Sharing music videos while promotional may be subject to take down request by copyright owner

EFF Commentary by Tim Jones

Imagine you’re a music journalist who maintains a blog. You’ve just found a great, new, virtually-unknown artist that you want to tell the world about. How can you do so, in a way that is simple and convenient for your readers, but does not place you or your blog’s host at risk of being sued?

Thanks to the increasingly aggressive copyright-enforcement tactics of the music industry, this has become a startlingly complicated question with no good answer.

In the latest signal of this conundrum, at least six music blogs were deleted last week by Blogger due to copyright complaints. It’s uncertain who made the accusations that lead to the deletions, but the most likely culprit is the International Federation of the Phonographic Industry (IFPI), a copyright-enforcement organization which had previously filed copright takedown notices against some of the targeted blogs.

Although the takedowns were made in the name of stopping piracy, the deleted blogs do not appear to have been hotbeds of illegal file-sharing. Indeed, some had operated for years and acquired a serious and substantial readership. Like many music blogs and magazines, they mostly posted reviews of artists, albums and concerts.

In at least one case, IFPI’s accusations of copyright infringement were almost certainly incorrect. Bill Lipold, author of the deleted I Rock Cleveland, has outlined in painstaking detail the ways in which he received explicit permission to post every file on his blog, including ones which were later accused of infringement and forcibly removed. In one case, the band’s publicist wrote of the takedown, “Just so you know, this is none of our doing…apparently, DMCA operate on their own set of odd rules, as they even requested that the (band’s) official blog remove the song….What a headache…”

In cases like this, attacks on music blogs seem to be the latest example of the widening disconnect between the goals of the music industry’s promotional wing and its enforcement wing. Smart musicians and promoters understand that the Net is a powerful promotional tool, and know that sharing an artist’s music is the best way to earn new fans. The IFPI, on the other hand, writes clearly in its takedown notices that “Our top priority is to prevent the continued availability of the IFPI Represented Companies’ content on the internet.” We’ve already seen this divergence of interests play out in recent fiascos surrounding bands like OK Go and Death Cab For Cutie. And the television industry has seen similar problems in its attacks on YouTube.

In other cases, it appears that the bloggers may have posted or linked to copyrighted material without permission. But, as targeted blogger Patrick Duffey explains, it’s often next to impossible to know exactly which content is being accused of infringement:

In their DMCA take down letters they never inform you what the infringing mp3’s are, forcing the writer to take down ALL the mp3’s in the offending post whether they have the permission to post them or not… If they had just included what the offending mp3’s were they could have avoided all of these headaches and bad press and we could have kept on going like any other day.

Living Ears, another targeted blog, echoes those sentiments:

One problem with these notices is that they do not mention infringing files by name. When I post the playlist from Scene Not Heard and link to a couple of tracks, if I receive a DMCA notice, how can you tell which file is to be deleted?

Targeted bloggers need to know these details, not only so that they can remove the file if it’s indeed infringing, but so that they can file a DMCA counter-notice in the event that the file is not 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.

By now, the affected blogs have mostly migrated elsewhere — in most cases to software like WordPress, deployed on smaller and less well-known hosting services. While this will buy them some time, these smaller hosting services are just as vulnerable as Google is to attacks by the IFPI and their ilk. In fact, most smaller hosts are likely to be even less helpful to bloggers than Google has been, since they tend to lack Google’s legal resources and PR imperatives.

That being said, there are steps that music bloggers can take to protect themselves. Though EFF hasn’t created resources specifically for music bloggers, many of the suggestions made in our Guide To YouTube Removals and Guide To Avoiding Gripes About Your Gripe (or Parody) Site will be relevant. Note especially this list of web-hosts that have been known to show some spine when faced with legal threats over their customers’ content. And, of course, all current users of Blogger should make regular use of Blogger’s “export” feature to back-up their work.

If this game of whack-a-mole seems familiar, that’s because it is. The same copyright-enforcement machine that was originally designed to fight music piracy, having largely failed at that goal, has now been turned on music journalists, and — in some cases — musicians themselves. It’s just the latest example of how legitimate speech and innovation will continue to be endangered until either Congress or the music industry takes serious steps to fix things.