IFPI Files DMCA Takedown... On A Creative Commons Song... Posted 12 Years Ago.
from the really,-ifpi? dept
Let's take a trip in the wayback machine a bit.It's late October 2004, and Wired Magazine has just released its November issue, which has a cover story about how sampling is the future, in which the magazine was able to get a bunch of well-known artists to contribute Creative Commons licensed songs, which shipped with a physical CD (remember, this is back in the day) and were also posted online and free for people to share and to reuse and remix. The article about it is worth reading. It talks about the nature of creative artwork:
Building on what other musicians have done – with or without their blessing or collaboration – is what it takes to make new music, music that will delight and sustain people. That, after all, is why it's called making music (playing music is something else altogether). Elvis Presley, that pioneer of appropriation, put it best: "Fair exchange bears no robbery, and the whole world will know that it's true. If you wanna be hugged, well, you gotta hug me too."It also talks a lot about Creative Commons and the efforts it took to get all these well-known artists to contribute their songs. Hell, the very same issue even (shockingly) included an article by former RIAA boss Hilary Rosen, talking about how much she now loved Creative Commons, after Larry Lessig convinced her to change her views.
Lots of people wrote about all of this in one way or another. We, somewhat sarcastically (hey, what do you expect?) covered Rosen's conversion to being a CC supporter. Most of the coverage, however, focused (rightly) on the music. This included a young copyfighter named Derek Slater, who back in the olden days when blogs were blogs, wrote one on Harvard's website called A Copyfighter's Musings. He was so excited about the Wired issue and Creative Commons music CD that he wrote about it and posted the mp3s.
This was, of course, all perfectly legal. These tracks were released under one of two Creative Commons licenses, but both allowed the basic tracks to be shared online. As the Wired article noted:
The licenses come from Creative Commons, the innovative nonprofit founded by Wired columnist and Stanford Law School professor Lawrence Lessig. The songs on this CD use one of two Creative Commons licenses.The Noncommercial Sampling Plus license permits noncommercial file-sharing and noncommercial sampling. That means, first, that you can swap the songs on a peer-to-peer network (just don't sell them). And second, that you can sample from them, mash them up, use them to make something fresh – and then share that work, too (though again, you can't sell it). The Beastie Boys, Chuck D, and My Morning Jacket opted for the Noncommercial Sampling Plus license.Okay... enough reminiscing in the wayback machine. Fast forward to today, where record labels and their trade associations -- rather than helping the industry adapt -- are spending all their time whac'ing moles by sending pointless takedowns via automated systems that never bother to check the details. The IFPI -- basically the international version of the RIAA -- is particularly crappy at this, regularly caught sending totally bogus takedowns.
The other 13 artists on the CD went a step further and released their songs under the more expansive Sampling Plus license. Like the noncommercial version, it allows file-sharing. But it also allows commercial use of samples – meaning you can insert a slice of these songs into your own composition and then try to sell the new track. The only restrictions: Use in advertisements is not permitted, and the new work must be "highly transformative" of the original (translation: A flagrant rip-off like "Ice Ice Baby" doesn't cut it). More details on the licenses and their permissions are available at creativecommons.org/wired.
As you've probably figured out, that historical world and today's world have clashed. IFPI, in its infinite (and most likely automated) cluelessness, has sent Harvard a DMCA takedown notice over one of the songs in the Wired Creative Commons collection -- the song "One Big Holiday" by the band My Morning Jacket. You can get it here because it's freely available thanks to Creative Commons.
You would think (wouldn't you?) that before sending out takedown notices, folks like IFPI are supposed to check on the licensing situation around those songs and whether or not IFPI even has the right to send such a takedown. In this case, even if they control the copyright, they most certainly do not have the authority to send a takedown, because doing so violates the terms of the license which the copyright holder agreed to when the song was released.
