PerfectPitch Owner Apologizes For DMCA Notice, Explains What Happened

Gary Boucherle, the owner of the website and product PerfectPitch, sent us an explanation of why he got Google to remove links to mentions of his product on another person’s blog.

The short version: Jeremy Keith’s blog was accidentally lumped into a list of blogs being reported to Google for mentioning pirate copies of PerfectPitch, and Boucherle apologizes for the mistake.

Here’s what he sent us (I’ve added the links):

Official Statement from PerfectPitch.com

Re: Google DMCA Removal of a Blog Page

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.

Again, please accept our sincere regrets for this goof.

Happy blogging, everyone.

Sincerely yours,
Gary Boucherle
PerfectPitch.com

Keith over at Adactio has posted a follow-up report, which includes part of another email from Boucherle that explains what happened in greater detail

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:

http://www.thesession.org/discussions/display/21250

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.

Keith says he then had a phone call with Boucherle where they discussed things like takedown notices and using the DMCA to protect your copyright, and how it can blow up in the aggressor’s face if used incorrectly:

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.

About that counter-claim example: Diebold was found to have violated section 512(f) of the DMCA, and ordered to pay $125,000 in damages and fees—which is something you may want to point out to anyone who misuses the DMCA against your own online content in the future.

“Burge Pitch Torrent “ [Adactio]

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Comments

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  1. delphi_ote says:

    So did you fire that employee or discipline him? Will you be changing anything about your policy of just throwing stacks of URLs at Google to be permanently banned? You’re not going to change any of your policies that potentially restrict other’s free speech, because this was just a “goof”?

    Sorry, PerfectPitch, you’re NOT forgiven. It doesn’t seem like you take this very seriously!

    • Snowblind says:

      @delphi_ote:

      The matter is being taken *very* seriously.

      Dick Butkus will be giving the employees a motivational speech on the issue.

    • PSUSkier says:

      @delphi_ote: Oh come on, they used the term “shock and horror.” HORROR!

      /I agree, but at least bonus points for finding a synonym for “taking it seriously.”

    • winshape says:

      @delphi_ote: Is Perfect Pitch a governnment-run program? Is Google government run? No? Then there is no infringement of freedom of speech. Private companies can do whatever they want, your 1st amendment rights only apply to government.

      PP apologized, and corrected their original mistake. Move on already.

      • ben says:

        @winshape: No, but they were using a law to do it. They didn’t ask Google to “pretty please, take down the link to that site.” They used to DMCA to do it.

      • justsomeotherguy says:

        @winshape: I think you are confused. By using the legal system (the DMCA) this person was able to force a company to remove material. Had google taken down the content on its own then you would be correct in you line of thinking, but it was forced to do so due to the law. Before asking someone for an apology please get reality straight.

    • Megalomania says:

      @delphi_ote: The employee was just trying to do what he was told. Firing someone is completely out of proportion to what happened. It was a simple screwup, it’s fixed now, so move on unless it happens again.

  2. Awjvail says:

    I dunno.. I kind of get the feeling that this was done on purpose and they are feeling the burn for it now so they’re trying to say it was an “accident”.

    I can’t quite put my finger on it, but.. yeah.

  3. Nighthawke says:

    Ouch. Perfectpitch should have had a lawyer in on that conversation. He might be in serious trouble over his lack of knowledge on the true use of DMCA. If I were the blogger, I’d go gunning after him for abusing the law, defamation, libel, the list goes on. If done properly, he might wind up putting PP out of the biz.

  4. vastrightwing says:

    This is exactly why Google and Amazon should not “honor” copy rights holders requests. It should not be up to Google or Amazon to be police and to take action against rogue violators. Google is a listing engine and Amazon is a book seller. Google should index the internet for any content it finds. Amazon should be able to sell any book made available to them. If the copyright holder has a problem, they should direct their wrath towards the real perpetrator and not the search engine and book seller. This would end this copyright enforcement Barbara Streisand.

    • rickn99 says:

      @vastrightwing: Really? Amazon should be able to sell any book whether it’s a legal copy or not? Under that logic, why not extend it to every store? Why make Amazon special?

      For example, let car dealers sell stolen cars. If the title holder has a problem, they should direct their wrath to the real perpetrator and not the car seller, to quote yourself.

