Judo Paris Grand Slam 2010. Image: flickr/ryusha

Now if I got an email explicitly saying “you’re breaking our rules and we’re going to shut you down” then I would react immediately but apparently these bloggers missed this chance. I’m sure Blogger’s TOS states that they have the right to delete violating blogs, and to protect themselves legally they delete them. But I find it hard to believe Google didn’t warn them. I think the bloggers had to have known they were in a legal gray area. They should have exported a backup of their blog.

The DMCA’s ‘safe harbors’ for online service providers give linkers a strong incentive to remove links upon receiving a DMCA takedown notice, because if they do so, they are protected from paying damages in any copyright infringement case. (EFF attorney Fred von Lohmann via BoingBoing in 2006)

Regardless of whether we may be liable for such infringement under local country law or United States law, our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers. 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. (Google)

We need better laws surrounding internet music journalism that reflect today’s Internet behavior. We need better education regarding copyright so that writers know how to properly license intellectual property. Oftentimes music bloggers have gained permission to include mp3′s directly from the artist or their record label. The same may even go for some YouTube videos that have had their audio removed due to “copyright infringement.” Is anyone asking the artists or contacting the uploader first? Who exactly is making the complaints? Theoretically the DMCA criminalizes anti-DRM tactics and copyright infringement. In practice, is it working—or rather—is it worth it?

The trouble with filing a formal, legal DMCA counter-claim is, that most bloggers don’t know how. What’s more, many of Blogger’s DMCA notices allegedly omit the name of the offending song. Bloggers aren’t even sure what they are denying. (The Guardian)

From what’s being talked about from the blogs that did have their content removed, it sounds like the newer system (unlike the old system) did alert them to what was happening, but they just felt hopeless to respond. Google has put up a response, basically saying that if it doesn’t receive a counternotice, and it keeps getting DMCA takedowns on the same account, eventually it takes the blog down as a “repeat offender.” So we’re back to the point that I predicted in August, where your average everyday blogger has no idea what a DMCA counternotice is and how to use it — so it would be much better if Google made the process of filing such a counternotice a lot more intuitive. (Techdirt)

In order to prevent any legal confusion, I would include a disclaimer making it painfully obvious that that the artist (or label) gave permission to have the mp3 on the blog. Even better, I would use legal embedding tools such as Bandcamp, Soundcloud, or Grooveshark as opposed to a direct link to an .mp3 file. This saves bandwidth and covers your a**. In the case of Bandcamp, you would be helping the artist because Bandcamp downloads usually require an email address and ZIP code giving bands a direct connection to their fans and valuable location data. I think most Bandcamp artists would happily issue free download codes to mp3 bloggers. Another route would be to use Creative Commons-licensed content—there’s plenty of CC-licensed content on Jamendo.

All that said, the best solution is to set up a blog on your own domain with an opensource blogging platform like WordPress. But even still you should backup your posts. Blogger and WordPress both support exporting (backing-up) into a transferable .xml file. Mini-blogging platforms Tumblr and Posterous are also good free alternatives—Posterous supports transferring from another blog but I don’t think Tumblr does yet. See Mashable’s head-to-head comparison. Squarespace is a paid service that supports importing and is also worth considering as an out-of-the-box solution.

If you’re already using WordPress on a WordPress.com blog, I recommend buying your own domain and hosting. You remain in more control that way. Buy your hosting separately from your domain though—most domain registration services offer cheap hosting that sucks as an upsell. It’s worth paying for good hosting. Of course the DMCA could issue a complaint to you through you or your host, but it’s less likely and the complaint would be more direct to you and not through a 3rd party.

Update 2/12/09: Last night Google put back one of the deleted blogs and updated their response: