Followup-To: alt.religion.scientology From: kady@wwwaif.net (kady@wwwaif.net)
Subject: How Ava Paquette Hoodwinked Google
Message-ID: <a7h3fc$2c0_002@news1.sympatico.ca>
Date: Sat, 23 Mar 2002 05:22:52 GMT

From www.digl-watch.com/copyright.htm:

Did Ava Paquette commit fraud when she smuggled trademark complaints inside her now infamous DMCA complaint to Google?

The recent furor over popular Internet search engine Google's decision to remove links to pages on a Norwegian website critical of Scientology have raised many questions over the liability of linking for Internet Service Providers, search engines and other entities granted specific limited indemnity under the Digital Millennium Copyright Act.

After the removal of the links to www.xenu.net became public knowledge, the company found itself on the defensive. Its decision to remove the links to the Xenu.net pages caused the company massive amounts of bad publicity after making Google and Scientology the subject of dozens of news stories, both online and in the non-net-based press.

In response to questions over why the links had been first removed, then hastily replaced after the onslaught of criticism, a spokesperson for Google indicated that the main page at www.xenu.net had been removed "inadvertently".

This attempt to make the deletion look like some sort of clerical error is unconvincing. In the DMCA complaint to Google, Scientology lawyer Ava Paquette repeatedly referred to the URL www.xenu.net in terms of it being a specific page -- and that it contained infringing material that was actionable under the DMCA.

Google, apparently, relied on the assumption that Ms. Paquette was acting in good faith, "under penalty of perjury", as is explicitly stated as part of a formal DMCA complaint.

It appears quite clear now that she was not.

Ms. Paquette, on behalf of her client, the Church of Scientology, seems to have deliberately mixed trademark and copyright claims, hoping -- as it turns out, correctly -- that Google would not realize that while alleged copyright violation could behoove the search engine to take action to remove links to the site, federal trademark infringement claims are entirely outside of the provisions of the DMCA.

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First, a little background on search engines, copyright violation and the DMCA --

Under the law, search engines, or "information retrieval tools", as they are referred to in the legislation, are protected from liability for contributory or direct infringement -- provided that they act "expeditiously" to remove links to the allegedly infringing copyrighted material after receiving notification under the process outlined by the Act:

(From SEC. 512. LIMITATIONS ON LIABILITY FOR copyright violation)

(d) INFORMATION LOCATION TOOLS - A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider--

`(1)(A) does not have actual knowledge that the material or activity is infringing;

`(B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

`(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

`(2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

`(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

Google, like other popular search engines Alta Vista and Lycos, even offers specific contact and process information to potential complainants on exactly how to submit such a complaint:

To file a notice of infringement with us, you must provide a written communication (by fax or regular mail, and not by email) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights. Accordingly, if you are not sure whether certain material of yours is protected by copyright laws, we suggest that you first contact an attorney.

To expedite our ability to process your request, please use the following format (including section numbers):

1. Identify in sufficient detail the copyrighted work that you believe has been infringed.

For example, "The copyrighted work at issue is the text that appears on www.google.com/ads."

2. Identify the material that you claim is infringing the copyrighted work listed in item #1 above.

(For more information on the DMCA notification and counter-notification procedure, visit Dr. David Touretzky's excellent DMCA complaint resource.)

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Now, back to Ms. Paquette's DMCA claim to Google.

In her complaint to Google, Paquette, on behalf of her client, the Religious Technology Centre, combined her DMCA complaint about Google's links to alleged copyright violations within the Xenu.net website with an entirely separate complaint related to alleged trademark infringements through metatags -- obfuscating the fact that such a claim lies outside of the DMCA process entirely.

Within her list of page locations of allegedly "infringing" materials, Ava Paquette also puts forward the argument that Xenu.net, and its subpages, also violate her client's trademarks by including the words "Scientology", "Hubbard", "Dianetics" and "NOTS" as metatags. Although this specific complaint has absolutely no place within a DMCA complaint, it allowed her to artfully combine the main page with the subpages in an unrelated context.

At no point within the complaint does Paquette specifically claim that the main page contains copyright violations. Since the DMCA does not cover trademark infringements, which is what Ava is claiming the home page is, one has to ask -- Why is the main page included within her list or urls at all?

