Google Music Blog Mess Highlights Why Three Strikes Will Not Work
from the you-cannot-determine-infringement dept
We already wrote about how the big mess with Google taking down some music blogs showed many of the serious problems with the DMCA, but it also highlights some other important points. It’s also a perfect example of why asking third parties to stop infringement, or setting up a three strikes policy, makes no sense at all. Why? Because much of the furor over this was that the takedown notices were sent to music bloggers who had been given the tracks and given authorization by the very same labels that were issuing the takedowns. It was a case of the legal left hand not knowing what the marketing right hand was doing.
And this is a major, major problem with anyone who claims that some third party can “just know” when something is infringing. It’s why we saw that Viacom sent takedowns to YouTube on around 100 videos that it had uploaded itself. As the judge properly pointed out in the iiNet case down in Australia, copyright infringement isn’t something that you can just know when you see it:
copyright infringement is not a straight ‘yes’ or ‘no’ question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright
In effect, Google’s takedown system for music blogs is very much like a three strikes policy (though, it’s not clear how many strikes there really were). But even when people were posting legitimate music, sent to them directly by the label itself for the purpose of being posted to blogs, after enough strikes were made, the sites were taken down. That would be happening all the time in a world with mandated three strikes policies — and it’s the exact reason why such policies make no sense. They’re based on the false belief that copyright infringement is an easy “yes” or “no” decision that can be determined upon seeing it. But what we’re discovering in both this situation and in the Viacom situation is that even the copyright holders are really bad at figuring out if something is infringing or not. So why should anyone expect third parties to be able to do a better job?