Music Blogger Takedown — Yet Another Day the Music Died

The site of the fatal plane crash that took the lives of Buddy Holly, the Big Bopper and Richie Valens (and their pilot).

This is topic near and dear to Siouxsie — MP3 Blogs.

Pitchfork has this post about Google-owned Blogger.com shutting down a handful of its popular MP3 blogs.

Blogger.com removed these sites because it had received more than one DMCA infringement notice about the allegedly offending sites.

For those who do not know, DMCA stands for the Digital Millennium Copyright Act, which seeks to regulate internet copyright infringement.  The DMCA states that online providers like Blogger.com will not be liable for infringing activity so long as they adhere to certain guidelines and remove allegedly infringing material when they receive notices of such from authorized individuals.

The MP3 blogs removed from Blogger.com include Pop Tarts Suck Toasted, I Rock Cleveland, LivingEarsMasalascism and It’s a Rap.  Pitchfork reports that

[i]f you follow the links to any of those blogs, you’ll see that they’ve been wholesale deleted. All you’ll find is the Blogger message, “The blog you were looking for was not found.” The apparent reason? The music posted on the blogs allegedly violates Blogger’s terms of services.

The bloggers whose sites were affected are currently trying to understand the situation. Many of them argue that they have followed the rules and taken down unauthorized songs when asked in the past. They say they received no warnings prior to the removal of their blogs.

The Daily Swarm provides a copy of the removal notice sent from Blogger.com to the mp3 blog I Rock Cleveland (now removed).

From: support@blogger.com [support@blogger.com]
Sent: Tuesday, February 09, 2010 12:49 PM
To: irockcleveland@gmail.com
Cc: blogger-dmca-notification@google.com
Subject: Blogger Blog takedown notification

We’d like to inform you that we’ve received another complaint regarding your blog (http://irockcleveland.blogspot.com/). Upon review of your account, we’ve noted that your blog has repeatedly violated Blogger’s Terms of Service (http://www.blogger.com/terms.g). Given that we’ve provided you with several warnings of these violations and advised you of our policy towards repeat infringers, we’ve been forced to remove your blog.

Thank you for your understanding.

Sincerely,

The Blogger Team

At least some of the bloggers whose sites were affected maintain that they had permission from the artists/labels  to post the music on their site.  (Daily Swarm provides  I Rock Cleveland’s e-mail to Blogger, where he maintains that he had permission to post the MP3s.)  These MP3 bloggers are outraged because they received no notice that Blogger.com was going to remove their sites.

It seems, however, that all of the bloggers whose sites were affected had received multiple DMCA notices via Blogger.com regarding content on their sites.

It also appears that none of the affected bloggers ever challenged the DMCA notices or notified Blogger.com that those DMCA notices were incorrect.  And as a result, Blogger.com likely tagged the bloggers and their respective sites as repeat infringers.

This is so because the way the DMCA works, if the MP3 bloggers believed they had permission to post the allegedly infringing material, they needed to alert Blogger.com of this fact.  More specifically, the bloggers should have written a DMCA counter notification pursuant to the provision of DMCA codified at 17 U.S.C. § 512(g) and demanded that the  blog posts be reposted.  Not only would the material have been reposted; the sites and/or bloggers would have been removed from any copyright infringer list.  Problem solved.

But let’s get real; these counter notification provisions are rarely used.   And it probably isn’t realistic to expect an MP3 blogger who posts 1000s of MP3 files to send a counter notification regarding one or two of its files  (the counter notifications, by the way, cannot be filed by email, and could conceivably open the blogger up to liability).   Moreover, it appears that Blogger.com never explained to its users that they needed to challenge DMCA notices if they believed they had the right to post the files (even if the bloggers didn’t care whether or not the posts were removed).  Blogger.com never warned the MP3 bloggers that multiple unchallenged DMCA notices would result in a complete removal of their site.

Yesterday, Blogger.com posted a reminder on its site that it had updated and improved its policies regarding the DMCA.  Blogger explains that:

Our current policy is that when we receive a DMCA complaint, we:

  • Notify the blogger about the complaint by e-mail and on the Blogger dashboard
  • Reset the offending post to ‘draft’ status, allowing the blogger to remove the offending content.
  • Send a copy of the complaint to ChillingEffects.org.

When we receive multiple DMCA complaints about the same blog, and have no indication that the offending content is being used in an authorized manner, we will remove the blog.

Blogger.com even acknowledges that they “[i]nevitably . . . receive DMCA complaints even though the blogger does have the legal right to link to the music in question, and that if this happens “it is imperative that you file a DMCA counter-claim so we know you have the right to the music in question.

That is great.

But unfortunately, it does not appear that Blogger.com provided this information to its bloggers previously.  If you look at Blogger.com’s updated policy posted in August 2009, it is completely silent as to the need for MP3 bloggers to send counter notification provisions.  Nor did it warn MP3 bloggers that if they failed to file counter-notifications to DMCA complaints that their blogs would be removed.  To the contrary, the August 2009 policy makes it sound as if everything will be copacetic so long as the bloggers remove the allegedly offending content.

So, while Blogger.com’s actions are arguably proper and advisable under the DMCA; it probably could have avoided this whole mess if it had just taken the time to explain its policies (and how the DMCA works) to its bloggers.   And if Blogger.com had a policy of removing websites after receiving a certain number of unchallenged of DMCA notices about the site, Blogger.com should have made this clear.  These are music bloggers for heathen’s sake; they are not music blawgers (goth or otherwise).

And for the MP3 bloggers that claim that the DMCA notices of infringement regarding their site were not valid, here is a fun fact — there is a seldom-used provision of the DMCA, 17 U.S.C. § 512(f), which provides that liability can be imposed on those who knowingly send bogus DMCA takedown notices .  Just saying.

On a happier note, Pitchfork notes that Pop TartsLivingEars; and It’s a Rap have relaunched at their own URLs.

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~ by siouxsielaw on February 11, 2010.

One Response to “Music Blogger Takedown — Yet Another Day the Music Died”

  1. Nice post. I agree with your analysis.

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