Someone Trying to Vanish Image from My Post Discussing Attempt to Vanish Material from Google Results

Last week, Google received a Digital Millennium Copyright Act request, apparently aimed at deindexing (i.e., vanishing from Google search results) something that I had posted. The request, labeled as coming from "Concord Litho" stated,

This specific website has posted legal paperwork about me with private information which they copied off the internet without permission.

It listed as "original URLs" https://www.newsbreak.com/news/2154080759697/arrest-of-heidi-l-holt-for-tampering-with-public-records-or-information-and-forgery and https://reason.com/volokh/2021/02/03/n-h-prosecution-for-forgery-aimed-at-getting-newspaper-articles-and-government-record-vanished-from-google-search-results/. And it stated that the "allegedly infringing URL[]" was
https://d2eehagpk5cl65.cloudfront.net/img/q60/uploads/2021/02/HoltSubmission-768x476.jpg.

It's not clear to me if this was indeed just an attempt to deindex the JPG, which is an image of an apparently forged expungement order, or was also aimed (even if inartfully) at deindexing the articles that wrote about the arrest and prosecution that stemmed from that order (including one that I wrote). In any case, here's that article of mine, which gives some backstory for this new attempt:

If you send Google a court order that finds certain online material to be libelous, Google will consider "deindexing" that material—essentially making it disappear from Google search results. The order wouldn't legally bind Google (American court orders gotten against a particular defendant don't bind third parties who aren't in league with the defendant); but Google will often choose to act on it, on the theory that a court has determined that the material is false and defamatory. To my knowledge, Google doesn't do the same for expungement orders, but people sometimes submit those orders to Google in any event.

But any successful system breeds parasites—here, attempts to procure such court orders fraudulently, or even using forgery (see this forthcoming article). Last week, a criminal complaint was filed in New Hampshire against Heidi L. Holt as to one alleged forgery:

And here is the alleged forgery (though you can see it more clearly here):

The alleged forgery was submitted to Google with a deindexing request for these pages:

https://www.spokeo.com/Heidi-Holt/New-Hampshire
https://www.nh.gov/nhdoc/divisions/parole/documents/02_27_14.pdf
https://www.laconiadailysun.com/news/courts_cops/two-indicted-on-sex-assault-charges/article_7afa1f6a-19ac-11e9-9110-1f39a8443dd1.html [note that this article mentioned Holt only in passing as part of an arrest blotter, unrelated to the headline, and the newspaper has by now apparently removed her name]
https://www.fosters.com/article/20100428/GJNEWS_01/704289912?template=ampart
https://www.docketbird.com/find-federal-court-cases/bankruptcy/district-of-new-hampshire-bankruptcy/2019/10000-10499

Holt is charged with forgery and with tampering with public records. For similar cases from past years, see here, here, here, and here.

As you might gather, I don't think there was anything improper in my posting purported "legal paperwork" that mentioned Heidi Holt's name and the alleged forgery, nor that there was any need to get anyone's "permission" before copying the information. (The information came from the Lumen Database, which archives such deindexing requests.) Indeed, this is what news outlets do all the time: Post publicly accessible information about people who are accused of crimes, without asking anyone for permission.

Of course, the careful reader might ask: If the order is indeed a forgery, might I indeed be infringing the forger's copyright by posting it? (It's not clear that this is indeed the claim being made in the DMCA takedown request, but I thought it was worth addressing in any event.)

The answer is no. First, posting such information would be a fair use, since it's central to the news coverage of the story, and since there's no effect on any market for the apparent forgery.

But beyond that, in the words of Corbello v. Valli (9th Cir. 2020),

An author who holds their work out as nonfiction thus cannot later claim, in litigation, that aspects of the work were actually made up and so are entitled to full copyright protection….

Here, the text of the Work explicitly represents its account as historically accurate, not historical fiction. In the Work's early pages, the DeVito narrator describes the Work as the "complete and truthful chronicle of the Four Seasons." He promises not to allow "bitterness to taint the true story," and notes his "candor." Both Corbello's husband and she herself sent potential publishers cover letters emphasizing that the Work provided a behind-the-scenes factual look at the Band, promising "disclosure[ ]" of "the truth about" several events, including the "secret past that these performers successfully hid for almost three decades." Consistent with those promises of truthfulness, the Work reads as a straightforward historical account and is presented as an autobiography, with DeVito listed as a co-author. So the Work was expressly and repeatedly held out as a factual account.

Thus, someone can't frame something as an autobiography (chock full of facts that are not protectable by copyright) and then, when the purported facts from it are copied, sue claiming the work was actually fiction. Likewise, someone can't claim that a document is a factually accurate public record and then, when it's copied, require it to be taken down on the grounds that it's actually a forgery. (Again, that doesn't seem to be the claim being made here, but it's the only copyright-related claim that could be made.)

By the way, Google hasn't deindexed my article, nor has anyone removed my image, and I expect the DMCA request will continue to be ineffective.

Comments

[Bored Lawyer]

This specific website has posted legal paperwork about me with private information which they copied off the internet without permission.

This could be a law school exam question. How many contradictions and legal flaws can you identify in this letter.

