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.