Google's Latest Music Blog Kerfuffle Highlights Problems With The DMCA

from the time-for-a-fix dept

You may recall that almost exactly a year ago there were all sorts of reports of music blogs using Google's Blogger service finding their blog posts silently disappearing. The issue, it turned out, was the way Google dealt with DMCA takedown notices from copyright holders. The way the DMCA is set up, in order to avoid liability, Google is put in an awkward position of having to take the content down. After the outcry a year ago, the team at Blogger spent a lot of time talking to the lawyers both internally and elsewhere (such as at the EFF) to see if they could come up with a better way to still follow the law, but avoid the mess of February '09. Back in August Google announced its revamped DMCA policy for Blogger, specifically designed to deal with this. Basically, the company tried much harder to communicate with users as to what was happening. Rather than just deleting whole blog posts, it would move them to draft mode, and then try to alert the bloggers via email and through the Blogger dashboard. This definitely seemed like a step in the right direction, but I still thought the company fell short on not having a clear counternotice procedure. Instead, it seemed to default to assuming the DMCA takedown was accurate, and moving a post to draft would be enough to get the blogger to "remove" the offending content? But what if the content wasn't actually infringing?

Either way, unfortunately, it looks like the new policy isn't working. Today, the stories started popping up again, claiming that music blogs were being deleted, leading to something of a Twitter frenzy. Certainly, it appears that some blogs had their content removed despite having permission from the record labels to post the content. But it also appears that some of the frenzy involves people finding the news stories from a year ago and not realizing we're in 2010 now. For example, this blog post at Nashville Scene points to a year old story as if it's new.

And, in fact, from what's being talked about from the blogs that did have their content removed, it sounds like the newer system (unlike the old system) did alert them to what was happening, but they just felt hopeless to respond. Google has put up a response, basically saying that if it doesn't receive a counternotice, and it keeps getting DMCA takedowns on the same account, eventually it takes the blog down as a "repeat offender." So we're back to the point that I predicted in August, where your average everyday blogger has no idea what a DMCA counternotice is and how to use it -- so it would be much better if Google made the process of filing such a counternotice a lot more intuitive.

In the end, though, there are two real issues here. First, is the ridiculous "left hand doesn't know what the right hand is doing" aspect of record label lawyers sending out DMCA takedowns for content that its marketing department sent to the blogs on purpose. But second, and much more important, is the ridiculousness of the DMCA's notice-and-takedown provisions in its safe harbors. It's a "guilty until you're innocent" type of measure. It effectively forces Google into a position where it needs to take down the content, until a blogger goes through the confusing process of filing a counternotice. It makes no sense, at all, why we don't improve the process to allow for a notice-and-notice system, whereby the blogger is allowed to respond to the copyright holder before any content is removed. That seems like common sense. On top of that, while the DMCA is a little vague on this topic, it does in some ways suggest that service providers must do more to prevent repeat offenders -- which is part of the reason why Google most likely shuts down those "repeat offenders." Again, it seems like Google should be a lot more communicative with blogs it's about to shut down, and a lot clearer in explaining the issues (and the best way to respond). The current notices leave a lot to be desired.

But, the real issue is how much pressure the DMCA puts on Google to act in this manner, and with things like ACTA being negotiated in secret with the aim of locking in the more draconian rules of such safe harbors, it will become increasingly difficult to fix that faulty aspect of the DMCA takedown process.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Rick Klau (profile), Feb 10th, 2010 @ 4:20pm

    Couple clarifications

    Hey Mike - We send e-mails for every DMCA complaint received. Each e-mail includes information about the risk re: repeat offenses, a link to our DMCA policy page, specifically identifies the post(s) in question along with the offending link(s), and includes a link to ChilingEffects so the blogger can view the actual complaint we received.

    The notice received by the bloggers you pointed to is the final notice, after the repeated DMCA complaints are processed (and where we do not receive counter-claims). More on filing the counter-notification is here:

    http://www.google.com/blogger_dmca.html#counter

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    ChurchHatesTucker (profile), Feb 10th, 2010 @ 4:44pm

    Huh?

