Is There Any Way To Be A Music Blogger Without Risking Takedown?
from the not-really dept
Last week, we wrote twice about the Google music blog mess, which caused many people to falsely attack Google for its policies in dealing with takedown notices. While it is true that Google could do a better job in communicating and potentially in fighting for its users, the real problems are that the DMCA makes this very difficult for Google (and potentially very risky) and the big recording industry lawyers seem totally disconnected from what the same label marketing folks are doing.Now, the EFF has weighed in to look at whether or not it's even possible for any music blogger to avoid this sort of scenario and has concluded that the answer is basically no, it's not. Many music bloggers jumped ship to other hosting firms, but as we noted in our original discussion on the topic, those other hosts will face the same exact issue when they start receiving takedown notices, and may be even less receptive to sticking up for music bloggers or less helpful in explaining to them how to file counternotices.
The EFF does shed some light on one interesting aspect of all of this. Many of the takedowns were filed by the IFPI, who seems to claim that the takedown notices are not technically DMCA takedowns since the IFPI is not a US-based organization, and thus, it doesn't need to follow the DMCA's rules (such as specifically designating which files are infringing):
Ordinarily, the party issueing the takedown notice would be required by US copyright law to specify which content is being accused. But, as an international organization headquartered in London, IFPI is arguing that it doesn't even need to play by the USA's rules. "We neither admit nor accept," they write, "...that Google is entitled to be served a notice in compliance with the DMCA." Translation: IFPI is essentially threatening to sue Google under some unspecified foreign law -- presumably one which lacks even the modest safe-harbor provisions available in the USA. It's no wonder Google felt the need to take drastic action to avoid liability, even at the expense of the resulting headaches and bad press.While, yes, I can understand why Google might want to avoid yet another lawsuit in some foreign country (it's already dealing with a bunch of those), you would think that the company might be better off responding with a simple: "we are based in the US, the content you are complaining about is hosted on US servers, we abide by US law, and unless you follow the DMCA's rules for an official takedown notice, we will not be taking down the content."
Either way, the bigger (and more important) point is that pretty much anyone who blogs about music may face this sort of situation at some point or another -- even if you have explicit permission to post those tracks. The process that the IFPI, RIAA and others go through to demand takedowns is so automated and so disconnected from any marketing people (or common sense around marketing) that lots of people will receive them even though they should not. At some point, perhaps, the labels will recognize this is a mess of their own making, but it seems like we're still a long way from that day.
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Filed Under: blogs, copyright, dmca, music blogging, takedowns
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Redundant
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Re: Redundant
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Hardly surprising...
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By design
The harder the maximalists turn the dial up to MAX, the more the people (whose cultural liberty is so unjustly suspended) will squeal.
Abolition gets ever closer...
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Who is everyone?
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I'll eventually get thrown off the air
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Why must bloggers post actual music files?
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Re: Why must bloggers post actual music files?
So, if BT sites are getting into trouble even though they're just posting links to files, not hosting the files themselves, what makes you think that there'd be any safety in linking to a link? Just because it's one degree farther away from what the BT site does wouldn't mean that someone couldn't get you on some contributing charge.
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How bad it can get
Believe it or not, since I started this blog, I've received TWO threatening letters from music industry lawyers, one telling me to take down MY OWN music and another saying that I was running an internet radio station and owed license fees.
One of the other musicians I play with is a lawyer and he was able to get it straightened out pretty easily, but this is the kind of extortion that the music industry is now engaged in.
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This is simple. Any music blogger should simply obtain licenses from ASCAP, SoundExchange, and BMI and he's good to go.
I'm sure the blogger will claim that he should not have to purchase such licenses because he's promoting the music and giving the labels and the artists free exposure, but that's not his choice to make. No one has any right to promote a third party's copyright.
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Of course, thank you.
"then this should fall under fair use..."
Fair use is a defense, not a right.
"...shouldn't need the same licenses required to play the full song."
That's for a court to decide.
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You're joking right? You've been around here long enough to know that in the US, the COURTS have ruled that Fair Use is a RIGHT.
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However, fair use is only available as a defense. Fair use doesn't come into play until copyright infringement occurs.
Logically, if there's no copyright infringement, there's no need for a defense of fair use.
However, aside from the special case where copying constitutes a violation of privacy, everyone has a right to copy as part of their natural right to liberty. That liberty was derogated to grant an unjust monopoly for the benefit of printers in the 18th century.
Copyright is ripe for abolition.
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"No one has any right to promote a third party's copyright."
Are you kidding? Anyone has absolutely every right to "promote" whatever the fuck they like. Crawl back under your bridge buddy.
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I read no further than this and must comment. The choice of the word "seem" is totally inappropriate. More accurately stated, the word should be "are".
In many large corporations the law departments operate as an autonomous unit that waits for "problems" to come to it instead of the persons in such departments getting their a**es out of their offices, talking with people (at all levels) in all of the corporation's functional areas, and (dare I say it?) actually listening and taking the time to learn how the various functional areas operate, and establish close, real time lines of communication all areas at all levels.
There appear to be two types of lawyers within corporate law departments, those who believe their job is to "prevent liability" at all costs (including asserting rights in cases where molehills are thus turned into mountains), and those who believe their job is to help the corporation pursue its business goals in as easy and expeditious a manner as possible. Any rookie can do the first job. It takes someone who understands the business from top to bottom and back again to do the second.
Unfortunately, it seems that rookies predominate by a very large majority.
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I have an idea
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Re: I have an idea
Google is definitely a guy, but he cross-dresses on weekends.
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The conclusion of "basically no" sounds a lot like "I can't do it my way, so it can't be done at all. The bad man took my ball!"
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"we are based in the US, the content you are complaining about is hosted on US servers, we abide by US law, and unless you follow the DMCA's rules for an official takedown notice, we will not be taking down the content."
The problem with the suggested response is that Google is an international company and there should be lots of jurisdictions where it is vulnerable. See the current case about Italy prosecuting Google execs based in Italy for YouTube content, content which was taken down almost immediately upon notification.
Also, while a US-based blogger may have been given the tracks in an authorized manner, I'll bet that the authorization does not extend beyond North America, while the blog's reach is global. Even if the band gave Blogger Joe a track, I bet the regional licensing means that the track is only authorized to be distributed within the blogger's home market. The blog probably reaches lots of territories where the track, even if supplied by the band or its US label, is not authorized for distribution, and where the blog hoster (Google in this case) could be sued.
(This is fiendishly brilliant on the part of the IFPI. It does reinforce my oft-stated conviction that the future of music is all pirate, all criminal, all the time.)
Conversely, for music bloggers who move to a US-only hosting operation, it might be that at least the hosts & bloggers will only have to respond to DMCA-conforming notices, which at least will specify what files are being complained about.
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Evil
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Don't host music, roll your own CMS.
Don't bother hosting MP3s yourself unless you're capable of running some variety of media server (Flash? Windows? whatever) - if you're a blog, focus on LOGGING (i.e. writing) and you'll be sure to outlive so-called blogs that serve to host downloads.
Look at Pitchfork, for example. Did they get popular because they hosted MP3s?
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What if you block download capability?
Anyone know the answer?
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