Owning Information and Terminating Debate

Music companies still don’t like people discussing music, it seems, and Google are a very dangerous company to give control of your information because they cannot be trusted.

Google have recently been deleting, wholesale, entire music blogs, representing years of work for no profit by people who are in some cases explicity operating one hundred percent within the law, and in other cases with the tacit approval of the music companies whose nuisance complaints under the Digital Millennium Copyright Act have actually caused what tweeters are calling #musicblogocide2k10.

About six months ago, if you remember, the music companies started abusing the DMCA, using it in a frivolous, scattershot manner to harrass music blogs as a nuisance technique for disrupting independent music conversations.  Effectively, they would make copyright complaints to blogs hosted on Google’s Blogger service under the DMCA, which pretty much obliges Blogger to delete the post in question, irrespective of the legality of the post in question.

After the resulting outcry amongst bloggers (whose writing is their intellectual property, remember) Google backed off slightly, insisting that they would simply revert accused posts to draft rather than delete them, and that they would start notifying bloggers when they removed their posts rather than simply deleting them and hoping writers would never notice.  It still remained on record as a Terms of Service violation however, and now the inevitable has happened: some blogs with multiple complaints to their name have been dubbed repeat offenders and simply deleted.

Put that way it all sounds pretty tame, doesn’t it.  It’s pretty clear that mp3 blogs operate in something of a legal grey area – some of the tracks we post are shared with the blessing, and even encouragement, of the copyright holders, some with their tacit if unwritten approval, and some directly against their wishes.  Some offer downloads of full albums for free, and are completely illegal as well as being, as most bloggers would agree, very damaging to artists, labels and even bloggers themselves.  Why is it an issue, then, after a legal complaint about an illegal act and with a record of repeatedly flaunting the law, if a writer is simply shut down?  It’s not an issue, actually, for me, when put like that, but that is an almost totally inaccurate portrayal of the reality of the situation.

The Digital Millennium Copyright Act, simply, like much of the law being written in the heat of the copyright wars, is nothing more than a big stick for the entertainment corporations to beat people with whom they dislike, and has no relation to justice, fairness, or protection of copyright beyond the preservation of a very specific way of monetising it.  More importantly, for some, it is quite simply rotten law – no more than a dictation taken by massively corrupt or woefully ignorant politicians at the command of a nervous and malevolent cartel.

Think that’s a bit rich?  Well, when making a DMCA complaint there is no obligation to show that you own the copyright in question.  There’s also no obligation to prove, beyond a ‘good faith’ statement that an actual infringement is taking place.  If the actual host – in this case Google, even though often all they host is a link to the material in question – acts immediately to remove the article (not the link under dispute, the entire article) then they are immune from liability for the alleged infringement and immune from any liability for their actions if the claim turns out to be spurious.

In other words if you are Google and you have any questions, these are the answers.  Why is it illegal?  Because we say so.  What if we disagree?  Well if you obey then you are in the clear and if you don’t then we’ll take every single damn copyright infringement, or anything even vaguely close, on Blogger and probably YouTube as well and we’ll sue you for the whole bloody lot.

The results of this are even more ridiculous than you might expect.  A small UK label sends a blogger an mp3 to help promote their site, but the US release of the same record might go through a larger label, who license it to their distribution partner, in whose Los Angeles office a placement student is given the tedious task of trawling the internet looking for copyright violations to crack down upon, spots one of the artists they’ve been assigned to police, and sees a pat on the head and a nice dog biscuit in his immediate future.  And the article vanishes.

The above situation may sound ludicrous, and it is, but it is exactly what happened to Muruch last year, and that site is one of the oldest music blogs in existence and has always been one hundred percent legal – the only mp3s Vic posts are the ones sent to her by labels with their explicit permission to make them available for download from her site.  But the confusion between copyright, performance rights, publishing rights and distribution rights, and between the global nature of the internet and the territorial nature of many of those deals, makes this situation far from as unusual as it should be; in fact it makes it almost inevitable.

The communication disconnects need not be within such a complex daisy chain, either.  Last year, when I met with Sony in London, the young, forward-thinking people I spoke to were enthusiastic about courting music blogs, because they recognised that the network effect of sparking a bushfire in the blogosphere can easily exceed the benefits of getting a handful of articles in the mainstream music press.  Bloggers aren’t taken all that seriously by labels like Sony, however, so these guys were relatively junior.  So, never mind their chances of getting their own managers onside, according to them the legal departments in places like that are without fail the most resistant, backward, inflexible reactionaries you could hope to find, so they themselves might send an mp3 out to the blogs with the full blessing of their line manager, but once someone in legal finds it out there that won’t necessarily prevent a crackdown.

It’s such a mess at the moment that record labels’ attack dogs have even ended up biting their own tails.  Hilariously, Sire Records recently had all their official music videos removed from YouTube because of a copyright complaint by their parent company, Warner Music.  One of the complaints which sparked the recent blog deletions ended up being directed at the label’s own official blog for hosting their own official promo track.

So every single one of these fuck ups within the framework of an already ridiculous piece of law-making ends up on a blogger’s record as a violation of their Terms of Service.  They can make a counter-claim, but they all go through a tiny, volunteer run company somewhat aptly named Chilling Effects (at least someone has a sense of humour), where the backlog is so severe as to have effectively made their job impossible.  A blogger could sue of course, but I find it hard to imagine a twenty-year-old college student taking Warner Music to court over their butchered website.