Thankfully, Harvard passed the notice along to Slater, who had lawyer Lila Bailey (occasional Techdirt guest poster) respond on Derek's behalf, basically saying, "IFPI, WTF?"
By sending this notice, you have knowingly materially misrepresented that this content is infringing in violation of 17 U.S.C. § 512(f), resulting in personal harm and financial expense to my client. As a courtesy to you and without prejudice to any further action we may take, I am writing to inquire whether you wish to withdraw your takedown notice....Of course, as we've discussed in the past, 512(f) of the DMCA has been rendered mostly toothless by the courts, but a good case could potentially change that. And issuing a DMCA over Creative Commons released music seems like a good test case, yes? I'm guessing that IFPI will take back its bogus takedown notice, but one wonders if it will actually change how it sends these things...
[....]
Even the most basic investigation would have indicated that Mr. Slater's use is lawful and consistent with the Creative Commons license granted by the copyright owner. Under the United States Copyright Act, rightsholders are required to consider whether a use is lawful before issuing a takedown notice, and that requirement was plainly not followed here. This notice reflects an unfortunate pattern by IFPI, sending bogus takedown notices without any investigation into the rights status of the claimed works.
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Filed Under: 512(f), 512f, copyright, creative commons, derek slater, dmca, lila bailey, my morning jacket, sharing
Companies: ifpi
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Can't CC request the courts to examine this case to protect them from future annoyance (ie: if it happens again they can automatically go for 512(f) or simply disregard the takedown notice)? I mean, this is a case I'd throw my money to help set a good precedent.
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The copyright holder would definitely have standing:
1) they licensed the song under CC.
2) IFPI purports to be operating in the interests of the copyright holder.
My guess, though, is that the best the copyright holder could do is "breach of contract" or "tortuous interference". That latter might well be interesting to see played out...
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A precedent would be fantastic
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would be nice
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Would that we could pursue them to recover costs for the time wasted in reviewing a takedown notice we should never have been sent in the first place...
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The results of one-sided penalties
As it currently stands those sending claims can automate the process because there's absolutely no penalty for sending a bogus one, which means quantity will always be prioritized over quality, numbers over accuracy. Meanwhile those receiving them have to carefully examine each one to determine whether or not it's valid, and if so whether or not it's safer to just remove the content in question or risk legal troubles and keep it up.
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Funniest line of the week right there
Given rightsholders are also allowed to have bots send out claims, and last I checked bots can't 'consider whether a use is lawful', no actually there is not such a requirement to be met before sending out a takedown notice.
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Re: Funniest line of the week right there
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Shooting Themselves in the Foot
Service providers need resources just to maintain their service. These resources are procured as a service grows based on the size of the service, and so of course services should be able to at least handle the content on their own platform. If they couldn't do that, how did the service grow to where it is now? It (seems to) just make sense that the services should be responsible (read: liable) for this, because they are positioned in the right place (at the point of the infringement) with equipment that is clearly capable of handling the content on their own platform.
But then service providers push back. A service that mainly just does storage does not necessarily have enough processing power to do the kind of pattern-recognition analysis needed to separate the infringement from the benign. And what items really are infringing, anyway? Lots of people, especially smaller artists, put their works out for free all the time. There are many reasons for this, but a big one is they need to build a fan base. Obscurity is a far larger fear for them than piracy. Even the big acts often make use of free promotional material in order to increase sales for the rest of a project. The point is there is nothing inherent in the work itself that makes it infringing. *Everything* on the service has a copyright, but in most (or at least many) cases, the copyright holder WANTS it there, even if they never granted an explicit license.
And now the copyright holders push back again. They don't care. They see infringement as enough of a problem that they'll gladly swallow the lost promotional value and make fair use go away, if they could just ensure that you have to obtain an actual license first.
Mainly TechDirt tends to argue that this view is flawed, and that the economics involved would allow the rights holders to make MORE MONEY in a world with more fair use and less license games. But I want to leave that aside for a moment. Instead, I want to look at rights organizations attempts to make their fantasy world a legal reality.
