The CommonsBlog


The DMCA, the Play Store, and You

The generally-reviled Digital Millennium Copyright Act (DMCA) has long been applied to apps out on the Android Market/Play Store. Sometimes, the complaints are legitimate, sometimes not. However, a recent thread on the android-developers Google Group suggests that there is may be a significant flaw in the system and how Google is handling it.

The DMCA uses a notice and counter-notice system. A notice causes someone like Google to block access to purportedly infringing material; the counter-notice requires the block to be revoked. However, section 512(g)(2)(C) of the DMCA provides a loophole for the party filing the notice:

unless [the service provider’s, e.g., Google’s] designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.

IOW, if the person filing the notice says that they are suing the purported infringer, access must be blocked again, with no actual provisions anywhere to undo the final block.

Also, much of the details of the implementation of the notice, counter-notice, and the filed-action claim are left up to the “service provider”, which is Google in the case of the Play Store.

According to the person who started the android-developers thread, Google received a DMCA notice, received the counter-notice, and then received a filed-action claim, thereby blocking the person’s apps. However, there is no evidence, from Google or anyone else, that the entity filing the notice actually has “filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network”.

This, alas, seems all too plausible.

Perhaps someday laws like this will be rescinded, or amended to put penalties on fraudulent filings. Or, perhaps a few class action suits to stop DMCA-based racketeering will help, courtesy of RICO laws and treble damages.

Until then, developers will be at risk of app distributors who fail to require adequate documentation of DMCA-related court filings, let alone fail to pass that documentation along to the affected party.

I have been advising, for nearly four years, that developers have multiple means of distribution. DMCA trolls make that all the more important, particularly for free apps. Putting all your eggs in the Play Store basket makes it that much easier for trolls to make an omelet. Whether you go with multiple “app stores” (e.g., also list in Amazon AppStore), multi-national self-distribution, or both, you make it that much more difficult for trolls to completely shut you down.

This is another reason for directing your marketing efforts to your own Web site, rather than straight to a Play Store listing. In case of trolls, you can point your Web site to other points of distribution.


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