Monday, October 26, 2009
To back up, the Digital Millennium Copyright Act (DMCA) covers two things: 1) it "criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works" and 2) "it heightens the penalties for copyright infringement on the Internet". --Wikipedia
It is this second part of this legislation that is used to hammer bloggers as the burden of proof falls on the accused, not the accuser. Here is where it gets really fun (if you are the RIAA or one of their stooges) -- under the safe harbor provisions of the DMCA, the recipient (Google or otherwise) pulls down 'the offending content' immediate or they are "potentially liable". Think about this -- we pride ourselves as a nation on due process but -- in this particular instance -- Congress has bullied the internet service into blaming the accused. This is the equivalent of threatening to sue Ford or GM for selling a car to someone who is later accused of drunk driving. For anyone reading, filing a DCMA claim is really that simple -- you file a "good faith" notice that the content infringes on your rights and -- BOOM -- the content disappears almost immediately. You don't even have to prove you are the content owner. The accused then can either fight the take-down by filing a counter-notice (which involved supplying the accuser with your name, address and telephone number) or just letting it go.
Here is a real DMCA notice that I've copied from ChillingEffect.org. Note all the weasel words in the lead-up to the threats...'even if we are ultimately wrong, it looked like we were right at the time [based on good faith and 'data' available to us] so we aren't liable for false claims'.
Dear Sir or Madam:
I am contacting you on behalf of the Recording Industry Association of America, Inc. (RIAA) and its member record companies. The RIAA is a trade association whose member companies create, manufacture and distribute approximately eighty-five (85) percent of all legitimate sound recordings sold in the United States. Under penalty of perjury, we submit that the RIAA is authorized to act on behalf of its member companies on matters involving the infringement of their sound recordings, including enforcing their copyrights and common law rights on the Internet.
We have learned that your service is hosting the above web sites on your network. These sites are offering direct links to files
containing sound recordings for other users to download by such artists as Lady Gaga, Sting, Mario, Madonna, and Muse. These recordings are owned by one of our member companies and have not been authorized for this kind of
use. We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law. We assert that the information in this notification is accurate, based upon the data available to us.
We are asking for your immediate assistance in stopping this unauthorized activity. Specifically, we request that you remove the sites or the infringing links from your system, or that you disable access to the sites or the infringing links, and that you inform the site operator of the illegality of his or her conduct.
You should understand that this letter constitutes notice to you that this site operator may be liable for the infringing activity occurring on your service. In addition, under the Digital Millennium Copyright Act, if you ignore this notice, you and/or your company may also be liable for any resulting infringement. This letter does not constitute a waiver of any
right to recover damages incurred by virtue of any such unauthorized activities, and such rights as well as claims for other relief are expressly retained.
Please note: We have submitted a signature to be placed on file with Google.
You may contact me at RIAA, [private], Washington, DC, 20004, Tel. [private], or e-mail [private]@riaa.com, to discuss this notice. We await your response. Kind regards.
VP, Online Anti-Piracy
Coming back to Marcy Playground -- a few weeks ago, I received notice that Marcy Playground had filed a DMCA notice against me and the review that I had written of their newest CD was gone - POOF. So, what was the problem here?? DCMA notices are equally 'fun' for the recipient as Google doesn't tell you what the infringing content was. Given that I don't have any hard facts (outside of the DMCA notice) to go on, all I can do is guess. Let's see...I used a stock picture of the CD (this falls under 'fair use' boys) and I linked (note: linked, not rehosted) to live tracks that Marcy Playground singer John Wozniak had posted on his MySpace blog. Once again, this shouldn't be a problem.
I originally shrugged this off as I found Marcy Playground's "Sex and Candy" to be one of the more annoying songs of the 90's but - after receiving this second notice, I really started thinking that enough is enough. It also doesn't say much for me (Just sayin', I am from Brooklyn) if I let some 90's one-hit wonder file a bogus claim against me and get away with it.
Here is where Marcy Playground has a problem - the law holds for severe legal consequences for filing a false or bad-faith notice. There was an obvious lack of due care and good faith on Marcy Playground's part in filing this DMCA notice. I could also likely make a liable and defamation claim stick as DMCA claims are publicly posted.
So -- what's my point with all of this...
1) Downloading isn't what is killing the music industry - crappy product, mediocre bands and poor legislation seems to play a major part in this equation
2) Marcy Playground - What planet are your brains on? I gave your new CD a decent review and you filed a DMCA complaint against me for linking to content that your lead singer/songwriter had posted for free?? Now you have legal issues due to sloppy due diligence on your part. We are going to need to come to some sort of settlement on this. I have to ask you - was it worth it? After this fiasco, I will never work with you and I will also strongly and actively encourage other bloggers and journalists not to work with you.
Seriously - bullsh*t claims like this take away from bands who have legitimate claims when their new CD goes up on Rapidshare (or equivalent).
I like sex and candy as much as the next guy but Marcy Playground has left a really bad taste in my mouth.