Cases like this really shoot themselves in the foot in that area. As illustrated above, their case largely hinges on claims that service providers are best positioned to make the decision as to what content on that providers network does and does not have a valid license. And then they do something like this. The rights organization can't get this right, even though *they own the license*.
What this proves is that the ONLY party this able to both know the licensing situation and fit within the service provider resource constraints is the party that **actually makes the post**.
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That should, if my reading is correct, mean that 230 safe harbors don't apply, as well as 512 punishments.
Yaaaay!
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Re: Shooting Themselves in the Foot
Incorrect. The status of copyright has absolutely nothing to do with pattern recognition.
Imagine 3 songs on a service. The first was ripped from a CD and uploaded by some random dude. The second was posted by the record label. The third was posted by another 3rd party, but with the express permission of the copyright holder.
The "pattern" is the same. It's the same song. But, only one instance is infringing. Removing all 3 would violate the rights of 2 uploaders, but this would be required by a takedown notice (and yes, labels have insisted that their own uploads be removed at times). Furthermore, the 3rd song can change status at any times, without the service provider's knowledge, if the copyright owner decides to revoke the permission. It's literally impossible for them to be accurate all the time.
So, the responsibility *has* to lie with the copyright owner. There's literally nobody else who will know. But, if they refuse to do their job properly, they're causing more harm than the piracy does in the first place. So, they need to find something other than automated takedown notices to deal with this - and hopefully they will be "encouraged" to do so at some point.
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More Attempted Take-Backs
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While I see the DMCA for the specific file, I don't see a "used on this page" URL. Without this, there is no way to determine it's use (was it commercial?).
That leads to the second question: If Harvard is a "for profit" university, and the material was used to promote the school in any manner, would that be a violation of the CC non-commercial license?
See, without context, it's hard to judge. This story appears to be lacking context.
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From the article:
" He was so excited about the Wired issue and Creative Commons music CD that he wrote about it and posted the mp3s." with link to
https://blogs.harvard.edu/cmusings/2004/10/24/wired-cd-now-available/
That leads to the second question: If Harvard is a "for profit" university, and the material was used to promote the school in any manner, would that be a violation of the CC non-commercial license?
From the article (wired quote):
"The other 13 artists on the CD went a step further and released their songs under the more expansive Sampling Plus license [...]The only restrictions: Use in advertisements is not permitted,"
So we can assume that if the more expansive version doesn't allow advertisement that it's also not allowed by the CC license in question.
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Interestingly, this site is apparently not indexed by the wayback machine, which means there is no way to see what the page was in the past. Odd that!
I do note that the page has no real attribution on it. The current CC rules are:
"Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use."
It could perhaps be unlicensed as a result of using this to promote EFF without attribution and without clearly stating the relationship between the content and the promoted entity. It may also be that the page has a "share alike" license that does not match the license of the content.
It could just be that he works for Google now... :)
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It's not just that you're wrong all the time, it's that you're always wrong in failed attempts to discredit writers here. If I felt they were getting any value for money, I'd be tempted to say you were a paid shill, but they really wouldn't be.
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(for cultural reference, say it in the same tone as "shut up Wesley", it makes more sense).
My point is only that they didn't randomly just show up one day and say "hey, this is illegal!" and randomly send out a DMCA. The owner of the content would generally know it about it's creative commons license, and it's restrictions. It should be noted that the song in question is under the more strict non-commercial Sampling.
So potentially, the posting and hosting of the content in it's entirety on another site isn't a permitted use, rather you would only be allowed to use samples. So having it on the blog may in fact be in violation of the license.
It should also be noted that My Morning Jacket was pretty much an inactive group for a number of years, but returned with a Grammy award winning alt rock album. Perhaps as a result, there is a more aggressive enforcement of their rights that hadn't really been done before.
