Last week, in what's been called #musicblogocide2k10, Google's Blogger service shut down several popular blogs accused by the IFPI and RIAA of copyright infringement. Due to a bug in Google's system (for which Blogger later apologized), at least one of the bloggers (the amazing Masala blog, which has since been restored) did not receive notification until after the blog's deletion.
Sure, you can blame Google for that error. But you can't really blame them for following the Digital Millenium Copyright Act to remove allegedly infringing content. As part of Bloggers' DMCA policy Google forwards their takedown notices to ChillingEffects.org where they are available for all to see. Chilling Effects is an incredibly useful resource conceived by Harvard's Berkman Center for Internet & Society (who also advise our work on the Free Music Archive) in collaboration with a group of university law clinics and the Electronic Frontier Foundation. Check it out, and you'll find myriad DMCA copyright complaints like this one, each listing hundreds of allegedly infringing Google-powered blogs, and claiming that Google may be liable. Google has no choice but to remove this infringing content, and from there the alleged infringer can file a counter-notification.
This back-and-forth DMCA procedure is far from perfect. But it's designed to protect online service providers like Blogger, who can't possibly be expected to look into each and every one of these claims. It's up to bloggers to defend themselves, and (as long as they are properly informed) there's a relatively clear way to go about it. This way, the inevitability of infringing content doesn't have to take the entire blogging service and all its non-infringing treasures down with it.
Let's leave Google alone for a second (they've got other problems right now) to consider "the inevitability of infringing content." There is still a great disparity between the law and the other codes/norms that govern the blogosphere, and musicblogocide is a great example of how this plays out. Before you read on, take a look at the above diagram from Free Culture, in which Lawrence Lessig describes the law as one of four regulatory/enabling forces acting on...let's say...the blogosphere.
As far as the Market goes, music blogs clearly have promotional value. "Many blogs are now wined, dined and even paid (via advertising) by record labels", noted Paid Content in their #musicblogocide2k10 coverage. Aside from the blogosphere's ability to break buzz bands, music blogs offer an important cultural forum. Take the aforementioned Masala blog for example; a bilingual musical mecca that inctroduced the world to Haitian hip-hop and The Justin Timberlake of Bhangara, and helped popularize Baile Funk and Kuduro. Blogs also revive and archive music that is no longer available for purchase; at this point it seems like every rare gem of a record has already been digitized by one blog or another, and so the blogosphere functions as a free online library for material that would not otherwise be available. This is the potential of the digital era, the "Architecture" part of above diagram.
Then there's the Law. The RIAA's Piracy guide claims that "even swapping your files for someone else’s, as in MP3 trading, you can be sentenced to as much as 5 years in prison." Other than a few cases of leaked pre-release material, this hasn't really been tested.
So the blogosphere has developed its own set of Norms. For example, Said the Gramophone, one of the first blogs to get a Cease and Desist, has a pretty typical disclaimer that reads "mp3s are for sampling purposes only. All tracks are posted out of love. please go out and buy the records!". They remove mp3s after 2 weeks (in part due to hosting bills, in part to minimize the legal risk), and add "if you are the copyright holder of any song posted here, please contact us if you would like the song taken down early." Excavated Shellac, an mp3 blog (and FMA curator) specializing in rare international 78rpm records that are not otherwise available, posts music "for research purposes only".
These norms were developed in tandem with the interests of the mainstream music industry, who've been courting blogs for going on six years now (here's a cool article on the subject from 2004). Record labels often designate a couple tracks off of each album as their blog-safe tracks -- sort of a radio single for the Internet era. So the norms have extended to the industry...or so it seemed.
One of the most disturbing revelations of the musicblogocide is this one from deleted blog I Rock Cleveland: "Of all the claims filed against me in the past year, each and every one of them were for tracks provided by the record label with permission to use that track for promotional purposes." So the "infringing" content had been cleared, but the trade organization that represents over 1,400 major and independent record companies didn't get the memo. Why should they? Their whole approach to digital music in 2010 is, to quote TechDirt, Piracy Bad!!! Government Must Fix Because We Don't Want To Adapt!
In a pointed article, the Electronic Frontier Foundation calls this "the latest example of the widening disconnect between the goals of the music industry's promotional wing and its enforcement wing," part of a series of gaffes that include restricting the embeddability of the most recent music video by the formerly viral band OK Go (great Future of Music Coalition article on that).
Wouldn't it be nice if every allegedly blog-safe mp3 were actually cleared for this type of promotional use under a Creative Commons Music Sharing license, AND registered with a database of blog-safe mp3s so that they didn't pop up in the RIAA-bot takedown notices? If Law, Norms, That's the dream...
MUSIC BLOGGER-CIDE RESOURCES:
Citizen Media Law Project: Google's MP3 Blog Removals: Bloggers, It's Up to You
Electronic Frontier Foundation: Music Journalism is the New Piracy
Wired/Eliot Van Buskirk: Dumb Labels, Laws (Not Google) To Blame for Music Blog Deletions
oh and hey you can download the whole Free Culture book here