Last night, we received a tip that the Play Store listing for AirDroid, a popular app that allows users to see notifications, respond to messages, and manage content from their Android devices on a desktop, had been removed from the Play Store. The listing was directing to Google's infamous "Not Found" page.
We reached out to the AirDroid team who, at the time, were still trying to figure out what had happened. As it turns out, Google had removed the listing after a mass-complaint from Facebook. The sweeping set of complaints picked up tons of apps with "WhatsApp" in their names, but also apps - like AirDroid - that simply mentioned WhatsApp in the description. The reason given to AirDroid was "alleged trademark infringement." For reference, here's what an alleged trademark infringement notice from Google looks like.
This is a notification that your application, AirDroid: File & Notifications, with package ID com.sand.airdroid, has been removed from the Google Play Store.
REASON FOR SUSPENSION: Alleged trademark infringement.
Google has been notified that aspects of your application, AirDroid: File & Notifications, allegedly infringe upon the trademarks of others, and it has been removed from the Google Play Store due to a violation of the Content Policy.
All violations are tracked. Serious or repeated violations of any nature will result in the termination of your developer account, and investigation and possible termination of related Google accounts. If your account is terminated, payments will cease and Google may recover the proceeds of any past sales and the cost of any associated fees (such as chargebacks and payment transaction fees) from you.
You may contact Facebook, Inc. at [redacted]. If Facebook, Inc. contacts us specifically authorizing your app to be re-published, and your app does not otherwise violate the Developer Distribution Agreement and Content Policy, we will reinstate the app.
Please note that we have included a text copy of the Infringement Notice we received for your reference. If you have any further concerns about this issue, please address them directly to the complainant in the Infringement Notice provided below.
The Google Play Team
The text of the original complaint then follows. In this case, the complaint was comprised of 39 apps in total, alleging the following.
The title of this app contains unauthorized use of our famous Wordmark. Such unauthorized use creates confusion for the customer, implies unsubstantiated sponsorship or affiliation, and dilutes our brand, which is a violation of the Lanham Act. The trademark WHATSAPP is exclusively used by WhatsApp, Inc. and any other commercial use by a third party constitutes trademark infringement. The trademark WHATSAPP is a US registered trademark under registration number 4083272.
In fact, many of the apps wrapped up in the complaint did contain "WhatsApp" in the name, a tactic that's pretty clearly against Google's distribution agreement which warns against suggesting that your app is officially endorsed or related to another entity when it isn't. But the foundation of the complaint - that the apps' titles all contained "WhatsApp" - doesn't apply to AirDroid which, at the time of the takedown, was titled AirDroid: File and Notifications.
Since AirDroid doesn't have "WhatsApp" in the title, and its use of "WhatsApp" in the description is solely for establishing functionality (and not suggesting any official endorsement by or relationship with Facebook), it doesn't seem likely that the takedown was justified.
After about 40 minutes, Google "re-reviewed" the situation and reinstated the app, with the caveat that "apps may need to be re-published in order to be visible to users."
This takedown was problematic, but it's really just another symptom of a much larger issue: Google seems to be consistently acting on complaints like Facebook's without reviewing each part of the complaint. AirDroid was buried at number 15 in Facebook's long scroll of apps, and was summarily taken down with the rest. This seems odd given Google's plain English explanation of its process for removing bad content. In its overview video, Google says the following.
When considering a legal notice, we carefully assess the information provided. For all legal matters, it's important to properly name the content, specify the law being violated, and why you have the right to get this content removed. Without this information, we may be unable to understand or process your legal claim.
But we've seen plenty of instances of Google taking shockingly abrupt action against apps on the Play Store (while being less than proactive about Books), ostensibly bypassing the "careful assessment" portion of the process, providing no warning to developers, and opting to clean up after the fact. The problem with this is that, in the time between takedown and resolution, the developers of apps that are wrongfully un-listed from the Play Store could be missing out on revenue they depend on for a living. Besides that, an app's disappearance creates user confusion, possibly leading to elevated support requests. Then there's the stress of having potentially years of your work yanked from the store without warning, for reasons that aren't clear, without any guarantee that the situation can or will be resolved appropriately.
It isn't as though this type of action is totally inexplicable, though. AirDroid's case was an alleged trademark infringement, but some complaints (specifically DMCA complaints) require "expeditious" action. For huge content repositories like the Play Store, swiftly taking action on these complaints is critical. Here's a relevant passage from the DMCA.
Section 512(c) limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:
- The provider must not have the requisite level of knowledge of the infringing activity, as described below.
- If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
- Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.
In addition, a service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement. The Office provides a suggested form for the purpose of designating an agent (http://www.loc.gov/copyright/onlinesp/) and maintains a list of agents on the Copyright Office website (http://www.loc.gov/copyright/onlinesp/list/).
So it's likely that the practice of quickly taking down or blocking access to material has simply been lumped into the generic process Google uses for complaints about copyright and trademark violations. And to some extent, this makes sense - major partners like Facebook likely demand the same heavy hammer for trademark complaints that they enjoy for DMCA complaints, and it makes sense that Google would oblige. Plus, it takes time and humans to accurately assess every trademark complaint, things that Google might not be willing or able to lend to the cause for whatever reason.
Here's what AirDroid had to say after successfully resolving the situation:
AirDroid is the first app that allows users to receive and reply to notifications of various mobile IMs (including WhatsApp, Facebook Messenger, Kik, Telegram, more are coming soon) from Windows and Mac clients. All the features are realized via standard APIs. To help people understand these features, we need to mention those relevant brand names in our app description. We believe this falls under fair use.We appreciate that Google re-reviewed Facebook's request and reinstated our app in a relatively short time (about 40 mins). But we hope Google can improve the way they handle such cases, so that we don't have to manually publish the app to Google Play again in order for it to be visible to users, as it's not our fault and we have not infringed anyone's trademarks. We also hope Google can give developers some kind of pre-notice to respond before making the final "removal" decision, especially considering some trademark infringement allegations can simply turn out to be false and excessive.
It's understandable that Google has to protect itself legally and protect the relationships it has with major partners, but this writer believes it also has a responsibility to better protect the developers that keep its ecosystem afloat against false trademark complaints, and that might mean taking a bit more time to ensure that these types of complaints are valid before taking action.