Google piles into S92

Stepping into local political debate for the first time, the search giant makes a submission on the draft ISP code of practice – and it doesn’t hold back, citing a rash of bogus copyright claims it has received in the US.

Google’s pointed comments come in a submission – dated March 6 but just made public – to the Telecommunications Carriers’ Forum working party,  which the government has charged with creating an ISP code of practice to implement section 92a (s92) of the stalled Copyright Amendment (New Technologies) Act.

Remedy disproportionate to harm
In its opening salvo, the company says, "section 92A undermines the incredible social and economic benefits of the open and universally accessible internet, by providing for a remedy of account termination or disconnection that is disproportionate to the harm of copyright infringement online.”

It continues that s92 “puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement.”

Google's experience: majority of claims are bogus
This situation will place a “serious burden on ISPs,” says Google, as they attempt to weigh allegations received under s92.

Especially as in its own experience, most take-down notices come from those with dubious motivation.

It cites a recent independent study of the US Digital Millennium Copyright Act 1998 (US), which found that 57% of notices sent to Google for removal of material were sent by business targeting competitors and 37% of notices were not valid copyright claims.

ISPs would be overwhelmed
More, ISPs – charged with enforcing s92 under the act – are not equipped to sift the spurious accusation from the serious, says Google.

“Copyright law is often complex and context-sensitive, and only a court is qualified to adjudicate allegations of copyright infringement. In this context, the responsibility should not fall to ISPs to determine cases of infringement.”

Independent ajudicator needed
Echoing other TCF submissions and one of the TCF working party’s main aims in its current talks with rights holders, led by Rianz, Google would like to see an independent adjudicator appointed.

Google also critiques the draft code's approach to s92 compliance saying “There are numerous types of ISPs falling within the scope of the act, therefore a ‘one size fits all’ approach to section 92A compliance is impractical and could impose excessive cost and procedural requirements on ISPs. Google submits that the draft code should clarify and confirm that there may be a variety of ISP termination policies that meet the requirements of s92A."

Money for something
One a more meat-and-potatoes level, Google’s submission notes that the draft code makes mention of “processing fees” for claims, but does not detail their dollar value. This needs to be clarified, the company says.

DIY take-down
Google’s own content-sharing services, such as YouTube, have been the frequent target of take-down notices and lawsuits filed by rights holders. In its submission, the company details water-mark and tracking technologies it has introduced that help copyright holders trace where copies of their content appears, and to take it down illegal copies themselves.

The creative commons lobby will not be so thrilled with this section of Google's submission. But seeing content suddenly disappear from your website, as a copyright holder arbitrarily executes a take-down, beats a copyright holder asking your ISP to disconnect your account.

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