German Court Bans Google From Linking To Lumen Database Showing Takedown Notices

Another day, another bad copyright ruling out of Germany. What's up with Germany these days? Specifically, the court has barred Google from linking to the Lumen Database when it takes down content. This is bad on a variety of levels, but first some background: Lumen Database is what was formerly known as "Chilling Effects" -- a site to catalog DMCA and other kinds of takedowns (though most people focus on the DMCA ones). It has been tremendously useful over the years in all sorts of ways, especially concerning academic research into how the DMCA takedown process is actually working. It's often how we discover examples of takedown abuse.

However, for many years, the legacy entertainment industry has complained (and complained and complained) about the very existence of the Lumen Database. Their main (stated) reasoning is that it creates a database of links to infringing material -- though I'm sure the fact that it's been so useful in highlighting all of the abuse of the DMCA takedown process is a secondary (though less publicly admitted) reason for why they dislike it so much. The problem with this complaint is that there is literally zero evidence that Lumen Database is regularly used as a source for infringing materials. If you ask people who focus on this stuff, it's just not a site that comes up. Because it's really not particularly useful for that kind of thing. Either way, Lumen Database has made some efforts to reduce the visibility of links in its database in an attempt to mollify complainers.

But the anger ratcheted up even more once Google attempted to provide more transparency into the takedowns it receives and how it deals with them. Among the things Google has done is forward all of its takedown notices to the Lumen Database, release a special transparency report focused specifically on copyright takedowns (and letting people search through its database), and finally also then linking to the takedowns in the Lumen Database when it does remove content. The reasoning for this is completely obvious and sensible. If content is being removed, it is appropriate to learn why. The takedown notice provides those details and also helps people make sure that when the takedown notices are abused for censorship, it is more quickly discovered and fixed.

However, again, this linking from Google to Lumen Database has completely freaked out a segment of the copyright maximalist community -- as they insist that people are doing searches, failing to find what they want, clicking the little link to Lumen and then skimming the takedown letter to find the URLs where the content they want supposedly exists. Again, there is little evidence that this is happening at all, let alone on a wide scale. For what it's worth, it does appear that when takedowns target Google, many also target the original source, which takes down the original as well, meaning there's nothing at the links anyway.

Apparently, none of this much mattered to the court. It bought the silly line how this might be used for finding infringing content and ran with it. This particular case doesn't even involve copyright infringement, but a takedown demand from a company that was upset about the way the Google snippet appeared -- which already sounds pretty crazy. From the IP Kitten site linked above:

The claimant in this case is a German company. When entering the combination of the company‘s name and the words ‘suspected fraud’ (original: ‘Betrugsverdacht’) in a Google search, the results would show four snippets containing the company’s name and the words ‘suspected fraud, public prosecutor is investigating’ as news headlines. However, the company was not being investigated for fraud (§ 263 StGB - German criminal code), but for investment fraud (§ 264a StGB). While both crimes are fraud-related, the legal requirements for investment fraud are very different from regular fraud. In particular, in case of investment fraud, no deception needs to have taken place (yet) and no damage needs to have occurred.

Thus, the statement that the company was being investigated because of fraud was false. Under German law, making such a false claim about a company could infringe the company‘s right of publicity. This led to a first court case between the parties, in which Google was ordered by the regional court of Munich (case no. 25 O 3214/17) to stop showing the website(s) with the infringing text in its search results.

Again, think through the circumstances here. (1) This wasn't when you searched on the company name, but only the company name plus "suspected fraud." (2) The company was being investigated for investment fraud, but apparently a different kind of fraud than just plain old "fraud" and somehow that was a problem? (3) Anyone who did this search could then do their own research to figure out the situation. Google shouldn't be responsible for people failing to read or research the details. But, no, the court ordered Google to remove. This seems like fairly blatant censorship of information that could be quite useful to the public.

Either way, after Google lost the original case, it removed the snippet and forwarded the details to Lumen, as it does with all takedown demands. And the company at issue went back to court to complain about this fairly basic level of necessary transparency. And while Google won the first round, on appeal, the court went the other way. Back to IP Kitten:

the Higher Regional Court found that Google’s main function that needs to be considered here is not the provision of a (direct) hyperlink to the infringing statement, but rather the provision of a search function that enables users to find the (otherwise hard to find) website. By presenting its users an explanation about the deleted search result, combined with a hyperlink to the Lumen website where the deleted search result could be clicked, Google (still) enabled users to find and read the infringing statements, even after being ordered by a court to discontinue doing so. The court found that it made no difference whether one or two clicks are needed to get to the result.

The author at IP Kitten thinks this result makes sense, but I can't see how it makes any amount of sense at all. Beyond the problems discussed above, the issue here is again about a just slightly misleading claim made by a third party who has nothing to do with this lawsuit. If the company has an issue, it should be with that party, and not Google, who is just one tool to find stuff online, and which already required a convoluted search to find. The fact that, in an effort to be transparent, a user might have to jump through a bunch of additional steps just to find an article isn't a problem. Again, people should do their own research. Google shouldn't be responsible for someone failing to do that.

But, it appears, in Germany, Google now is responsible for making sure that you don't read badly written articles.

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