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It may not be widely-known but the big 3 search engines—Google, Yahoo! and Bing—have established procedures for removing natural search results on the basis of the Digital Millennium Copyright Act (DMCA). That's good news for brand owners: if consumers can't find infringing websites via the search engines, they're less likely to come across them at all.

Under Section 512(d)(3) of the DMCA, "information location tools" such as search engines and directories are not liable for infringement of copyright-protected materials they may link to, as long as they follow the DMCA's takedown procedures when they receive complaints from rights owners. These are essentially the same conditions that apply to ISPs who may unknowingly host websites containing infringing copyright content. However, rather than identifying the infringing copyrighted material itself, rights owners must instead identify the search result or directory page which links to a webpage containing the infringing material. For example, this would require providing the keyword or keyword phrase used in a search or directory query, plus the URL(s) which point to the infringing websites in the DMCA complaint.

Some search engines make it easier than others to submit this information to them. Google, for example, requires DMCA notices to be sent via fax or snail mail, with a couple of exceptions; complaints of copyright infringement found on Blogger can be submitted via an online form, and only brand owners with a prior agreement with Google may submit complaints via email. Both Yahoo! and Bing allow brand owners to submit complaints via email in addition to via fax and mail; however, it appears that the first submission to Yahoo! and Bing must be submitted by mail or fax so that they have a legal copy of the brand owner's signature on file.

Once the DMCA notice has been received by the search engines, they will "expeditiously" remove the website listing from its search engine index, although no timeframe is provided. Anecdotal information suggests that removal takes on average 10 days. Furthermore, both Google and Bing will provide copies of the DMCA notice to the website owner in case they would like to file a counter notification, whereas Yahoo! may do this at its discretion.

It is also important to note that both Google and Yahoo! may provide copies of the DMCA notice to Chillingeffects.org, with personal identification information removed, where it may be posted and annotated. (Apparently, with Google's Blogger, all DMCA notices are forwarded to Chillingeffects.org.) Google goes one step further and indicates at the bottom of the relevant search engine page that certain listings have been removed due to copyright infringement and provides a link to Chillingeffects.com for consumers to view the actual DMCA notice.

Of course, brand owners can always submit DMCA notices directly to ISPs hosting infringing websites to have the copyright content removed or to disable access to the websites. While this is also effective, brand owners may find themselves sending multiple enforcements to multiple ISPs to cover all copyright infringement associated with their brands. By submitting DMCA notices to just the major search engines, in contrast, brand owners can effectively block access to 98% of infringing websites accessed through search. Submitting to Google alone gets you 78% of the way there. Of course, the one drawback with sending DMCA notices to the search engines is that while links to the infringing content are removed, the actual infringing content remains.

Perhaps the best approach is to take a one-two punch. By sending DMCA notices to both the major search engines and the ISPs hosting the infringing websites, brand owners can practically guarantee that consumers will not be able to find or—in the case of pirated music, movies, programming content, software and games—download the infringing content. This applies also to sites leveraging copyrighted product photos or images to sell counterfeit merchandise. Not a bad place to start for protecting a company's most valuable asset.

Links to Search Engines' DMCA Policies: Google, Yahoo!, and Bing

By Mary Roach, Director of Product Marketing, MarkMonitor. Mary Roach also contributes to the MarkMonitor weblog located here.

Related topics: Law