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?

Filed Under: copyright, dmca, infringement, music, music blogs, problems, takedowns, three strikes
Companies: google

Music Reviewer's Blog Suspended For Promoting Music

from the left-hand,-meet-right-hand... dept

It's really funny to watch the old record labels try to understand the whole music blogging culture. The folks in the promotions department send music bloggers mp3s and encourage them to post them, knowing that it'll get the musician attention. That's a good thing. But the folks on the legal side go the other way... often sending takedowns to the very same bloggers. Rafi Kam points us to a ridiculous situation involving Warner Music Group, who hired a firm called Gray Zone to help "deal with" unauthorized tracks being shared online. Apparently Gray Zone tracked down a song by Gucci Mane that was on well-known music reviewer Andrew Noz's website and sent an angry cease-and-desist to both Noz and his hosting company using all capital letters, including the phrase: "IMMEDIATELY REMOVE ALL LINKS, REFERENCES, DOWNLOADS, VIDEOS, STREAMING AUDIO, AND MP3 FILES ASSOCIATED WITH GUCCI MANE."

Noz didn't see the email, which his filter assumed as spam, but his hosting company did and suspended his entire site. Nice of them. When Noz contacted them, they told him that, based on the above sentence, he needed to go through his blog and remove every reference to Gucci Mane (after all, that's what letter said). Apparently, Noz had written about Gucci Mane quite a bit, so that was a lot of work. Of course, the letter is wrong. While there may be a copyright issue with downloads, it's difficult to see where there would be any copyright claim at all when it came to links, embedded videos (hosted elsewhere) or references. That's actually copyfraud by Gray Zone, on behalf of Warner Music Group, by claiming copyright on things that it does not have rights over.

Either way Noz scrambled and spent hours deleting everything on his site about this particular artist. After all of that, he spoke with a VP at Gray Zone who said that Gray Zone and Warner were really only demanding that he take down a single track. But, of course, that's not what the takedown notice said. Noz points his anger at Warner Music, asking why folks from Warner Music email him tracks all the time... but then get his entire site taken down for those very same songs? This isn't just the left hand not knowing what the right hand is doing, it's the right hand shaking someone's hand, and the left hand smacking that guy in the face for shaking the right hand. And people wonder why the big labels are so hated?

I actually spoke with both Warner Music Group and Noz to try to find out more about this. Noz says that he's not sure if the one particular song was actually sent by someone from WMG, but that he gets hundreds of songs a week, many of which come from WMG, and he helps promote many of those tracks, so he finds it pretty ridiculous that rather than just contact him and politely ask him to take down the song, they had his entire site taken down. WMG noted that it, as a corporate entity, wasn't directly involved with this, but that it was handled by a subsidiary, Asylum Records. Asylum then sent over a statement:

Apparently, unauthorized copies of the unfinished and unreleased track "I Got All Of That" by Gucci Mane have been stolen and sent out to certain websites by parties unknown to us. In cooperation with the artist and his manager, we instructed our third-party vendor to notify websites to take down the unauthorized track from their sites immediately. We appreciate the cooperation of sites that recognize that this unfinished song does not represent the artist's complete vision and may have been obtained illegally.

Of course, that doesn't really address the issue. The complaint from Gray Zone didn't just target that one song, but all content related to this artist, and because of that, it forced the guy's blog offline -- all the while he's receiving plenty of songs directly from the record label. You can understand where there might be some confusion there. At the very least, someone should have just contacted the guy directly with a friendly request, rather than sending the immediate ALL CAPITALS cease-and-desist threat.

Filed Under: andrew noz, gucci mane, music blogs, promotions, reviews
Companies: asylum records, gray zone, warner music group

Blogger Fixes Its DMCA Takedown Process

from the good-job dept

You may recall earlier this year that Google was accused of invisibly deleting entire blog posts on Blogger when the RIAA would send takedown notices alleging that the blog posts contained unauthorized music. This was troubling for a few different reasons. First, on the RIAA side, there seems to be something of a double standard here, as many of the record labels purposely send MP3s to music bloggers to help promote their music... but then they decide to take some down? But the bigger issue was the way that Google was handling the whole issue. Bloggers were upset that entire blog posts just seemed to disappear entirely without any notice at all. Google claimed that it was alerting the bloggers, but it didn't seem to be doing a very good job of it, and making entire posts completely disappear based on the sayso of the record labels seemed to be a bit extreme. So it's good to see that Blogger has entirely revamped its takedown process for Blogger posts that get takedown notices.

First, for those issuing the takedown, they've switched from a manual (send a fax or letter) process to an electronic one -- which has the side benefit that Google can now get those takedown notices to ChillingEffects.org much faster. Google always passes along takedowns to ChillingEffects, but when the notices were faxed or typed it took a while before ChillingEffects could get them up, meaning that if content was taken down, there was often no way for the blogger in question to understand what happened (Google says it always emails the bloggers, but not everyone's email address is up-to-date).

On top of that, Google not only will notify people via email, but will put a notification in the Blogger admin dashboard, so the next time the blogger logs in they'll see it. Finally, and most importantly, to handle the "takedown," rather than totally deleting the posts as before, the posts are switched to draft mode, which allows the blogger to see the post and change it (if necessary). This seems like a much better policy than what Blogger/Google was doing before.

The one that that still seems to be missing (at least in this description) is the counternotice process. The process described in the announcement says that bloggers can adjust their post... but what if they don't believe it's actually infringing (fair use, authorized copy, different content, etc.)? It would be nice if Google also offered an easy counternotice procedure from directly within the Blogger admin as well -- so that a Blogger who has been falsely accused of a copyright violation can quickly counternotice and get the content back up.

Filed Under: blogger, dmca, music, music blogs, takedowns
Companies: google