Web Takedown Notices: Punish the Monkey

 
 
By David Strom  |  Posted 2008-03-05
 
 
 

Here is one letter that you don't want to receive: "You are currently hosting website content that contains our proprietary information. We demand that you take down the posting immediately."

I guess I am fortunate that I have only received one takedown notice in all my years of building and running various publication Web sites.

This past month we've seen a lot of judges and lawyering up to try to remove various Web content -- ranging from a video of teens brawling in upstate New York to documents from a Swiss bank that supposedly show offshore money laundering, to even a game of Scrabble that is played on Facebook. It is sad to see, ineffective, and a waste of everyone's time.

Almost always a takedown notice is a mistake, because all it does is focus attention on the about-to-be-banned content and motivate others to post it elsewhere. We even have a term for this, called "The Streisand Effect."

Techdirt's Mike Masnick coined the term on his popular technology blog after the actress Barbra Streisand's 2003 lawsuit seeking to remove satellite photos taken of her Malibu house. Those photos were part of a series of thousands of pictures that were taken along the entire California coastline, so imagine even if you knew Streisand's street address it would be somewhat of an effort to try to locate the specific picture.

As a result of the attention from the lawsuit, her photo is now easily accessible and notorious. So the effect of the legal action just promotes the accessibility of the content that the lawyers are trying to ban.

The courtroom antics of last month around the Swiss bank brought the notion of takedowns to a new level of ridiculousness. Here, we have lawyers in a California courtroom trying to pull the plug on an entire Web site (Wikileaks.org) because of one posting of the site that was subject to the legal wrangling. This was more than just a takedown notice, it was to terminate the domain entirely, and remove any DNS records pointing to the site.

The bank's lawyers went this route because the site's registrar was a US corporation, unlike the site, its staff and its hosting provider who were all located in various other countries. Eventually, the courts reversed themselves, realizing that they didn't have jurisdiction. By then, multiple mirror sites were created with the banned content. And the court themselves realized this, from their ruling:

"The press generated by this Court’s action increased public attention to the fact that such information was readily accessible online. The Court is not convinced that Plaintiffs have made an adequate showing that any restraining injunction in this case would serve its intended purpose."

In my own case, the takedown was related to a speech that was given at a conference, and our article had copies of the presentation slides that were removed by the conference organizers at the request of the vendors involved. The lawyers claimed the content was proprietary and the presenter was "not authorized to distribute it" at the conference. Again, by the time we took the information off our site, it had been picked up elsewhere around the Internet.

It is time to stop punishing the monkey, and realize that there are better solutions than takedowns. The term comes from the wonderful lyrics of guitarist Mark Knopfler. If you haven't heard the song, it is worth giving a listen. Here are some of the lyrics:

You've been talking to a lawyer

Are you gonna pretend

That you and your employer

Are still the best of friends?

Somebody's going to take the fall

There's your quid pro quo

The boss has hung you out to dry

And it looks as though

They'll punish the monkey

And let the organ grinder go