[SRG]

"Thus, someone can't frame something as an autobiography (chock full of facts that are not protectable by copyright) and then, when the purported facts from it are copied, sue claiming the work was actually fiction."

There was an amusing example of this a few years ago when Dan Brown was sued and won in England in a copyright case over "The Holy Blood and Holy Grail" - the plaintiffs were caught in a bind because they had previously represented that what they were publishing was true, whereas a lot of it was just made-up bollocks which Dan Brown had ripped off.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I checked that link, https://reason.com/volokh/2021/02/03/n-h-prosecution-for-forgery-aimed-at-getting-newspaper-articles-and-government-record-vanished-from-google-search-results/, and it still is valid.

I'd check again and repeat the link, except multiple links trigger some Reason moderation which holds up the posts.

Perhaps someone else would also like to check that link and post it here.

[Kazinski]

If I forged an expungement order I'd want it taken off the internet too.

[Stephen Lathrop]

Kazinski, perhaps someone who knows who you are could arrange a meta-forgery, done on your behalf, in your name, against a scurrilous internet accusation, alleged by a publication abroad, referring to criminal conduct you never committed. It would be fun to watch as you tried to get that expunged, and EV tried to stop you.

[jdgalt1]

I mention this because a well-connected academic site like this one may actually be last to know what a lot of bloggers do: There are several "general archiving sites" that most bloggers use to preserve a copy of articles before posting them on the Internet.

For example, if I were going to post an article that quotes this one, I would typically go to archive.is (AKA the Wayback Machine) or archive.today and check if it has a copy of this article and then use that URL in my post in place of the original.

Just to have a working example you can view, I went ahead and did that here. The copy is at https://archive.ph/K1Eie .

The main reason bloggers use services like these is to protect their article from becoming invalidated because the owner of the referenced material subsequently changes or deletes it. However, this method also protects you against Google or other site hosts taking down the referenced material. Alternatively, if you try to follow someone else's link and you get a "404 not found" error, you can go to the archive site yourself and see if someone before you archived that material before it was taken down.

I recommend archive.today over the "Wayback Machine" because there have been some recent cases where the "Wayback Machine" owners have been talked into excluding some pages from the site.

[Rev. Arthur L. Kirkland]

'These guys can't vanish content at the Volokh Conspiracy -- only I can vanish content at the Volokh Conspiracy! (if I decide that content makes fun of conservatives too deftly, or disparages conservatives with mean words).'

It's the Artie Ray rule -- Prof. Volokh's playground, Prof. Volokh's rules. And hypocritical operators of ostensibly academic, libertarian, and free speech blogs have rights, too.

(Here is additional context.

[Stephen Lathrop]

Indeed, this is what news outlets do all the time: Post publicly accessible information about people who are accused of crimes, without asking anyone for permission.

Suggest EV's judgment about what news outlets do all the time would profit by modification—in light of what news outlets ought to do, and usually do, to inform their readers. First, does EV know of any genuine news outlet citation to this particular accusation? Second, could he please try to provide a coherent account explaining why a "news outlet" might consider this case newsworthy on any basis except as a legal meta-discussion, about a policy to keep every unproved accusation accessible on the internet.

I suggest there is an element of judgment which ought to separate what a news outlet chooses to do, and what it is legally permitted to do. Pretty obviously, "news outlets," do not publish the names of every person accused, but not-yet convicted, of a misdemeanor. That does not mean that some such cases might not be published by some news outlets, perhaps with extensive backstories detailing why the cases are exceptional, and thus warrant publication.

I can imagine a newsworthy frame for this particular case, as a vehicle to discuss whether society will be better-served if the internet becomes a kind of superpower Javert, pursuing petty accusations against everyone, and guarding those as world-wide public records, permanently accessible to everyone everywhere.

Of course I cannot support forgeries of public records. Still less does it seem a business model to forge public records ought to be supported. Especially if it centers on activity to cleanse the internet of damaging information published in the form of accusations against otherwise un-newsworthy individuals.

But on the other hand, doesn't a moment's thought bring to mind possibilities of shake-downs and blackmail inherent in any notion that such publications ought to burgeon, and be held sacrosanct? When shortly down the road random defamatory publications authored by anonymous AI bots become commonplace, will that be troublesome enough to warrant reflection, or must everything they publish remain on principle indelible and sacrosanct as well?

With a rule in place protecting every anonymous, unedited publication as a material contribution to the public record, and accessible to anyone with a keyboard and an internet connection, might there arise a wide-spread demand for a practical system—which is to say a system which does not require a court order—to accomplish an internet clean-up from time to time? Might it even be thinkable that prevention in advance of such publications, by using private editing to review them—and to judge their provenance and newsworthy character—would be best not only for, "news outlets," but also for the public life of the nation?

[ReaderY]

What’s interesting here is that all the statements made to Google are completely factually true. You indeed copied “legal paperwork” which had been “posted on the internet,” and you infact did so “without permission.”

As you note no permission is requires to copy criminal complaints filed in public bases. But the take-down notice to Google never actually says that anyone’s permission was required. It merely says no permission was given. And that’s completely true.