I’ve been a non-RIAA reviewer for over a year now. That’s why when companies send me CDs by The Annuals, Matisyahu, or Ryan Adams, I won’t review them unless the company hosts the mp3. That used to be a safe approach. Not any more.
A few weeks ago, I posted a collection of covers of songs from the 1980s. To my knowledge, only one of the artists featured in that post had a connection to the RIAA. That was Chris Cornell. But the song that I posted was a live recording, not commercially released. Nevertheless, the post mysteriously disappeared from my site. Over the next few weeks, this happened twice more. Blogger, my host, has been utterly silent on the issue. I am not alone in this—it’s happened to some of the best bloggers out there, like
Ryan’s Smashing Life, and So Much Silence.
Then, an 11-month-old post from my Wordpress site got dinged. Unlike Blogger, Wordpress, to their credit, did not delete my post. They simply marked it “private” and barred me from writing further posts until I addressed the issue. They also told me who the DCMA notice was from. It was from the IFPI, the UK equivalent of the RIAA. The post was on a band that was independent when I wrote about them, Wild Sweet Orange, and contained only one mp3, which was hosted by RED, an artist development site that Wild Sweet Orange was using for publicity. In other words, it was a legal mp3.
How can this happen?
First, let’s look briefly at the DCMA. Under this relatively new law, any individual (including your grandma) can send a notice to a host and tell them that a blog post infringes on a copyright. The host must act immediately, and the person who wrote the post has no right to appeal during the first two weeks. This is why some Obama supporters have begun serving You Tube with DCMA notices about McCain’s fully legal advertisements—You Tube must take down the ad, and by the time McCain’s camp can appeal, the election will be over.
And is a little guy like me, who just blogs for the fun of it, going to fight it? Of course not. Even though the law supports my actions. Under 17 USC § 107, it is “fair use” to reproduce portions of copyrighted material for “ criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Fair use considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” I believe that my blog fits all four criteria; the only questionable one is the first one. And although I recently started accepting advertisements, the revenue is used to offset the costs related to this site
(such as buying music, sending out prize packages, occasionally attending concerts, etc.) This can hardly be considered a “commercial” venture. It is a labor of love that may be able to generate a couple hundred bucks a year. I’m not here to hurt anyone, and I’m not going to fight a takedown notice. I’m going to comply. Hell, I WANT to comply. I’m here to do favors for small labels and promote artists who do good live shows.
So that explains why blogger is acting this way. Why are the record companies doing this?
The answer is, they aren’t. Or, more precisely, they don’t all know they are. Sure, the big labels know exactly what’s going on. They’re trying to save a business model that is outdated and has been dying for years. But I don’t post their stuff. But artists on smaller or smallish labels may get signed to the big labels, and then the big labels hire attack dogs to protect their interests. That’s what happened with Wild Sweet Orange.
The other problem is that the U.S. label may not be aware that the British label hosts mp3s or submits material to blogs, or vice-versa. Thus, the IFPA may send out a notice where the RIAA would not. This is likely why some folks have told me that links to legal mp3s provided by Sneak Attack Media have been the subject of Blogger deletions/takedown notices.
Finally, the companies all hire robots to crawl the net, the robots find something that they think is offensive and tell the lawyers, and the lawyers send out the C&D notice. Nobody checks the robots’ work. I suspect that this is what happened to Chad, who posted links to an Elliott Smith show on archive.org, but got hit with a takedown notice anyway. These links were fully legal, but they were by an artist whose records have been published by an RIAA label. In his own words . . .
Even more weird, the post that was removed stated clearly at the very top of the post that it was an exact re-post of something I had posted one year to the day (so, easy to find if one was looking), and nothing happened to that post. So, in my case, you can actually see the post that was deleted...because it was posted a year earlier! Here it is, and notice, there is nothing posted that isn't either directly from Elliott Smith's official site, record label, or archive.org...Indeed, Chad. Indeed.
So that, ladies and gentleman, is what a potentially illegal or infringing post looks like. That it obtains nothing objectionable or not entirely on the up and up should concern ALL of you. Because I get permission for everything I post on my site, or use the direct links that labels or artists have made legally available online (or things that are officially in the public domain) for ALL my posts, and I got hit with one of these ridiculous DMCA take-down emails and automatically deleted posts, that certainly means it could happen to any one of you who posts anything at all.
So what do we do about it?
Well, we could start posting streams only. Of course, that costs a lot of bandwidth, and it doesn’t serve the same audience. I, for one, almost never listen to streams. I go to my favorite sites, read a few reviews, take a few mp3s, and listen to them later. If I like what I hear, I go buy it. Streams do me no good.
The first thing I will do is never post on Blogger again.
The second thing I will do is try to find an independent host that is free or cheap. For this, I need your help. There’s a donate button the blog. Hit it and donate, if you want to keep seeing this site. But before you do, read the third thing.
The third thing I will do is, if I return to posting, religiously avoid any artist who is in the RIAA. This includes live material. What this means for you, my readers, is far fewer A to Z posts, far fewer gonzo posts, and far fewer folks coming in through places like Hype Machine. For me, that means, most likely, less traffic.
I’ll have to see if I get enough readers to keep going. This blog has always been about independent music, and mostly that’s not been a problem.
If there’s interest in me keeping going, and I can find the funds, I’ll look for a new host. I want to note that Tim at www.thebluewalrus.com has already been most helpful in such an endeavor. Drop a comment, let me know if I should bother coming back. Tell me if you’re interested in reading about indie artists who you may not know about, like Saturna, Diacon Panthers, LoDeck and Omega One, Marnie Stern, and all the others I’ve featured here over the years. On the other hand, if you only come through for the big cover posts, which may include artists who are on RIAA labels, tell me that, too. ‘Cause it means I’m done.