Tags: dmca




You never forget your first DMCA takedown notice. In my case it was the Perfect Pitch incident, in which an incompetent business was sending out automatic takedown notices to Google for any website that contained a combination of the words Burge Pitch Torrent. That situation, which affected The Session, was resolved with an apology from the offending party.

Now I’ve received my second DMCA takedown notice. Or rather, my hosting company has. This time it involves Huffduffer.

When I created Huffduffer, I thought about offering hosting for audio files. One of the reasons I decided not to is because of the potential legal pitfalls. As it stands, Huffduffer is pretty much entirely text—it just links to audio files elsewhere on the web. That’s basically what an RSS enclosure is: another form of hypertext.

Linking is simply the act of pointing to a resource, and apart from a few extreme cases, it isn’t illegal.

Now it could be argued that pointing to an audio file on another site through a Flash player (or HTML5 audio element) is more like hotlinking with an img element than regular linking through an a element. The legal status of hotlinking isn’t quite as clear cut as plain ol’ linking, as explained on the Chilling Effects site:

When people complain about inline images, they are most often complaining about web pages that include graphics from external sources. The legal status of inlining images without permission has not been settled.

So the situation with inline audio is similarly murky.

Here’s the threatening email that was sent to the hosting company:

Notice of Copyright Infringement. {Our ref: [$#121809/228552]}

Sender: Robert Nichol
AudioGO Ltd
The Home of BBC Audiobooks
St James House, The Square, Lower Bristol Road
Phone number not available

Recipient: Rackspace Hosting

RE: Copyright Infringement.

This notice complies with the Digital Millennium Copyright Act (17 U.S.C. §512(c)(3))

I, Robert Nichol, swear under penalty of perjury that I am authorised to act on behalf of AudioGO Ltd, the owner(s) of the copyright or of an exclusive licence in the work(s) The Moving Finger by Agatha Christie BBC Audio.

It has come to my attention that the website huffduffer.com is engaged in the electronic distribution of copies of these works. It is my good faith belief that the use of these works in this manner is not authorised by the copyright owner, his agent or the law. This is in clear violation of United States, European Union, and International copyright law, and I now request that you expeditiously remove this material from huffduffer.com, or block or disable access to it, as required under both US and EU law.

The works are The Moving Finger by Agatha Christie BBC Audio.

The following URLs identify the infringing files and the means to locate them.

https://huffduffer.com/TimesPastOTR/68635 (IP:

The information in this notice is accurate and I request that you expeditiously remove or block or disable access to all the infringing material or the entire site.

/Robert Nichol/
Robert Nichol

Wednesday April 18, 2012

Initially, my hosting company rebutted Robert Nichol’s claim but he’s not letting it go. He insists that the offending URL be removed or he will get the servers taken offline. So now I’ve been asked by my host to delete the relevant page on Huffduffer.

But the question of whether audio hotlinking counts as copyright infringement is a moot point in this case…

Go to the page in question. If you try to play the audio file, or click on the “download” link, you will find yourself at a 404 page. Whatever infringing material may have once been located at the end of the link is long gone …and yet AudioGO Ltd are still insisting that the Huffduffer page be removed!

Just to be clear about this, Robert Nichol is using the Digital Millennium Copyright Act—and claiming “good faith belief” while doing so—to have a site removed from the web that mentions the name of a work by his client, and yet that site not only doesn’t host any infringing material, it doesn’t even link to any infringing material!

It seems that, once again, the DMCA is being used in a scattergun approach like a machine-gun in the hands of a child. There could be serious repercussions for Robert Nichol in abusing a piece of legislation in this way.

If I were to remove the page in question, even though it just contains linkrot, it would set a dangerous precedent. It would mean that if someone else—like you, for instance—were to create a page that contains the text “Agatha Christie — The Moving Finger” while pointing to a dead link …well, your hosting company might find themselves slapped with a takedown notice.

In that situation, you wouldn’t be able to copy and paste this markup into your blog, Tumblr, Facebook, or Google+ page:

<a href="http://dc436.4shared.com/img/892695085/b3c907d3/dlink__2Fdownload_2FaKhc8m9b_3Ftsid_3D20120318-72646-b4a59ab0/preview.mp3">Agatha Christie — The Moving Finger</a>

Remember: that link does not point to any infringing material. It points to nothing but a 404 page. There’s absolutely no way that you could have your site taken offline for pointing to a file that doesn’t exist, right?

That would be crazy.

Burge Pitch Torrent

entreats us to:

Never attribute to malice that which can be adequately explained by stupidity.

While states that:

Any sufficiently advanced technology is indistinguishable from magic.

Mash them up and that leaves us with :

Any sufficiently advanced incompetence is indistinguishable from malice.

I have experienced a textbook case of extremely advanced incompetence.

When I wrote about the shenanigans of Perfect Pitch, in which a DMCA claim was used to remove a perfectly innocuous discussion on The Session from Google’s search index, I pondered about whether malice could be ascribed:

Could it be that the owner of perfectpitch.com sent a DMCA complaint to Google simply because another site was getting higher rankings for the phrase “perfect pitch”? If so, then that’s a whole new level of SEO snake-oilery.

