Google Deletes Music Blogs – What’s Going On? (Plus: How to Respond to a DMCA Takedown Notice)

The scandal already has a name – Blogocide 2010. In the first week of February, Google deleted several music blogs entirely for alleged violations of the Digital Millennium Copyright Act. Bloggers reacted with outrage. As I write this, Google has just posted an explanation of their actions, which specifies, “[w]hen 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.”  Google has restored one blog which Google concedes did not receive notification of DMCA complaints, but the others remain deleted as of the evening of February 11th.

If you’re a music blogger who uses Blogger or any other remote hosting service, you may be wondering if you will be the next to lose your blog. You may have already received a DMCA takedown notice. Below, we discuss the chain of events that likely led up to Google’s deletions of the offending blogs, as well as what you can do if your blog receives a DMCA takedown notice.

How Does This Happen?

The chain of events doesn’t start with Google. DMCA notifications are sent by copyright holders or their representatives to entities hosting allegedly infringing content. In this case, Google owns Blogger, which hosts the content of the music blogs, so copyright holders send notifications to Google regarding particular Blogger accounts. Then Google contacts the individual Blogger account holders and says “we received a notification that Content Item X potentially infringes on someone else’s copyright, so take it down or else.”

Some people seem to believe that the DMCA itself is an organization. It’s not — it’s a law. As seen in the following post to Blogger’s complaint forum by Bill Lipold, the owner of the deleted blog IRockCleveland, the organization seeking to enforce the DMCA in his case was the International Federation of the Phonographic Industry, a multinational lobbying organization which represents record labels in pursuing anti-piracy enforcement on a worldwide basis.

In Lipold’s case, Google forwarded him approximately three takedown notices in fall 2009. Lipold seems to have ignored them until his blog was deleted, at which point he posted a complaint on the Blogger support forum. In his post, he informs Google that he believed he had permission to post an mp3 from the band BLK JKS and posts an email from the record label Secretly Canadian, whose publicist expresses confusion about the takedown notice and apologizes.

Looking at the IFPI’s roster of labels, it appears Secretly Canadian is not an IFPI member. However, BLK JKS’s album on Secretly Canadian is distributed by the Alternative Distribution Alliance (ADA), a distributor which is 95% owned by Warner Music Group (WMG). Warner Music Group is an IFPI member. The other two artists about which Lipold received DMCA notices, Spindrift and Jay Reatard, also have releases distributed by ADA.

In other words, the likely chain of events was as follows: indie label’s publicist sends out a promo mp3 to a blogger. Blogger posts mp3, as publicist intends. Indie label’s major distributor reports blogger’s posting of mp3 to blogger’s ISP as infringement. Blogger’s ISP deletes blogger’s blog.

They have a word for this sort of thing. However, it appears that Lipold made an important mistake of his own: he ignored the takedown notices simply because he believed he had permission to post the mp3s he posted. Blogger, ADA and the IFPI, on the other hand, likely did not know that Lipold had permission, presumably because Lipold’s posts were not reviewed by a human being, but by a bot crawling the web looking for infringing music files. Although he may have been entirely in the right legally, Lipold did not take steps to address and clarify the dispute until it was too late. Now his blog is strumming a digital harp in Internet heaven.

Why is Google Being So Mean?

Google is not being mean. Google is trying to avoid secondary liability for the copyright infringement of others by demonstrating that Google responds to reports of potentially infringing material on its own site (Blogger) as quickly as possible. In other words, Google is trying to avoid being sued itself for allowing copyright infringement to continue after Google itself has been notified of illicit activity. Google is simply trying to protect itself. It is most likely not targeting any particular blog out of malice.

I Got a DMCA Takedown. What Can I Do?

Lipold and his fellow bloggers should have taken affirmative steps to respond to the takedown notices and protect themselves. Below, we’ll discuss what you can do if you find yourself in a similar situation.

DISCLAIMER: The following is meant only to sketch out potential courses of action. It is not legal advice; please do not rely upon it as if it were.

1) Send a counter-notification ASAP. The DMCA includes its own means of responding to a DMCA takedown notice — the DMCA counter-notification, a form in which a notice recipient explains why the notice is in error. Google’s own instructions for creating and sending a counter-notification can be found here. Note that you have to assert a legitimate reason why the takedown was in error. Alternatively, Chilling Effects, which is a clearinghouse for information about DMCA takedowns, has an automated form here which you can use to create a counter-notification. Note that you must submit your counter-notification by snail mail or fax. Don’t wait to respond — it appears that the blogs targeted in Blogocide 2010 may not have responded promptly to the DMCA notices forwarded by Google. When Google sent notices and got no response, it felt it had no choice but to proceed as if the offending blogs were posting material without authorization.

2) Contact a lawyer. If you are really not sure what is going on, talk to a lawyer who is familiar with copyright and the DMCA. He or she can advise you how to proceed and prepare correspondence to record labels, ISPs and other parties on your behalf. You might have to pay your attorney for a few hours of work, but you’ve put a lot of time and energy into your blog.

3) Alternatively, try contacting the Electronic Frontier Foundation. The EFF is a public interest organization which works on behalf of electronic freedom and privacy. If you have a meritorious claim, the EFF may be able to put you in touch with a lawyer who can assist you on a pro bono basis. They host the Takedown Hall of Shame and offer very good advice on dealing with Youtube DMCA takedowns which can be applied to other takedown scenarios as well.