Last week Google shut down a series of music blogs running on their popular Blogger service. All of the blogs were shut down for alleged copyright violations but at least six of the blogs were popular music blogs, including several that claimed they had obtained all of the music they were sharing legitimately.
This kicked off a firestorm of controversy and blame was quickly spread around. Many blamed the labels for sending such clearly false DMCA notices, others blamed Google for sending inadequate notices and others still blamed the laws themselves
The truth is that there is plenty of blame to go around. When you step back and take a look at the situation and how it unfolded, you can see that there are no completely innocent parties nor any one guilty entity. It was a perfect storm created by a series of bungles and missteps that, fortunately, is more rare than it seems.
However, to figure out how to prevent such takedowns in the future, let us take a look at what happened and what everyone can do better.
The Record Labels
The record labels initiated the whole situation. Their automated bots detected copies of their MP3s on various Google-hosted blogs and their staff filed takedown notices against those blogs. At least some of these takedowns, however, were against blogs that, according to their owners, had received permission from various agents to post the content. In fact, many had been pushed by PR firms to post the songs and promote them.
Why Blame Them: Though it seems likely the vast majority of the notices were legitimate as there are, or at least were, many unlawful music blogs on Blogger, greater care should have been taken to avoid sending notices to blogs that had been given permission to post the music files. In many cases, according to the bloggers, even a cursory evaluation of the actual page the MP3 was on would have shown it was a permitted use, something the record labels failed to do. Clearly, the record labels could have and should have done more to avoid filing against those they recruited to push out their works.
In Their Defense: Record labels are huge corporations, even today, and there are countless departments and third party contractors involved with the companies. It is very likely that enforcement team does not know what the PR team is doing, especially since both are likely outsourced to some degree. Furthermore, given the sheer volume of such notices that are almost certainly sent out and the relatively few that turn out to be mistakes, the record labels, overall, seem to do a decent job handling the situation under the circumstances. While there is clear room for improvement, I don’t think anyone would call these notices malicious, especially since they hurt themselves and their own PR efforts.
Google’s role in this was more of a middle man. It received the takedown notices from the labels, removed or disabled access to the infringing works and notified the bloggers involved of the removals. Once the DMCA notices reached a threshold to be considered repeat infringers, Google then deleted the blogs, as demanded by the DMCA.
Why Blame Them: Google’s notices seem to be at the source of much of the confusion. Bloggers initially claimed that they didn’t always know what was being removed or why nor did they know how to respond. Others also claimed that they thought the removal of the content was the end of it and nothing more needed be done, much less that the notices had a cumulative effect and could result in an outright ban of their blogs.
In Their Defense: Simply put, Google has done more than most in this area. Google’s partnership with Chilling Effects, which has been deeply integrated into the Blogger takedown process, ensures transparency and as you can see in this sample notice links are clearly provided. Though Google may have some work to do in explaining the counternotice procedure, they still do more than the vast majority of hosts out there, especially since their overhauls in August.
If we focus solely on the bloggers operating legitimate music blogs and not those using the service for unlawful purposes, the bloggers largely did nothing. They received permission to post MP3s, in some cases having them pushed upon them, and did so. They received takedown notices but, since the work was already removed, did nothing further.
Why Blame Them: Music bloggers, especially those who post MP3s, have to understand that they are very likely to run into copyright issues. They have an obligation, when using other’s copyrighted works, to understand the law and what their obligations are. Also, no response is one of the worst responses to any legal papers received. If they had read the notice thoroughly, researched the law behind it and then filed a counter-notice when appropriate, their blogs would still be open.
In Their Defense: The law is confusing and impossible even for attorneys to fully make sense of. Bloggers, for the most part, lack the time, resources and knowledge to fully understand copyright law. They rely upon their Web hosts and those filing objections against them to make what they need to do understood. Furthermore, those who did nothing wrong put their faith into the system, assuming that it would work without them needing to take any action but that was clearly not the case.
The DMCA safe harbor provisions require hosts to expeditiously remove or disable access to allegedly infringing material when they receive a proper notice. They also require that hosts ban or otherwise shut down the accounts of repeat infringers. Google, as a U.S. company, is bound by this law and it is the method that the record labels used to secure the removal of the files they viewed as infringing and it was under this policy that the blogs in question were shut down.
Why Blame It: The law doesn’t offer much forgiveness nor, at least initially, voice to the person who is the subject of the DMCA notice. When notices are filed correctly, the system works fine, but when mistakes are made it is often very ugly and unfortunate. Under the law, Google had little choice than to remove the allegedly infringing pages, even if they were marked in error, and put the burden on their user to respond.
In Its Defense: The DMCA provides very robust protection against misuse. There is a counter-notice system which restores works that were removed and the DMCA also provides very harsh penalties for those who abuse the law. If hosts carry out the DMCA correctly and users respond appropriately, a mistake in the system should be just an annoyance. Failures such as this one require a very rare set of circumstances to come together at once to compound the problem.
So who is to blame for Musicblogocide 2010? Everyone.
For this type of disaster to take place, there has to be a very sizable series of mistakes and errors. There is a reason why incidents such as this one are very rare.
Simply put, the record labels need to do better when sending their notices, Google needs to better explain them (perhaps relying a bit less on Chilling Effects for that assistance), bloggers need to be aware of the law and respond accordingly. Also, the law itself could probably use a few tweaks to streamline the handling of errors.
For the most part, the safe harbor protections have been very good for the Web and, on the whole, have been used as they were intended. Though a few have used them maliciously, they have, for the most part, been dealt with. Though a few mistakes have happened, they are rare in the big scheme of things.
Still, when something like this does happen it is important to analyze it and see where the mistakes were made. This way, we can prevent them in the future and continue to make rare occurrences even more rare.
In the end, I hope that this will be a learning experience for all involved and those who were spared. If we move forward from this wiser, then it was not a completely useless experience.