"It's not just that you're wrong all the time"
No, it's just because your an old geez who can't think past his nose. See above to the tone of "shut up wesley".
" it's that you're always wrong in failed attempts to discredit writers here"
Thankfully, I don't have to discredit you, as you have done it to yourself so often it is laughable.
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Oh yes, straight in with your famous maturity...
"My point is only that they didn't randomly just show up one day and say "hey, this is illegal!" and randomly send out a DMCA."
Except, as the evidence shows, they did.
"The owner of the content would generally know it about it's creative commons license"
So why did they try to claim it was something else?
"It should also be noted that My Morning Jacket was pretty much an inactive group for a number of years, but returned with a Grammy award winning alt rock album."
Which, of course, means absolutely sod all about the licence applied to that particular song.
"No, it's just because your an old geez"
Are you still fantasising about me being retired? I mean, you were proven pathetically wrong about that, but I'd have though you'd at least address reality when you're shown to be such an complete moron. Though it is interesting that you recently attacked me for working in a tax haven (but completely wrong about the amount of tax I pay), yet you also claim I'm not working. Almost as if you can't address real facts...
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Except when they don't. Remember the Mars landing takedown?
http://motherboard.vice.com/blog/nasa-s-mars-rover-crashed-into-a-dmca-takedown
"Anomaly!" cried resident troll OOTB. There are so many of these that such events are no longer anomalous.
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So that's Lowery, bob, angry dude, out_of_the_blue, Technopolitical and darryl who've vanished in a storm of their own shit. Ah, how the mighty spambots have fallen.
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That "broken page" is what people called a blog entry back in 2004. You know, someone writing a short text about a topic they are interested in.
That nice EFF ad which you say "has been there" is still there, on the right, where it says "Sidebar", under "About and Contact Information"
I know crazy right? Linking to something you support in the sidebar you use for all pages on your non commercial blog.
"Interestingly, this site is apparently not indexed by the wayback machine, which means there is no way to see what the page was in the past. Odd that!"
That is really suspicious. You know what is really odd? And blogs.harvard.edu wasn't indexed before 2013 at all. Those Harvard guys must be hiding something!
"I do note that the page has no real attribution on it."
Your browser does display text and links, right? From the site:
'(Note: these are not all under the same CC license. The Beastie Boys, My Morning Jacket, and Chuck D tracks are all licensed under non-commercial sampling-plus; the rest are under sampling-plus. Please see the Wired CD site for details.)'
With 'non-commercial sampling-plus' and 'sampling-plus' linking to those licenses.
And to quote the license rules:
"For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page. "
So I guess the best way to communicate the licenses was used but without thinking about people who don't read the page or know what links are.
"It could perhaps be unlicensed as a result of using this to promote EFF"
Promote EFF, well if that is an issue then TD is violating the license too. Granted I use an adblocker but I can see that there is "Advertisement" on the right side and they link to the mp3 file.
Nice try thou
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Also, the only "broken" things on that page are a couple of CC images, which appear to have been moved since the post was written. The names of the songs and artists are also visible in the page source but not on the page, so I'll guess that's a formatting issue caused by the blog engine (there is some Wordpress code visible in the lower right, so looks like he messed up his theme).
The information he's whining about is perfectly visible, but this lying asshole apparently ran to whine about a couple of images that weren't loading rather than continue reading. You'd figure by the amount of time he spends furiously attacking a blog site he's know how they work by now, but there you go...
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He's even gone as far as demanding people he doesn't like banned, when he's been logging off and trolling people.
Copyright fanboys. Always gotta be that one fucked up bunch.
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I must have hit a nerve... FoP seems to really get your goat!
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Never mind that Masnick has already outed you for logging off and trolling. But keep telling yourself different...
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Try turning off javascript. If I block the site with no-script it works fine and the actual link names with artist/song are visible. Maybe js wasn't supported back then or browsers didn't automatically use a player for links to mp3s? *shrug*
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