    "But it also appears that some of the frenzy involves people finding the news stories from a year ago and not realizing we're in 2009 now."

    We're in 2010, Mike. Come join us! (Bring a warm coat.)

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Feb 10th, 2010 @ 5:11pm

    2009

    But it also appears that some of the frenzy involves people finding the news stories from a year ago and not realizing we're in 2009 now.

    Some of us are even in 2010.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Mike Masnick (profile), Feb 10th, 2010 @ 5:12pm

    Re: Huh?

    We're in 2010, Mike. Come join us! (Bring a warm coat.)


    Whoa! Not sure how that happened...

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Feb 10th, 2010 @ 5:26pm

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Brad Hubbard (profile), Feb 10th, 2010 @ 5:29pm

    Re: Re: Huh?

    I naturally assumed it was a comedy bit.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    Tim Dickinson (profile), Feb 10th, 2010 @ 5:32pm

    Pleased you picked this up Mike. I was interested to see your take on it.

    I don't blame Google for the lack of consistency from the labels or the skewed DMCA process - but you're absolutely right that communication fell apart again, and that is something that is at least partly their fault.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    :), Feb 10th, 2010 @ 6:14pm

    What is missing.

    Google and everybody else could do the following:

    - Put in shocking bright colors the warning: "This was removed by a DMCA notice if you wish to contest this you should fallow our tutorial HERE"

    Put it circled in a thick yellow line with a big attention icon.

    Or something like "This was removed by a DMCA claim do you wish to contest it? Yes or No"

    Many will not contest anything because it envolves spending money, what they should do is use music that have a liberal copyright license like CC 3.0 SA and they can find those in Jamendo and Magnatune.

    Any artist that don't put their music with a liberal license is not worth your attention.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    :), Feb 10th, 2010 @ 6:34pm

    What is missing.

    http://www.chillingeffects.org/question.cgi?QuestionID=132

    By the way if the guy accusing anyone of wrong doing got it wrong he will have to pay you.

    If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)]

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    :), Feb 10th, 2010 @ 6:45pm

    Do not hide bad laws from people.

    Don't hide bad laws from people, let them all see why the content was removed and let the people see how fair the situation is.

    It is bad for the people and for companies everywhere.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    :), Feb 10th, 2010 @ 7:39pm

    Less risky places to make blogs about music.

    Osiris Serverless Portal is a option to creating music blogs.

    There is no DMCA on encrypted anonymous P2P land :)

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    wallow-T, Feb 10th, 2010 @ 9:30pm

    A DMCA notice is God's way of telling you that you need to improve your taste in music. :-)

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    Richard (profile), Feb 11th, 2010 @ 6:04am

    Re: Couple clarifications

    Why does the counter notice have to be sent by regular mail or fax is this in the law?

    It seems to put the blogger at a disadvantage - especially if they're not in the US.

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    Pickle Monger (profile), Feb 11th, 2010 @ 6:37am

    Google's Latest Music Blog Kerfuffle...

    Kerfuffle? Seriously? I was... uhm... flabbergasted when I saw the headline! :)

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    JB, Feb 11th, 2010 @ 8:27am

    Re: Re: Huh?

    "Whoa! Not sure how that happened..."

    Isn't that the reaction of most climate 'scientists'?

    All joking aside, something I've thought about on how the DMCA notice-takedown provisions could be modified: Place a large warning at the beginning and end of a post, or surrounding the 'infringing' item instead of immediately taking it down. Also, place the DMCA requestor's credentials with the warning and a link to a landing page with instructions on filing a counter-notice (as well as possibly the original notice). A timer could also be placed with the warning indicating the time remaining before the item is removed barring a legitimate counter-notice. This will prevent abuses to the DMCA as well as alert citizens that the content is to be taken with a grain of salt.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Tim Dickinson (profile), Feb 11th, 2010 @ 9:25am

    Re: Couple clarifications

    Whilst the posts are named in the DMCA complaint - bloggers are not always told which file is offending - that is part of the problem.

