Potential Blog Problem? Hopefully not...

Blog administrators - please see below. Shouldn't be a problem for us, but maybe it's something we should be aware of.

Tom


Free Association: Sound of Silence
By Larisa Mann, November 28, 2008

from wiretap.org
Music bloggers beware: Your posts could vanish without warning.


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Music blogs are engines for fandom, DJ culture and music making. They range from websites featuring news, links and commentary run by individual fans, to label-run sites promoting similar sounds and scenes. Music blogs may also include producer coalitions that promote music as part of an ongoing culture of participation. Finally, there are blog aggregators that report on what's hot and online music magazines with formal articles that include links to the music that they discuss. Many feature actual streaming or downloadable audio files that allow the reader to hear what all the fuss is about.

At minimum, a music blog might consist of basic lists or links to hot or obscure tunes, like a mixtape or playlist. But at maximum, many blogs provide fascinating context for the music they post, from scholarly analysis on a particular music element to a devoted fan's impassioned history of a tiny subgenre, or even a wide-ranging set of thoughts on a musical theme.

Although blogs serve various creative purposes, they are above all social spheres. By posting links, entries and search functions, music blogs promote and embody a lively culture of interaction. Music blogs can also help artists. One anonymous blogger points out, "People like myself discover new music through these blogs, which often leads to album purchases, and even more often to support of the artist's concerts, merchandise, etc." Other blogs focused on DJ culture have new electronic artists post their work for feedback -- an important step in developing artists and music scenes.

Missing Links

But now posts are disappearing. The trigger for deletion appears to be MP3 audio file links that possibly violate copyright law. However, many blog sites go far beyond simple link lists, including commentary, images and bloggers' own creative work alongside music. The blogger's original work, also covered by copyright law, often disappears along with the problematic link.

Apparently, some people's intellectual property matters more than others!

Even stranger, some deleted links were given to bloggers by artists and labels explicitly for promotional purposes. As another anonymous blogger told me, "On the one hand record companies use blogs to help them sell records, and on the other hand, persecute blogs for it."

It also seems that one branch of the music industry doesn't know what the other one is doing. Linda, author of a small Southern California-based music blog, explains,


"I e-mailed my contact at the label of a band for whom I wrote an album review that was deleted. I told him which songs I posted and asked if I had done something that prompted the label to request a takedown. He denied that the label would have done that. I e-mailed another contact at a PR (public relations) firm regarding another album review that was deleted. The PR had sent me the album to review! They denied having any part in a takedown."

The Google-owned blog-publishing system, Blogger, has e-mailed bloggers after the fact, informing them that their posts were taken down because they contained a link to material Blogger has learned infringes copyright. But in other cases, entire posts have disappeared with no communication. Most bloggers have not been told which link in a multiple-link post is problematic.

When Blogger has notified music bloggers, they've cited the Digital Millennium Copyright Act (DMCA), an unwieldy mishmash of compromises between the content and tech industries. The DMCA is supposed to protect middleman technology companies like Google ("Internet Service Providers" or ISPs) from lawsuits over what their users do. To avoid lawsuits over content that users post, ISPs must not create or edit content but simply host it, and must take down content when an owner says it infringes their copyright.

Bloggers can technically use the DMCA to fight back if they think their use is legal, by filing a counter-notification. In the best scenario, this would mean the copyright holders and the people who upload copyrighted content can duke out the issue themselves while the ISPs stay out of it.

However, Blogger hasn't given bloggers the tools they need to defend themselves. Counter-notification can only happen after Blogger registers takedowns online. But, as Linda pointed out, since Blogger has not yet registered any complaints, "There is nothing for me to 'counter'. I have no idea who I have offended or how."

Blogger's own code of conduct says, "If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter notification." Since when is no notice a good-faith effort?

Even if Blogger complied with its own policy and the DMCA, that might not be enough. Linda points out the asymmetry of the legal battle: "The direction[s] for filing a counter-notification includes agreeing to pay all legal fees if I am found in the wrong. Without knowing what I am defending myself against, how can I possibly agree to such terms? Is it realistic for me, someone whose blog earns no money, to retain a lawyer?"

The system is biased in favor of those with plenty of cash and their own lawyers on staff. Luckily, in the US, we have a legal defense that would cover many music blogs -- at least those that discuss, educate, criticize and comment. These could qualify for fair use protection, which does allow people to make use without permission of copyrighted works in ways that benefit society.

Although many bloggers, DJs and musicians I spoke with said that some blogs don't play fair, they all emphasized the overall benefit that music blogs provide to artists and the public. "There will always be pirates," said one blogger, label owner, producer and DJ. "File-sharing, mash-ups, and DJ mixes are all part of a huge explosion of musical creativity. We're living in a time in which people are exposed to more new music than ever before and it's the free flow of information that's driving this push forward."

Unfortunately, it looks like Blogger may have made a private deal with content owners to automatically remove posts that owners complain about, rather than going through a transparent process with room for discussion. While this may not be illegal (although we should be concerned about the effect on our fair use rights), this is exactly why we can't trust private companies to administer our culture fairly: They can make deals with other private companies without public input.

And why should we trust the content industry to make the rules when it doesn't play fair? There's a long history of baseless and debatable copyright complaints. If these companies have Blogger's ear and don't consider input from the public or users, they can basically define our access to works with no accountability.

What About Author's Rights?

Worse yet is the fact that music bloggers' own original material is being deleted. Even if some links in a post are not fair use, two wrongs don't make a right. Google has made its name by promising to do right by its users and the data they host for the public. If they keep deleting our own creative works, why should the public trust them?

Blogger is a private company, but it provides public services similar to those offered by libraries, archives and broadcasting. It's a growing problem in the internet era: These private companies, controlled only by private law, have the ability to run their businesses with little or no respect for the public.

Google recently made a deal with book publishers over access to scanned books for Google Book Search. We have to be vigilant that they don't snub the reading public the way they are currently dissing the listening, writing and remixing public on Blogger.

(Author's Note: Only one blogger agreed to be identified for this column. Others say they are concerned about being further targeted. So much for "Don't Be Evil"!)

Larisa Mann writes about technology, media and law for WireTap, studies Jurisprudence and Social Policy at U.C. Berkeley and djs under the name Ripley. She is a resident DJ at Surya Dub, San Francisco, and collaborates with the Riddim Method blog-DJ-academic crew, Havocsound sound system, and various other cross-fertilizing organisms in the Bay Area and worldwide.