      • Duke_Newcombe-Making children and adults as fat as pigs says:

        @rickn99: Um…I think you’re overthinking it a bit. Vastrightwing didn’t say let lawlessness abound–just that Google should not be in the arbiter or “policeman” role in enforcing DMCA. That’s what courts, judges, and juries are for.

  5. SarcasticDwarf says:

    “While we try to check every URL to make sure it either contains torrents, or is a torrent file sharing site” – Interesting. So you could link to a hello kitty .gif but name it perfect pitch and get your site taken down. By their own admission they are NOT actually checking to see if it is their content being distributed.

    • shepd says:

      @SarcasticDwarf:

      Considering the penalties for a false accusation, checking it twice should be the very minimum you’re doing.

      I think it’s high time more people were prosecuted for perjury. Hit them up with some million dollar fines and people will start using these laws only when necessary, like they should be used.

  6. shepd says:

    We recognize this was a careless error, and there is really no excuse for this.

    No, this isn’t a careless error, it is a felony.

    People need to read what they are sending out before signing it. Using the DMCA under false pretenses is a felony.

  7. BrazDane says:

    “To our shock and horror..”.

    More likely: “To our complete indifference” right up until the guy actually managed to gain some traction with his complaints.

  8. kylere says:

    Having actually looked at their course content, they are lucky people pirate it, no one sane would pay for it in my humble opinion.

  9. Decubitus says:

    So is this Consumerist article now going to be de-indexed from Google because it mentions “Burge+Pitch+Torrent” at least twice (including this comment)?

  10. 420greg says:

    The picture of the guy wearing headphones on the bottom of his order page is stolen from xmradio.com.

    How Ironic.

  11. krispykrink says:

    blah blah blah….

    Who’s going to nutt-up and do time in jail for abusing the DMCA take down provisions? Congrats to PerfectPitch for making it to my boycott for life list, you’ve joined the ranks of Sony who included rootkits on music CD’s, and a too long to list assortment of others that abuse the DMCA take-down provisions.

  12. There's room to move as a fry cook says:

    AFAIK linking to warez (as the blog was doing) is as bad as hosting warez. Linking to warez is against the TOS And AUP of most web hosting companies.

  13. Jimbo says:

    So funny how Perfect Pitch exercises no real care when using powerful laws to remove someone else’s speech and chalk it up to a goof…..Opps sorry (just violated your First Amendment Rights)! If they actually respected the law and appreciated its true purpose, they would have used the utmost care to scrutinize each link submitted. I hope they get sued and fined for their actions as there is no excuse for their laziness. It scares me to hear how people can just email google a list of stuff they don’t like and its gets removed with virtually no recourse and a huge burden on the victim to prove it wrong. Let the person attempting the limit your rights do all the proving and legwork as they are the one wielding the power and it should never go unchallenged.

  14. celeb8 says:

    What, no credit for pointing this out earlier?

  15. Julia789 says:

    @FatLynn: I thought “Shock and horror” was more appropriate for a plane crash, war zone, or brutally murdered family.

    “Great surprise” might have been a better choice.

  16. gover57 says:

    @Julia789: Yeah, i thought the same when i read that line… really…you felt horror? REALLY?!?!?! My guess is someone’s taking the thesaurus use a little too far…

  17. shepd says:

    @rickn99:

    DMCAing someone without specific knowledge they are, in fact, pirating your stuff is perjury. I’m relatively certain perjury across US states would be a felony, but if you can prove me wrong, go ahead.

    Here’s a sample DMCA form (In fact, very certainly the one that PerfectPitch used, considering we’re talking about Google), and here’s a quote:

    Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

    If that statement is missing, Google will ignore your DMCA request. The fact that Google didn’t ignore it is proof it was there. The fact that Google requires it shows that the DMCA itself requires it, because Google doesn’t want to make DMCAing easy.

    Q.E.D.

  18. Duke_Newcombe-Making children and adults as fat as pigs says:

    @IfThenElvis: Google is required to take down content if they receive a valid DMCA notice.

    So, someone has to determine that the DMCA notice is valid. And exactly who does that? Google–therefore, they are an arbiter.