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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.
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.
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Couple clarifications
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
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Huh?
We're in 2010, Mike. Come join us! (Bring a warm coat.)
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2009
Some of us are even in 2010.
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Re: Huh?
Whoa! Not sure how that happened...
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Re: Re: Huh?
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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.
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What is missing.
- 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.
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What is missing.
By the way if the guy accusing anyone of wrong doing got it wrong he will have to pay you.
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Do not hide bad laws from people.
It is bad for the people and for companies everywhere.
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Less risky places to make blogs about music.
There is no DMCA on encrypted anonymous P2P land :)
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Re: Couple clarifications
It seems to put the blogger at a disadvantage - especially if they're not in the US.
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Google's Latest Music Blog Kerfuffle...
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Re: Re: Huh?
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.
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Re: Couple clarifications
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?
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the best
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it turned out
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Google should say something
Taiyo Yuden
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Piano School Thornhill
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Great article
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Why using Google Services?
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Dmca Has Always Been An Issue
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To Much DMCA For Me
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music
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DMCA taken it to far
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Thanks,
Canadian Mortgages
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yooo
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4Music - Home
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