Someone must have traduced Ryan S., for without having done anything wrong, he was informed one fine evening that several of his old blog posts had been deleted.

Dealing with aggressive music industry copyright cops is nothing new for music bloggers like Ryan Spaulding, proprietor of Ryan's Smashing Life, who routinely posts MP3s provided by band publicists for promotional purposes. What is new, as the LA Weekly reported last month, is that Blogger now appears to be pulling posts without advance notice. But even when a poster is finally notified, Ars has learned, Blogger appears to be skirting its own stated policy for dealing with takedown notices under the Digital Millennium Copyright Act, providing such scant information that writers may have little realistic hope of availing themselves of the remedies provided by statute.

DMCA and the vanishing posts

Anecdotal evidence suggests that in recent months Google has switched from a policy of notifying users of takedown notices, giving them a opportunity to remove content themselves, to one of automatically pulling flagged posts.

First, it's necessary to understand a bit about the way the DMCA works. The 1998 law sought to protect Internet Service Providers from potentially crippling lawsuits alleging "contributory" or "vicarious" copyright infringement by creating "safe harbors" that immunize providers for user conduct. But to be eligible for the "safe harbors," providers must also comply with certain requirements, such as acting "expeditiously" to respond to "cease and desist" or "takedown" notices from copyright owners identifying infringing content. If a user believes his content has been removed erroneously, he can file a counternotice, at which point the provider is supposed to restore the content (though not strictly obligated to do so) unless the copyright holder responds by stating its intention to file an infringement suit against the user.

Google—which owns Blogger—has pretty steadfastly refused to discuss its policy for handling DMCA takedown notices, referring all inquiries to a posted policy and asserting that the company removes content only when "legally appropriate." Anecdotal evidence, however, suggests that in recent months it has switched from a policy of notifying users of takedown notices, giving them a opportunity to remove content themselves, to one of automatically pulling flagged posts. (Sources at the company say that—unlike Google's YouTube, which makes use of automatic copyright "fingerprinting" and filtering software—Blogger removes content only in response to formal C&D notices.)

That grates on writers like Spaulding, who complain that the new policy ends up deleting their own intellectual property: the reviews or commentary that may accompany an MP3 track marked for removal. Worse, it means readers who follow links to old posts and find nothing but an error page may conclude the blog is defunct.

Copyright on a borderless network

A post about Those Darlins was mysteriously removed

"Cry me a river," you might say, if the affected bloggers were all simply pirates. But many musicbloggers have now entered established symbiotic relationships with artists' publicity teams, receiving press releases urging them to post sample tracks that labels make available in order to drum up attention for new bands or releases. Just this weekend, Spaulding lost another post, touting the band Those Darlins, which the band was so pleased with that they saw fit to link it from their MySpace page.

So why are bloggers being targeted for posting legitimate, band-approved tracks? Part of the problem is that the complaints sometimes come from international rights holders or their representatives, such as the International Federation of the Phonographic Industry, an aggressive user of C&D notices. The US rights holder may have provided the track, says Spaulding, but "people in England or Frankfurt are saying we don't recognize your ability to give away that music."

According to Fred von Lohmann, an intellectual property attorney with the Electronic Frontier Foundation, this presents an "unsettled question" for both bloggers and providers. "Many countries, including the UK, have a 'making available' right for copyright owners," says von Lohmann. "As a result, those copyright owners frequently argue that anything that can be accessed in their country violates their rights. I think that's wrong—the making available right is territorial, just like every other copyright interest, and so it only applies if someone is making the work available in the UK (i.e., the server is in the UK). But I don't think any courts have definitively ruled on this issue."

Blogger's bind

Analysis of the DMCA statute itself, coupled with interviews with copyright holders who make use of its takedown provisions, provides some insight into why Google may have moved to a "takedown first, notify second" approach. For Shawn Gordon of Prog Rock records, who actively polices the Internet for piracy, the problem is not that Google is too quick to remove infringing content, but too lax: he complains that he'll identify a post linking to one of his label's releases, only to hear that the link has been removed—and then find it restored a few days later.

This presents a potentially tricky legal problem for Google. Typically, both licit and illicit music content is not hosted on the company's own servers, but on some third-party host, possibly located overseas, such as Rapidshare. And someone searching for MP3s generally won't immediately get results pointing directly to the hosted content, but rather to a blog post or discussion forum containing a link. Removing the actual content, then, is often a futile game of whack-a-mole for labels, because a file that's pulled from Rapidshare is likely to pop up on Mediafire or Megaupload minutes later. What matters, from the label's perspective, is whether a link to the file can be easily found by users on a page that shows up prominently in search results for a band or song. And because high-ranking search results draw plenty of user eyeballs, a dead link on a prominent blog post is likely to be quickly supplemented by a replacement link to another host in the comments.

Google, therefore, may find itself squeezed between two DMCA provisions: one covering content hosted "at the direction of users," and another covering liability for hyperlinks to infringing content. In theory, the safe harbor for hyperlinks is supposed to apply unless a ISP has been notified to disable access to a specific link. But for user-posted content, only a link to the URL where the infringing content is available is required. Moreover, while ISPs have no affirmative duty to monitor their servers for infringing content, they lose their safe harbor when infringement on a site is supposed to be "readily apparent."

Exactly what that requires is not itself "readily apparent"—as legal scholar Edward Lee notes in a recent paper, the scant amount of actual DMCA litigation has been "both a blessing and a curse," because it has allowed a variety of online speech to flourish, but left many DMCA legal obligations ambiguous. Blogger may reasonably fear that if it lets a user pull content in response to a C&D, it will forfeit their safe harbor if the copyright holder later returns to find a new link posted to the infringing content. That fear may be especially pressing because Google, with its fixed address and deep-pockets, is a tempting target for a suit alleging large-scale vicarious infringement, more so if the individual bloggers are often both pseudonymous and penurious.

Listing image by "The Trial," Milestone Film & Video