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Wednesday, January 8, 2014

Google's Apparent Case-By-Case Approach to Copyright Take-Down Requests

The Des Moines Register reports on a lawsuit that ARAG North America has filed against Google as a result of a blogger's use of a picture of one of ARAG's executives:

ARAG North America, which provides legal insurance, sued the Internet giant last month in a case legal experts say exhibits an increasingly common clash over bloggers who post images online without permission. 
The lawsuit concerns a head-and-shoulders photo of Ann Dieleman, a senior vice president and chief marketing officer with ARAG. The photo was published in 2009 on, a forum where users post photos of executives with satirical comments.
The register reports that the picture remains posted on the blog (I have confirmed this as well).  The blog itself is interesting, with its "voice" coming across as a strange combination of a snide Reddit commenter with the character "Rorschach" from Watchmen.  For example:

Suit matched to hair. Literal interpretation of the white collar worker. Great moustache. Glasses. Bad tie. Skin that was last exposed to sunlight on the Sunday afternoon prior to starting the job in April of 1991.
But the blog is not what makes this story interesting -- it is the dispute between ARAG and Google, which owns Blogger, the company that hosts the SexyExecs blog (as well as this blog).  The Register explains the progression of events that have led to the lawsuit:

The legal battle started in September 2012, when Trout sent Google a letter accusing the company of copyright infringement. Google declined to remove the photo without proof that ARAG held the copyright. 
Trout responded by saying ARAG owned the copyright of the photo and requesting Google to remove it. 
In an email, Google again declined. 
. . . 
Jeff Hermes, director of Harvard University’s Digital Media Law Project, said the lawsuit shows Google is willing to look at copyright infringement accusations on a case-by-case basis. 
“Google is apparently not rubber-stamping all of these as they come through,” he said. 
. . . 
Hermes said the company has little financial incentive to fight for one photo on one blog. But the company, he said, might see a competitive advantage in protecting their users’ right to post images online.
It is interesting to see Google asserting itself against claims of copyright violations on blogs in cases like this.  The article notes that Google received 25 million take-down requests in December 2013.  One might expect a website faced with so many take-down requests to automatically comply with most or all of them in an effort to avoid liability.  Indeed, expectations like these form the rationale for several important statutes, including section 230 of the Communications Decency Act.

But here, Google, seems to be taking a case-by-case approach, rather than automatically complying with ARAG's take-down request.  And Google is doing this for a blog that has been inactive since 2011.  This case makes me wonder how often Google actively resists take-down requests, rather than automatically removing content.

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