You’re excused if the two phrases in the title of the post mean nothing to you  and appear unconnected. Hopefully, I can add some clarity.

The majority of the information I have comes from a series of internet sources. I am aware it has made the popular press here in Australia, as the image on the right will confirm.

For many readers, these issues will be of little interest other than in passing. In theory, it should only impact those sites that host content subject to copyright for which they do not hold permission. Reality isn’t that simple, but I will return to that aspect later. For now, what is the Emmanual Update and what are Pirate Penalties?

Search Engine Land used the name “Emmanual Update” for an update to the Google algorithm that will change rankings based on the number of DMCA^* “takedown” requests Google receives  relating to a website.

This update represents another ranking factor in the already complex ranking algorithm of Google. Clearly, the action targets those sites hosting pirated material - TV shows, music & movies - for illegal download.

The early indication is that it will take many breaches to trigger the penalty. But this is by no means certain.

Without questioning the rights of legitimate copyright holders to be protected, I have a fundamental concern with the takedown requests, and now the apparent legitimacy given to them by Google. The person lodging a complaint does not have to prove a breach or that they are the copyright holders to lodge a request.

Many hosting companies, either because they are unable or unwilling to test even the basic validity of the claim, accept the request at face value. They put the burden of proof on the accused and expect the material to be withdrawn within a short period. If the site does not comply, most will suspend the hosting account. I have even seen a case where the whole site was temporarily suspended until the material was withdrawn.

(If you are really interested in this subject, consider the Safe Harbour provisions of the the DMCA^* and the European equivalent, DPD^*. Against this background, is it any wonder hosting companies err on the side of caution to the possible detriment of their customers?)

I am not a lawyer, but this reeks of guilty until proven innocent and the backwards logic of testing for witches (throw them in a river, if they drown they are innocent and guilty if they survive).

While there is capacity in the system to lodge a defence against these claims, the material must be withdrawn while the issue is resolved. Most of those sites accused don’t have the capacity to mount a defense. These claims can cross international boundaries. I am aware of at least one claim with multi-national connections. It was lodged with the US hosting company of an Australian entity, by an Indian based agent of an English organisation.

How deep are your pockets? The winners in these cases, by far, are those lodging the claims, as most won’t be contested even when no breach has occurred, and the lawyers, in the small number of cases where a defence is mounted. Those accused in this way rarely win.

Given the structure of this system, what is the chance bogus claims are lodged? A bogus claim even if later overturned, has the short-term effect of temporarily removing material that may be crucial to the legitimate activities of the site.

There is also some grumblings about Google’s likely handling of claims against YouTube, but I will leave that topic for another time. For the conspiracy theorists, there is some reading in the related articles if you would like to explore this apparent privileged treatment.

Related articles

• The Emanuel Update: Google Will Penalize Sites Repeatedly Accused Of Copyright Infringement
• Google to Label YouTube Competitors as ‘Spam’
• How YouTube Will Escape Google’s New Pirate Penalty
• The Emanuel Update: Google Will Penalize Sites Repeatedly Accused Of Copyright Infringement

^*Digital Millennium Copyright Act

^*Data Protection Directive