Page 6 of the New York Post was the first media outlet to report that some of the celebrities whose photos were recently hacked may sue Google for not "expeditiously" removing links/images to/of their copyrighted nude photos. The lawyer, Marty Singer wrote a scathing letter to Google demanding it act "expeditiously" to remove the infringing content or face a lawsuit that may create $100+ million dollars in damages.
According to The New York Times, Marty Singer is "Guard Dog To The Stars (Legally Speaking)". In a profile from several years ago, Mr. Singer is quoted as saying, “We’re one of the few firms that sue; we don’t just send a letter.” While I admire Mr. Singer's work in protecting some of the most famous celebrities in the world, I wish him the best of luck and a very sympathetic court room if he follows through and sues Google for not responding "expeditiously" to his take down requests that are governed under the Digital Millennium Copyright Act.
In 2010, I wrote about the challenges copyright holders have under the Digital Millennium Copyright Act regarding protecting their content in a digital world. At that time I stated,
"According to the Senate Report about the DMCA (S. Rep. 105-190 at 44),
"[b]ecause the factual circumstances and technical parameters may vary
from case to case, it is not possible to identify a uniform time limit
for expeditious action." In my opinion, this indicates that a non-profit
may be held to a different less onerous standard than a commercial
entity. Since S. Rep 105-190 was created, technology has drastically
changed and I do not believe it was the intent of the Senate to provide
ISPs/OSPs wide latitude to remove infringing content at their leisure
when even a minor delay in removal may cause serious financial
repercussions to rights holders."
I further opined, "The DMCA's safe harbor provision is already tilted heavily in favor of
ISPs/OSPs. Therefore, to level the playing field it is time for either
Congress or the courts to declare that under the DMCA commercial
entities have one business day to remove infringing content." Whether one business day is still an "expeditious" enough standard is debatable; however, at that time I thought it was a good starting point to begin the discussion.
Since 2010, neither Congress nor the courts have created a universal definition of the term "expeditiously". Google has one of the most technologically advanced data mining machines in the world so it most likely can do a better job of removing copyrighted nude photos and/or links to them from appearing on its platforms.
Unfortunately, removing content from the Internet is a lot like "whack a mole". When it has been removed from one website there is a chance it may appear on another platform. Due to the recent Right To Be Forgotten Ruling in Europe, Mr. Singer may have better luck if any of his clients are European Union citizens; however, this right appears to only apply to Google's European products/services and it is unclear exactly how this new right will be implemented.
From a legal perspective, does Google have a strong legal defense under the DMCA's safe harbor? In the 2013 Capital Records v. Vimeo case, a New York federal district court ruled that it was "expeditious" to take three and a half weeks to remove 170 infringing videos. While this ruling only applies to the Southern District of New York, it may provide persuasive opinion for other jurisdictions.
Here, it appears a couple hundred copyrighted photos may have been part of the take down requests and the time frame appears to be a couple of weeks. Since there is not a definitive legal standard regarding how "expeditiously" a digital platform must act to remove infringing content it appears Google may qualify for "Safe Harbor" protection. If Google is eventually sued for allegedly violating the DMCA regarding this matter, it should be able to mount a vigorous and most likely successful defense.
Copyright 2014 by Shear Law, LLC All rights reserved.
