Does Chilling Effects make a mockery of the DMCA?

Chilling Effects provides search engine for pirate linksGoogle removes pirate links, Chilling Effects reposts them

In the wake of Google’s move to allegedly downgrade search results linking to notorious pirate websites, it’s worth looking at another de facto search engine, closely linked to Google, that so far, seems impervious to calls for change. In many ways it renders Google’s removal of reported infringing links, moot. The “search engine” I’m referring to is none other than the Chilling Effects, a Google supported DCMA database operated by the Electronic Frontier Foundation’s (EFF) and a consortium of law clinics.

The database was supposedly created to provide transparency in the DMCA process but unfortunately it’s also known for being used as a de facto cudgel by service providers like Google to dissuade rights holders sending takedown notices.  After all, before one sends a takedown notice to Google one must acknowledge this warning:

Please note that a copy of each legal notice we receive is sent to a third-party which may publish and annotate it (with your personal information removed). As such, the content submitted in this form will be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication. You can see an example of such a publication athttp://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861. For products like Google Web Search, a link to your published notice will be displayed in Google’s search results in place of the removed content.

What’s even more troubling is the content of the database itself.  Yes, Google might reluctantly remove a pirate link from search results, but the infringing link lives on–conveniently available via Chilling Effects.   In  effect, the database acts a shadow site for infringing links removed from Google search.Using it is actually, in many ways, easier than using Google to search for free links to pirated movies and music.

This morning, using the Chilling Effects database search engine, I was able to quickly find active pirated streams for the recently released movie, Dracula Untold. All I had to do was type in the title, click my mouse, and choose a link from the DMCA notices that popped up in the results. I chose to use a DMCA notice sent to Google by NBC Universal that reported 762 infringing links.  See the graphic below to see how just how simple it was.

Chilling Effects provides easy search to find pirated movies online

Chilling Effects’ refusal to redact the actual infringing links included in DMCA notices has long been a source of contention. Now, however, it seems that some clever piracy entrepreneurs have taken it to a new, efficient extreme by creating a search engine that can leverage links reported via DMCA notices stored by Chilling Effects to provide users with access to pirated movies and music.

According to TorrentFreak a site called FileSoup offers both a search engine for (removed) torrent links, but has also developed new technology dubbed Necromancer that according to claims, will crawl the Chilling Effects database and Google’s own transparency report for DMCA notices it has received:

The operators of FileSoup also addressed indirect search engine takedowns. Every week rightsholders force Google to remove torrent listings from its search results. For this problem FileSoup says it has a solution, and a controversial one it is too.

The team behind the site say they have developed a web crawler designed to pull the details of content subjected to DMCA notices from two sources – Google’s Transparency Report and the Chilling Effects Clearing House. From here the links are brought back to life.

“We created a technology that crawls DMCA notices and resurrects the torrent webpage under a different URL so it can appear in search results again. It was rather complicated to sharpen it, but eventually it works pretty well. We will use it on FileSoup.com for all the websites we proxy,” FileSoup explain.

According to its website, Chilling Effects claims to be performing a public service:

Our goals are to educate the public, to facilitate research about the different kinds of complaints and requests for removal–both legitimate and questionable–that are being sent to Internet publishers and service providers, and to provide as much transparency as possible about the “ecology” of such notices, in terms of who is sending them and why, and to what effect.

While these goals may appear to be laudable, one has to ask, why can’t the organization (run by a consortium of law school “clinics” and the Google-funded Electronic Frontier Foundation) achieve its objective without also serving as backup source to find pirated content?

With Chilling Effects acting as a repository for pirate links, what options do rights holders have now? We dutifully send DMCA notices to Google to protect our work from thieves, only to find our efforts are really an exercise in futility thanks to Chilling Effects?  Are we supposed to send takedown notices to Chilling Effects to take down the very links we asked Google to remove in the first place?

In crafting the DMCA, is this what lawmakers had in mind when they carved out a “safe harbor” provision?  Does the Chilling Effects database really protect innovation online?  At the moment, the site’s chief role seems to be as a resource for those who want to rip off creators.  It seems that Chilling Effects is not working in the public’s interest, it’s working in pirate’s.

 

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