    Here's one of the recent notices
    http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=32154

    Where are the offending files listed?

    Now the majority of bloggers in that list were sharing copyrighted files and the DMCAs were legitimate, and there would be little complaint about those blogs disappearing. But still the offending files are supposed to be listed, no?

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    coach outlet mall, Apr 9th, 2010 @ 2:58am

    the best

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  18.  
    identicon
    skyg, Apr 9th, 2010 @ 3:01am

    it turned out

    You may recall that almost exactly a year ago there were all sorts of reports of music blogs using Google’s Blogger service finding their blog posts silently disappearing . The issue, it turned out, was the way Google dealt with DMCA takedown notices from copyright holders. The way the DMCA is set up, in order to avoid liability, Google is put in an awkward position of having to take the content down. After the outcry a year ago, the team at Blogger spent a lot of time talking to the lawyers both internally and elsewhere (such as at the EFF) to see if they could come up with a better way to still follow the law, but avoid the mess of February ‘09. Back in August Google announced its revamped DMCA policy for Blogger, specifically designed to deal with this.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Musik Flatrate, Apr 13th, 2010 @ 3:41am

    Where are the offending files listed?

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Dan, May 20th, 2010 @ 3:38am

    Google should say something

    Google should say something clear about this issue.
    Taiyo Yuden

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Polina Rom, Jul 8th, 2010 @ 5:39am

    Piano School Thornhill

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    reply to this | link to this | view in thread ]

  22.  
    identicon
    DJ Services, Jul 27th, 2010 @ 1:35am

    Great article

    I love Polina's definition of Music.. :)

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Philipp, Oct 17th, 2010 @ 7:17am

    Why using Google Services?

    Hey there, I don't understand why people are using google blogger service.. Google is a great, the best, search engine but all the other services (excluding analytics) I can't recommend. Not because the services would be bad but because of the monopoly of google in the web. A browser, advertisements, mail, video (and youtube!), .. Try Wordpress and host yourselves, that's what I can recommend. I did it at http://www.runterladen-kostenlos.com and now I'm pleased :)

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Jay, Dec 3rd, 2010 @ 1:35pm

    Dmca Has Always Been An Issue

    Every since dmca started they have been making new ways to combat is and they will be releasing some new things in the upcoming months.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Mike, Apr 7th, 2011 @ 11:36am

    To Much DMCA For Me

    Every 2 seconds there is a dmca issue, i guess it will take the industry to realize that something needs to change for this to slow down.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Lyric Geek, Sep 5th, 2011 @ 10:55pm

    music

    Collection of song lyrics and band biographies for popular music ranging from the 1960s to the present day

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    disc jockeys, Jan 30th, 2012 @ 10:12pm

    DMCA taken it to far

    In one way its right and wrong think about it as taking something from the past and making it a comeback all over again.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    smoothloops, May 12th, 2012 @ 8:40pm

    I am looking for artists to perform my tracks have a listen and leave feedback. I hope we can work together. http://soundcloud.com/smoothloops

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Mike, Jul 16th, 2012 @ 9:08pm

    The communication fell apart again. I am sure its not going to work anymore.


    Thanks,
    Canadian Mortgages

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    glassesonweb (profile), Aug 11th, 2012 @ 10:33pm

    Google never bother to have communication both ways

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    online mastering, Oct 24th, 2012 @ 11:33am

    yooo

    nicee one

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    4Music - Home, Nov 22nd, 2012 @ 11:52pm

    4Music - Home

    4Music brings you closer to the hottest artists around right now. If it's music news, latest playlists, video exclusives and great competitions you're after then head this way. You can watch 4Music on Freeview channel 18, Sky channel 360 and Virgin Media channel 330.

     

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  33.  
    identicon
    Danniela Lucas, Jul 9th, 2013 @ 8:30pm

    Indie Music

    Great post! Do not forget to check out Indie Music from Australia Cheers!

     

    reply to this | link to this | view in thread ]


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