In turns out that the correct cause is incompetence at a stunning level. I got an email from Gary Boucherle at perfectpitch.com who explained:

Periodically we’ve contacted Google to submit the following complaint:

We believe our copyrighted works have been illegally copied and made available for free download at the web sites listed below …

The following URL was one of hundreds of URLS (mostly torrent sites) found with the Google search terms Burge+Pitch+Torrent:


While we try to check every URL to make sure it either contains torrents, or is a torrent file sharing site (not the case with this site), it was included with our complaint inadvertently.

So here’s what’s happening: A company is doing a search for a phrase on Google, making a list of all the URLs returned by that search and then submitting that list to Google as part of a DMCA claim. Google then removes all those URLs from its search index without verifying any infringement.

I subsequently had a phone conversation with Gary and he was quite contrite about his actions— although he did try to claim that the mere mention of torrents in an online discussion might be justification for a take down (a completely indefensible attitude).

The more I talked to him, the more I realised that he simply had no idea about the DMCA. He was completely oblivious to the potential consequences of his actions were he to lose a counter-claim in court.

Gary Bourcherle abused a piece of extremely poor legislation in a scattergun approach without even understanding what he was doing. It’s like putting guns into the hands of small children.

Well, Gary is very sorry now and promises he won’t do it again. He is going to contact Google and ask them to reinstate the discussion on The Session in the search index.

Here is an official statement of apology, sent by email for redistribution here or anywhere else (try to ignore the bits where The Session is referred to as “a blog”):

To All Readers:

Here at PerfectPitch.com we made a big mistake.

We instructed Google to block a blog site 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. 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. 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:


Again, please accept our sincere regrets for this goof.

Happy blogging, everyone.

Sincerely yours,
Gary Boucherle

Contact: http://www.PerfectPitch.com/contactus.htm

Apology accepted. Now don’t do it again.

No word from Google on their “obey first, ask questions never” approach to DMCA claims.

And if you thought the DMCA was a bad piece of legislation, just wait till ACTA arrives.

Now, if you’ll excuse me, I’m off to change my email signature to “Burge Pitch Torrent.” It has a nice ring to it, don’t you think? Like “”.

Perfect Pitch

We were having a chat in the Clearleft office today about site stats and their relative uselessness; numbers about bounce rates are like eyetracking data—without knowing the context, they’re not going to tell you anything.

Anyway, I was reminded that I have an account over at Google Webmaster Tools set up for three of my sites: adactio.com, huffduffer.com and thesession.org. I logged in today for the first time in ages and started poking around.

I noticed that I had some unread messages. Who knew that Google Webmaster Tools has a messaging system? I guess all software really does evolve until it can send email.

One of the messages had the subject line Blocked URLs:

For legal reasons, we’ve excluded from our search results content located at or under the following URL/directory:


This content has been removed from all Google search results.

Cause: Somone has filed a DMCA complaint against your site.

What now?

I visited the URL and found a fairly tame discussion about Perfect Pitch. Here’s the only part of the discussion that references an external resource in a non-flattering light:

I think that is referring to www.PerfectPitch.com. I’m not saying anything about such commercially-oriented courses because I don’t know them, but I think we’d all be wise to bear in mind the general comments voiced in the first two posts on this thread.

That single reference to a third-party site is, apparently, enough to trigger a DMCA complaint.

Google link to the complaint on Chilling Effects but that just says The cease-and-desist or legal threat you requested is not yet available. It does, however, list the party who sent the complaint: Boucherle.

By a staggering coincidence, Gary Boucherle of American Educational Music, Inc. is registered as the owner of perfectpitch.com.

So let’s get this straight. In a discussion about perfect pitch, someone mentions the website perfectpitch.com. They don’t repost any materials from the site. They don’t even link to the site. They don’t really say anything particularly disparaging. But it all takes is for the owner of perfectpitch.com to abuse the Digitial Millenium Copyright Act with a spurious complaint and just like that, Google removes the discussion from its search index.

To be fair, Google also explain how to file a counter-complaint. However, the part about agreeing to potentially show up in a court in California is somewhat off-putting for those of us, like me, who live outside the United States of America.

There is another possible explanation for this insane over-reaction; one that would explain why the offended party sent the complaint to Google rather than going down the more traditional route of threatening the ISP

The Session has pretty good Google juice. The markup is pretty lean, the content is semantically structured and there’s plenty of inbound links. Could it be that the owner of perfectpitch.com sent a DMCA complaint to Google simply because another site was getting higher rankings for the phrase “perfect pitch”? If so, then that’s a whole new level of SEO snake-oilery.

Hmmm… that gives me an idea.

If you have a blog or other personal publishing platform, perhaps you would like to write a post titled Perfect Pitch? Feel free to republish anything from this post, which is also coincidentally titled Perfect Pitch. And feel free to republish the contents of the original discussion on The Session titled, you guessed it: Perfect Pitch.

Update: Thanks for inbound links, everyone. The matter is now being resolved. I have received an apology from Gary Bourcherle who was being more stupid than evil.