from the time-for-a-fix dept
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.