Google’s Blogger unit last week shut down six music blogs that had received multiple complaints of copyright infringement. What happened next showed just what a mess the whole process is: some of the bloggers appear to be innocent, having spent plenty of time clearing the tracks they used with record labels first. Another never received past takedown notices and was shocked to find his blog suddenly removed. And those who didn’t care about copyright infringement in the first place have just moved to new domains.

According to Blogger’s terms of service, Google maintains the right to cancel blogs that violate its policies, including those on copyright. It does so after multiple uncontested DMCA takedowns arrive. (Those takedown letters are all archived at chillingeffects.org; each one is a list of hundreds of allegedly offending URLs.)

But the process for handling these claims has problems: the claims themselves can be wrong, they don’t always get forwarded, and even when they do, individual bloggers often fail to file a counter-notice.

Please try harder

Almost immediately, the blog operators start to howl about mistakes made by the music labels and by Google. Bill Lipold, owner of I Rock Cleveland, went to Blogger’s own forums to plead his case.

“As a music blogger I do understand that I may run the risk of going afoul of DMCA rules and regulations,” he wrote. “However, I assure you that everything I’ve posted for, let’s say, the past two years, has either been provided by a promotional company, came directly from the record label, or came directly from the artist. Even some of the past violations I’ve been served with fall into this category.”

The IFPI’s copyright patrol process is good at catching copyrighted songs, but simply knowing a song’s copyright status doesn’t give you the answer to the crucial question: does this site have the authority to post it for download? Lipold says that he always obtained such permission, and he posted numerous example e-mails proving his point. He had express permission, he says, to post the track that apparently led to his expulsion.

This isn’t a Google problem, but a label problem. Google has to pass on the notices and accept counter-notices if provided, and it can take steps to terminate people who violate its terms of service. But identifying the wrong tracks has nothing to do with the company, and if Lipold ignored previous notices without filing responses of his own, Google’s strike-counting system would just keep adding to his total until the axe finally fell.

But if identifying legal distributors of music is a tough job in general, it should have been simple in this case; the track in question was not even available for download. Lipold leaves his download links active for only a month or two to control bandwidth usage. “Consequently, the claim which led to my deletion was for an mp3 which had been removed from my server two years ago!” he says. “If at this point you’re drawing the conclusion that neither the IFPI nor Google know exactly what they’re doing in these matters, you’re not alone. If at any point during the DMCA claim process a human being had clicked on the link and looked for the infringing content they wouldn’t have found an mp3, but a 404 with the message, ‘Sorry, dude. The rockin’ has stopped.'”

Lipold puts the blame largely on the IFPI, which has filed most of the recent DMCA takedowns to Blogger, because its software is “not smart enough to validate the links it has flagged as containing pirated material… Hopefully, the IFPI fires the guy who wrote that sh**ty code. If there’s one person I blame for this fiasco, it’s him.”

Without warning

Not that Google’s own system worked flawlessly, either. After the controversy broke, the Blogger team posted a brief response of its own, telling people that they really need to file those DMCA counter-notices if they get a takedown and believe it’s in error.

A day later, though, the Blogger folks confirmed that their own system did not always forward takedown notices. “We looked into this issue further and identified one case where a blogger did not receive notification of any DMCA complaints before their blog was removed,” they wrote. “We’re sorry about this.”

That blog, Masalacism, has been reinstated. Blogger Business Product Manager Rick Klau reached out to author Benoit Liard “to apologize and explain what happened this week.” According to Klau, a bug in Blogger’s systems meant that Liard was racking up DMCA takedown requests even though the notices were not being forwarded. Thus, he had no chance to dispute them and was shocked to find that all his hard work on the site had simply disappeared overnight without apparent warning.

The sheep and the goats

Despite such problems, the music industry is often correct in its charges—and some music bloggers just don’t care. “Now I know I am not entirely innocent in this,” wrote the owner of Pop Tarts Suck Toasted, which is now back up at its own domain.

“I have knowingly published mp3’s that were not approved for posting but in doing so my intentions were always to shine the best possible light on the music I covered giving it the publicity it deserved. In this day and age with thousands upon thousands of like minded individuals doing the same it is a truly blurred line of what is right and wrong. A few years back I posted the entirety of Thom Yorke’s The Eraser and suffered the consequences of my improper actions. I knew it was wrong but was seeking to improve my standing in the blog world and acted hastily in doing so.”

Getting booted from Blogger was certainly traumatic—the site was “murdered by the villainous conglomerate known as Google (Blogger) yesterday morning due to copyright infringement or however they want to spin.” But the shutdown didn’t put this particular blogger on the straight and narrow; instead, the site now offers a .zip file of ten songs for download on the theory that one of these songs was probably responsible for the latest DMCA notice. Classy.

The author does complain that Google was “unfair” because “in their DMCA take down letters they never inform you what the infringing MP3s are, forcing the writer to take down ALL the MP3s in the offending post whether they have the permission to post them or not.” If you look at the actual takedown notices, you’ll note that this is correct—only post URLs are given, not the links to actual songs. That doesn’t mean the process is rocket science.

Looking through the most recent February 4 DMCA takedown notice that referenced the Pop Tarts Suck Toasted site, we can see the two URLs at issue. One was a week in review post, the other was “/2010/02/blast-from-past-whos-my-generation.html.” It’s a pretty good bet that one would remember being cleared by The Who (or their label) to post such an iconic piece of music—and an even better bet that one who didn’t have that permission would be aware the work was copyrighted.

Lessons learned

We can take away a few key points away from the incident. First, automated copyright detection systems are limited. Public interest groups are routinely mocked by the big copyright industries when they point out that you simply can’t tell, by seeing a copyrighted file pass over the Internet, that the transfer was unauthorized. The Blogger takedowns make that case nicely.

One of the blogs taken down this week, Living Ears, complains about the difficulty of even knowing which songs can be posted. “While much of what I post here is emailed to me, for larger acts such as The xx it can be difficult to determine which tracks are fair game to post. Often I take my queues from larger sites like Stereogum, Fader, or Pitchfork. If they have it up for download the artist must be good with that, right? Last year I posted a newly released MP3 from The Twilight Sad which was available on both Stereogum and Pitchfork. A week later Blogger had deleted the post.”

The fact that someone else has permission to post a copyrighted work does not in fact give you the permission to do so as well. Other sites may have paid money, done a promotional deal, or entered into numerous other arrangements for the rights to offer those tracks, and such rights may be time-limited; just seeing tracks available for download doesn’t mean that they can be hosted elsewhere.

But it’s easy to see why people are confused about the issue, even when they try to toe the line. It must be doubly frustrating for someone like Lipold, then, to spend time negotiating with record labels and obtaining explicit permission, only to be accused of infringing copyright anyway.

Second, all of the problems here apply to “three strikes” regimes in general. In fact, Google’s approach is such a system, and it’s a voluntary one. ISPs are under the same DMCA guidance to disconnect repeat infringers (this is left incredibly vague in the law), but few do—and no one does it on a mass scale. The problems with Google’s Blogger bloodbath show you why no one’s going to do this in a big way without legislation: it’s bad PR, it has big problems, and it doesn’t do much (the sites are mostly back up and offering their files on different domains already).

Finally, the whole debacle is like a case study in the pros and cons of storing material on someone else’s servers. In some cases, years of work were wiped away when the blogs were deleted, whether or not it was all infringing. On the other hand, hosted services like Blogger allowed small music blogs to launch and thrive without spending much money or forcing people to learn the gritty details of website maintenance. If you’re doing something on a hosted service that you would hate to lose, keep a local backup.

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