Digital Millennium Copyright Act
No, DMCA is not a band but it is the Digital Millennium Copyright Act, it is a law in the United States that makes it easier for record labels to take down mp3s on blogs, amongst other copyright and internet issues. It was passed into law in 1998 by President Clinton, but I did not really know what it meant for music blogs until last week.
How it works is this: the DMCA gives copyright owners such as artists and labels, the right to serve what is known as a ‘takedown’ notice to ISPs and web hosting companies when a copyrighted work is being distributed on the internet, such as blogs. If the ISP/host chose to comply with this takedown notice by removing public access to the copyrighted content on their server, they will be exempt from future law suits from the copyright owner (eg. labels) relevant to this content. The person who puts up the content (eg. blogger) then get sa notice from the ISP/host informing that the content has been removed and that he/she can serve a counter-claim notice to the ISP/host challenging the takedown. The copyright owner then has 14 days to reply with a law suit to take the matter to court. If there is no law suit then the ISP/host can restore access to the copyrighted content.
Two weeks ago I received an email from my web hosting company Dreamhost informing me that they have received a takedown notice from the RIAA for this file: http://whothehell.net/wp-content/uploads/2008/07/pnauladyhawkemiamihorrorfalke.mp3
It’s from the Miami Horror and Fred Falke remix of PNAU’s new single Embrace (featuring Ladyhawke) post. What’s funny about the whole business is that I was given the file by the copyright owner, the label who commissioned this remix etcetc records who isn’t even registered with RIAA. They reconfirmed that they still want me to blog an mp3 of the track as it is part of their promotional strategy for the single servicing. So they emailed to Dreamhost asking the file to be put back up. Dreamhost replied by saying that we have to serve them a counter-claim, following the DMCA’s guidelines, and recommended that we get a lawyer to do it. They refused to do anything more, even checking if the original takedown notice was issued by a genuine claimant of the copyright material. Now I’ve been with Dreamhost for over 10 years and they’ve always been very good to me so I know they weren’t just being silly. Around the same time, Aleks Discodust emailed me saying that he too was with Dreamhost and that he had received the same notice, and wanted to check with me if that track was indeed still cleared to blog.
A quick search on the internet revealed that the DMCA has indeed many flaws, and there are sites that are dedicated to repealing this Act and even a site on takedown notices clearinghouse tracking the effects of the legislation and other similar law. One of the sites has example of how to write a counter takedown notice, so I did a simple cut and paste, filled in the details and sent it back not to Dreamhost but to antipiracy@riaa.com, letting them know that they are in no position to serve this notice in the first place because they don’t even represent the copyright owner of the song. And then I waited, to see if I’m going to be sued for blogging an mp3 I was given permission to. A few days passed, and then I received an email forward from Dreamhost, the RIAA has rescinded their notice and the file has been put back up online. It is now available again. whothehell.net 1, RIAA 0.
My post is just one of the many examples how this law is being misused. It’s true that the mp3, being hosted with Dreamhost a US company, fall under US court of law jurisdiction. But hosting companies are so fearful of being sued by labels, movie studios and huge bands like Metallica and U2 that as soon as they received a takedown notice they restrict access to the disputed file without even doing background checks to the validity of the notices.
Until now I have no idea which member RIAA, which label, served the notice. Pnau, Miami Horror and Fred Falke (as far as I know) isn’t signed to a US label. Ladyhawke is signed to Island/Universal, but this work isn’t hers, it’s Pnau’s. Perhaps someone in Island just googled ‘Ladyhawke’ and served notice to everyone that was hosting the file. But this recording was done before she signed to Island anyway. I have heard that there were no performance agreement with the song between Pnau and Ladyhawke, and as a condition Pnau isn’t allowed to advertise the song with Ladyhawke’s name or image in the press or videos. But that doesn’t stop bloggers like me attaching her name on it. No one told me not to mention her name in writing, and most bloggers spend a lot of time and money maintaining their websites purely for the love of the music, and they genuinely think by doing so help promote the artists’ work. So I don’t think I should be penalised for my support of the local music scene, if the whole Ladyhawke/Pnau agreement was indeed the reason the file got taken down.
Could this be some form of industrial sabotage? It would be very easy for other labels to serve takedown notices of rival label’s artists, and as a result derailing any promotional blogging campaign. It just seems to give not only copyright owners but anyone that the ISPs/host deemed legimate to takedown just about any mp3s.
All speculations aside, I hope by posting this I’ll bring more attention to this legislation. Have any other bloggers received a similar DMCA notice?
