shipment-of-failSo, a week ago I wrote about this page on The Session getting pulled off Google because of a DMCA complaint lodged against their site. The company in question, who I still won’t link to, has discovered the Streissand Effect.

I received an email from them, as I am sure everyone else who contributed to this effort did, offering a thousand apologies for their actions, and assuring me that it was all a big misunderstanding. Jeremy Keith has since accepted their explanation for events, and although I’m not so sure I do, I’ll give them the benefit of the doubt.

According to their mail, they periodically do a google search for the name of their product plus the term “torrent“.They then submit the resulting list to Google claiming a DMCA violation, as these sites must obviously be hosting illegal copies of their software. So it was a case of attempting to stem piracy, not to remove a site containing many instances of the term “perfect pitch” from the Google index.

As plausible as this explanation is, I have a problem with it. It seems clear that nobody is checking to see if the sites that turn up in the search results are actually infringing or not. For example, by including the phrase “boucherle pitch torrents“, there’s an excellent chance that they will launch a DMCA complaint against me. No one will be checking to see if I’m actually hosting any torrents, or if torrents are even being discussed.

Which brings me to my next point. The page on The Session that was pulled contains the following statement:

The David Lucas Burge one is available as a torrent.

That’s it. In the entirety of the discussion on the page, that’s the whole reference. It doesn’t encourage people to download it, it does not mention where one might find such a torrent, nor does it even debate the relative merits and morality of downloading torrents. It just says, plain and simple, “a torrent exists”. Which is probably a fact.

How is simply discussing torrents an illegal activity? And even if someone did link to a torrent in the comments (which they did not), the jury is still out on whether this constitutes an infringement. If there ever is a ruling to that effect, Google themselves will get sued into the ground. How many references to illegal torrents do you think exist in the Google Cache?

To give an analogy, it’s like the mere act of giving someone directions to a house of ill repute makes you responsible for what goes on there. In this case, no directions were given. Someone merely stated that the house exists. See why this is ridiculous?

Now, it could be – as they argue in their letter – that the employees of this company are merely hideously incompetent, and not actually evil. I am, in fact, inclined to believe that this is true. Which means they’re using the DMCA in an entirely cavalier manner on all sites that contain elements of their key search terms, without first checking to see whether their targets deserve the legal broadside they’re receiving.

But it also means that my original charge against them still sticks: if you accept their explanation as true, the boost they receive in Google rankings is an unintended (yet hugely beneficial) side-effect of their fight against piracy. And the fact that the tone of the discussion on The Session was largely uncomplimentary towards their product didn’t come into it at all.

Regardless, the apology letter is rather marred by a ham-fisted attempt to sell more copies of their training course at the end of the letter – at a discount, of course, because they feel bad about the terrible misunderstanding. Tacky, chaps.

In the interest of fairness, the full letter is quoted below, with links removed. I’m prepared to let them have their say, but not to use my site as a sales platform.

Here at [URL redacted] we made a big mistake.
We instructed Google to block a blog site [actually, The Session is not a blog] managed by Jeremy Keith, citing that they were in violation of the Digital Millennium Copyrights Act (DMCA). As per our request, Google did indeed remove this page from their search listings.
We wish to formally apologize to Mr. Keith and his bloggers for this mistake, for which we are deeply regretful.
Please understand that we had no intention whatsoever to suppress the speech on Mr. Keith’s page. Please know that we are ardent supporters and advocates of free speech for everyone.
We recognize this was a careless error, and there is really no excuse for this. Nevertheless, please permit us a moment to explain.
Here’s what happened:
We were actually submitting to Google a list of sites that were illegally distributing copies of our copyrighted intellectual property. We of course have every right to request that Google have these sites removed from their search engine results because we believe these sites violate the DMCA, which prohibits the illegal distribution of copyrighted materials over the internet.
To our shock and horror, an employee of ours mistakenly included Mr. Keith’s site in our list, merely because it made a reference to illegal copies of our course[not in the way you're implying]. Naturally, this is not grounds for removal of this page at Google. Our intention was only to remove actual pages where the course is being illegally distributed, and not any pages of free speech, such as Mr. Keith’s blog [The Session is not a blog]. This was a misjudgment and error on our employee’s side, and on behalf of our company, we sincerely apologize.
This event has never happened to us before when reporting illegal distribution of our materials. Please rest assured that we will redouble our efforts to ensure this never happens again.
We have requested that Google immediately reinstate this page in their search results, along with our apology to Google as well.
If we have offended any potential musicians who wished to purchase our best-selling, university verified ear training methods, again, we sincerely apologize. To make it up to you, we would invite you to try our courses at a substantial discount not offered to the general public, valid until the end of this month. Please go here to retrieve your special offer with our apologies:
[spam URL redacted]
Again, please accept our sincere regrets for this goof.
Happy blogging, everyone.
Sincerely yours,
Gary Boucherle
[URL redacted]