The Volokh Conspiracy
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Attempt to Get Google to Vanish My Article About a Forged Court Order
The anatomy of two unfounded deindexing requests.
Since late 2016, I've been blogging about various fraudulent or otherwise suspect attempts to try to get material deindexed by Google, or removed by hosting companies. Many companies will deindex or remove material if they see a court order (even one not addressed to them) that finds the material to be libelous or otherwise illegal (whether criminal, tortious, or infringing some property right). But that has led some people to submit, for instance, forged court orders, hoping that the recipients won't check them. Back in April 2017, I blogged about two such incidents (paywall-free version); one of the incidents had led to a federal forgery prosecution:
Don Lichterman, who runs some small independent music labels (Sunset Recordings and some related companies), was sued for copyright infringement (Abshier v. Sunset Recordings)—and got so upset about what he saw to be libelous statements about him made as a result of the lawsuit that he forged a libel takedown order to send to WordPress, which hosted the blog that contained the statements. Lichterman was caught and prosecuted for forgery (U.S. v. Lichterman), and eventually pleaded guilty.
Several days ago, I learned that someone has been trying to get Google to deindex that very post—in this instance, not using forgery or outright fraud, but just theories of illegality that make no sense.
[1.] First, an entry at the Lumen Database, which archives such deindexing requests (sent to Lumen by Google), reports:
NOTICE TYPE: DMCA …
ORIGINAL URLS:
[1.] https://www.washingtonpost.com/news/volokh-conspiracy/wp-content/uploads/sites/14/2017/04/LichtermanComplaint.pdf
ALLEGEDLY INFRINGING URLS:
[1.] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/04/21/two-past-prosecutions-for-forged-court-orders-in-libel-takedown-cases/?noredirect=on&utm_term=.e04d1a91d6dc
DESCRIPTION A group of trolls/rivals are continually targeting us and creating copied content to bully, defame, and threaten our business and staff. Also, there is same content has been posted on different sites. The respective links of the copied content are mentioned below.
That's a DMCA-based takedown request, apparently alleging that my article is somehow infringing on the Criminal Complaint that I had myself posted (and linked to from that article). The Criminal Complaint, of course, was drafted by the federal government, and is not protected by copyright; beyond that, my post hadn't even copied any material from the complaint. Regardless of how you read the takedown request, it's completely unfounded. Unsurprisingly, Google has not taken action based on it.
The request, by the way, was submitted under the name "Don Lichterman," but when I e-mailed Mr. Lichterman about this, he responded,
I do NOT have any idea what any of this means and I am NOT orchestrating it at all.
I know that my name being on certain court documents was an issue two years ago and I think there is an element that feels you circumvented it by adding a pdf.
But again, that's the corporate and legal people doing whatever ….
[2.] Then, two days later, someone submitted another takedown request (again, under the name "Don Lichterman"):
NOTICE TYPE: Court Order …
The attached supporting document was a redacted version of a 2016 court order in the U.S. v. Lichterman case, which says, in relevant part:
The Court has received the attached letter from the defendant. The letter states that certain documents should be filed under seal, but notes that the sentencing transcript is not filed under seal.
The Court was never asked to, and did not, file the sentencing transcript under seal. In any event, there was no basis to seal the sentencing transcript.
The Court did order the Pre-Sentence Report, and the Sentencing submissions fron the parties to the Court, to be filed under seal, and they were so filed.
The Court also told the parties to file their submissions in the record not under seal after redacting any personal identifying information.
The record reflects that the Government submission was so filed. Defense counsel should also ensure that its subnission is filed in the record not under seal, after redacting any personal identifying information.
There is no basis for any other action by the Court.
As best I can tell, the theory behind the deindexing request is that this order somehow requires that Mr. Lichterman's name be redacted from the Criminal Complaint, and that therefore my post, which links to a copy of the complaint, should be deindexed. But of course nothing in this order so requires: It appears that the court ordered that the presentence report remain sealed (as is normal with such reports), and required the removal of information from certain "sentencing submissions"—but it says nothing about the Criminal Complaint, which is a public document. (The Complaint was originally filed under seal, but was unsealed a few weeks later, as the prosecution began.)
Indeed, I just rechecked the file on PACER, the federal court record system, and the Criminal Complaint indeed remains an unredacted part of the public record. Again, unsurprisingly, Google hasn't taken action based on the deindexing request.
So it's actually pretty hard to dupe Google this way these days. But others might take these sort of deindexing requests, based on claims of copyright infringement and supposed sealing orders, seriously. I hope that this illustration can help warn people to view them much more skeptically—and if someone ever sends you (or has ever sent you) purported court orders requesting the removal of material hosted on your site, please let me know (at volokh at law.ucla.edu); I continue to be researching these sorts of practices.