That feeling—as if a couple dozen voices cried out in terror and were suddenly silenced. If you felt some similar disturbance in the force last week, you might be aware that Google pulled the plug on several MP3 blogs it had previously hosted on its Blogspot service. On Wednesday, The Daily Swarm reported that several prominent bloggers had found their blogs yanked from Google's service. The next day, Google responded with a "quick note", saying that it was merely enforcing its DMCA policy .
Ah, our longtime friend the DMCA. The Digital Millennium Copyright Act acts as a safe harbor for web hosts whose users infringe others' copyrights. So long as it engages the rights holder in a statutorily-choreographed dance (designated agent, signed notice of infringement, takedown, cha cha cha), the host is off the hook. This is fine as far as it goes and—let's be honest for a minute—many MP3 blogs do indeed post a lot of files that infringe copyrights. For these bloggers, the DMCA is unavailing—in fact, by promoting the material's removal rather than a copyright infringement suit against the host, the DMCA is (at least arguably) doing exactly what it was intended to do.
But where users aren't actually infringing others' copyrights, the DMCA can go too far. Because a host's failure to remove infringing content means it can be sued for that content, the DMCA encourages a "takedown first, ask questions later" approach. So bloggers like Bill Lipold of I Rock Cleveland, who says he had permission to post the music his blog featured should not expect their blogs to be eliminated. (Although Bill should make sure that the people who authorized his posts actually have the legal authority to do so). Similarly, bloggers whose use of others' copyrighted works falls under the umbrella of fair use have a good defense to infringement.
These innocent users can horn in and perform some DMCA dance moves of their own. Specifically, the DMCA describes a “counter-notice” process for notifying your host that you dispute the copyright holder's claims of infringement. There are a lot of hoops to jump through (Chillingeffects.org provides a great counter-notice generator to make it easier), but the results are worth it: your host is required to reinstate your content, and if you can show that the copyright owner knew that you weren't infringing its copyright when it sent its notice, you can actually recover damages from it in court. Of course, if you're not certain that your use of the music in question was legal, then you should understand the risks of sending a counter-notice: if the copyright owner thinks it can win in court, or if it thinks it can scare you into settling, it may sue you for infringement directly. No matter what you decide to do, though, the DMCA expects you, the blogger, to decide.
Dan Ray, a third-year student in Harvard Law School's Cyberlaw Clinic, contributed to this post.