The DMCA was established to deal exclusively with links to alleged copyright violations. As such, by deliberately mixing two separate complaints of infringement by xenu.net (copyright and trademark), Ava Paquette, acting as an agent for both the copyright and the trademark holders, was able to successfully trick Google into removing links to the main Xenu.net page -- DESPITE the fact that her complaints about metatag trademark infringement are not covered under the DMCA notification process.

There was, and is, no reason at all for Google to have removed links to that page from its database. It does not in any way indemnify the search engine from liability, since there is absolutely no reason - or, for that matter, precedent - to suggest that a search engine would be held liable for contributory infringement on the mere basis that it links to a page that contains an alleged trademark infringement.

By smuggling trademark into her DMCA complaint, however, Ava Paquette seems to have managed to fool Google into thinking it was somehow avoiding liability under the limited indemnity under the DMCA, when in fact, Google's links to the main Xenu.net page are not in any way covered by the notification process.

The attempt at deception becomes obvious upon analysis of the specific wording used in her complaint.

In her letter, Ava Paquette states:

Currently, Google is providing a link to a web page which contains literally hundreds of our clients' copyrighted works and federally registered trademarks. This web site is "www.xenu.net." This particular web site, "www.xenu.net", has been removed five times by well known internet service providers here in the United States for the precise copyright and trademark infringements of which I am notifying Google.

I have attached a Chart for you setting forth each of the infringements that are contained on the "www.xenu.net" web site and proof of our clients' ownership of the works and trademarks in question.

This particular web site owner has placed our clients' copyrighted works and federally registered trademarks on his web page without the authorization of our clients.

According, his actions are in violation of United States copyright law and I request Google either remove or disable access to the web site, "www.xenu.net".

The Search Query used is: Scientology Infringing Web Page: www.xenu.net

In the first sentence, she alleges that Google is providing a link to a "web page" which contains "literally hundreds" of allegedly infringing material, including both "copyrighted works" and "federally registered trademarks".

Obviously, the single page to which the link www.xenu.net directs a user does not, and cannot, contain "hundreds" of infringement of any kind - it is the doorway to a web site. And it is the web site, made up of hundreds of different web pages, that contains these "hundreds" of alleged infringements.

In the very next sentence, in fact, she switches terms, and refers to the "web site" itself at having been removed from a number of ISPs for these alleged infringements. She continues to refer to the object of her complaint as a "web site" for the purposes of the following sentence, and indicates that she has sent a chart, with the full URLS of the offending web page URLs.

But in the next sentence, she refers again to the "web page" when suggesting that the owner "has placed ... copyrighted works and federally registered trademarks on his web page" without the authorization of her clients.

Ava Paquette has now successfully dodged the requirement of including a specific complaint of copyright violation on the web page to which the URL www.xenu.net directs a user by couching the URL in her litany of alleged infringements contained in other pages.

She then goes on to demand that Google disable access to the web site "www.xenu.net", despite the fact that her only infringement claim that appears at that specific URL is of trademark use in metatags. In fact, she specifically states that the "Infringing Web Page" is "www.xenu.net", fully aware the alleged infringement to which she refers is not covered under the DMCA, as it relates to trademarks, and not copyrighted material. However, because of the ambiguous wording of the preceding paragraph, the deliberate combining of two different kinds of infringement claims and her misuse of the term "web page", Ava Paquette successfully bamboozles Google into believing that its links to www.xenu.net represent a potential liability, and the URL is removed from Google's database.

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This DMCA notification sent to Google was at best misleading. At worst, it could be seen as a deliberate misrepresentation of facts, and a fraud on Google itself, which relied on the material evidence presented to make a decision which caused considerable negative publicity and damage to its reputation.

It also indicates the extreme priority that Scientology places on its goal of flooding critical sites out of the top list of hits returned by a search for the word "Scientology" on Google, and the organization -- and Ms.

Paquette's -- apparent willingness to abuse the DMCA process to silence its critics without the risk of actually filing a suit over infringement that might ultimately prove unsuccessful.

It is up to search engines like Google, as well as ISPs and all other potential recipients of similarly misleading DMCAs to ensure that they examine carefully exactly what claims are being made, what action is required for the preservation of third party indemnity, and most importantly, what recourse can be taken against a copyright or trademark holder who would attempt to use invalid DMCA complaints as an indirect method of shutting down access to material it finds objectionable.

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