indus., Inc. v. Fung</a>, 710 F.3d 1020 (9th Cir., 2013) is all about that fight. If you read that case you will see that Fung was doing a bunch of shit that totally made it completely obvious that he was infringing. And he was earning money directly from it. He was screwed from the start.</p>

<p>Now again, this does not really help you with the google blacklist problem, but it should help you understand what you need to do as a service provider to not be complicit in copryright infringement.</p>

<p>You really should read the <em>Fung</em> case and 17 U.S.C. § 512 - they will go a long way to help you understand the analysis a court will apply.</p>

<p>EDIT</p>

<p>Regarding your legal exposure, I always assume that a cease and desist letter will precede a lawsuit. With that said, only you know how much infringing is coming across your server. Fung made his money directly from the infringement. He attracted website visitors specifically because of the infringement. He had emails and other documents proving this. </p>

<p>Diebold is interesting because they attempted to use copyright to control the spread of their emails. First the court said no commercial harm and no diminishment of value of the works. Then the court found that the stuff wasn't even subject to copyright. This is obviously not a typical case. But it sounds like you see yourself as OPG in this case. <strong>I don't see how you can become a plaintiff against bona fide copyright holders who follow the links as far as your server</strong>. As I understand it, you are a reasonable target of the the notices, that's the result of running the proxy.  However, I might be getting out of my technical depth here.</p>

<p>As I intimated earlier, you might need to seek out some strategic advice regarding dealing with Google and the specific steps you might take to stay in the right side of their enforcement. </p>