And now the inevitable has started to happen.  Blogs with multiple ToS violations on their records have started to be deleted.  Google is already bickering with the major labels about music videos on YouTube, so presumably they are more worried about keeping them sweet at the moment than they are about music publications, even ones which represent five years of work for no monetary reward and operate entirely within the law.  As an example, five-year-old music blog I Rock Cleveland has been entirely legal for the last two years, and contains not one single copyright violation, but has still been a victim of these frivolous attacks. Google clearly have no interest in establishing their veracity and yesterday simply deleted the site, along with several others.

Google themselves have made a weak statement about ToS violations and filing counter-claims, but it is difficult to take them seriously when actually making those counter-claims results in no more than being casually ignored.  If you don’t believe me, here are are some of Dave from I Rock Cleveland’s attempts to get a response to the false claims filed against his site.  Vic from Muruch very bravely fought this last year, despite the potentially disastrous financial consequences if she were deemed to be in the wrong, and she did finally get through, but it was a long and painful process, and she represents just one music blog.  There are thousands.

So why is this happening?  Well from Google’s point of view, they want to own all the information in the world, and they have far more important fish to fry, I should imagine, than music blogs.  Or to put it another way, they simply do not care.  One on side of this argument, as I would imagine they see it, is a handful of disgruntled music bloggers leaving their service to self-host using things like WordPress.  On the other side they host an enormous amount of user-generated amateur content, from Blogger to YouTube to, in some senses, eBay, and under the terms of the DMCA they are not liable for damages for any of the infringements taking place across any of their various sites if they remove it immediately an accusation is made, whereas if they do not, they might well be liable for damages (which have been ludicrously punitive in past music industry cases) for the whole bloody lot.  So despite the fact that music blogs represent some of their most popular sites (Gorilla vs Bear springs to mind) I’m sure they think it’s a shame, but it’s no big deal when compared to the potential and ill-defined consequences of swinging the other way.

The other reason it’s happening, of course, is that music companies are desperately afraid.  They are kind of nervous about filesharing, but I think that is merely a symptom of a more deep-rooted and, ultimately, more dangerous ailment: they have lost their audience.  And by lost I mean just that: misplaced – they don’t know where they’ve gone.

If you are massive label selling pop music in the United States, say, who are you trying to sell to?  Commerical radio is all owned by ClearChannel and is a banal monoculture, not used as a place to find music, but more often consumed as no more than background noise.  Music retail is so dead that the Billboard Chart basically represents no more than babysitting money spent by parents on behalf of their children in Walmart on the stuff like the Hannah Montana Soundtrack or NOW 56 compilations. Music magazines are all but extinct.  Music television has been totally obliterated by the likes of American Idol.  So who are they selling to?

Corporate money has gone to buy ads during X-Factor.  The companies hoovering up that cash may be owned by the same corporations as the major labels in some cases, but I doubt that they’ve realised that they are in an either/or situation.  Casual pop fans who use music as social glue do not need to buy their water-cooler pop from labels anymore because it is piped into their houses every evening on the television, and these people represent a massive, massive chunk of the market.

The people who are actually still spending money on music have all but deserted the mainstream channels like print and commercial radio because they simply are not catered for there.  So the illegal downloaders are the only people left consistently spending money on musical products, but they are doing it through alternative and underground channels – through blogs, from independent labels, from merch desks at gigs and online.  Because of their technological troglodytism and general fear of change, these are channels which tend to lead away from major labels not towards them.

So they have lost the determined spenders to the underground and the casual ones to other media, and they are now squabbling over the leftovers.  They have either misplaced or actively driven away their market.  The only place any music market still clearly exists in online, through podcasts and blogs and webzines.  Look at the likes of Drowned in Sound, Pitchfork, Stereogum, and the general blogging diaspora – that’s the only really obvious place to find lots of people still willing to spend money on music.  Unfortunately, this is not a conversation the entertainment companies control.  These nodes may be becoming increasingly corporatised (DiS was very nearly bought out by BSkyB a year or two ago), but even Pitchfork, which is the biggest and most influential, is still a tiny little enterprise by anyone’s standards.

When people like Madonna release an album it is not unheard of for the handful of lucky, pre-selected reviewers to be huddled into a room, played the album once, not always in its entirety, and then sent away to write their words.  Apart from the ridiculously superficial nature of any review written under those circumstances, it is also a very tightly controlled process – it seems almost military.

Compare that to how music is reviewed and brought to its audience today: it is a totally fragmented process.  An album will be reviewed hundreds upon hundreds of times by almost anyone, and how the hell do you manage or hope to steer a process that splintered and vague?  They have lost their market, they have lost their audience, they have lost control of the conversation itself and that is why they are so scared at the moment – it really is not just about filesharing.

My personal theory is that major labels hate blogs because they over-estimate our influence.  The audience for music is spread very thinly these days, but it is at its most visible in and around the blogosphere.  Blogs represent an obvious and easily indentifiable group of people who still spend a lot of money on music, but it is all too vague and unclear a picture for companies accustomed to having the channels of conversation as nailed down as they used to.  So they are filing nuisance claims against blogs with no more goal than basic disruption.  They want blogs to either go away, like the amateur ones will, or to do as they are told, as the more professional ones might.

Now, as applied to music blogs this all seems pretty inconsequential.  Music, after all, is just entertainment.  But this desperation to retain control of the conversation is not limited to music. The Associated Press recently announced plans to charge for the right to quote their articles.  The writing is their intellectual property after all, so if you want to reproduce it, you should pay. This is utterly ridiculous, of course.  Fair use is often cited as a justification for sharing a couple of mp3 files on music blogs, in order to facilitiate critical review.  Basically, this is the artistic equivalent of a quotation – you cite an example in order to explain your argument.

Certainly in intellectual debates it is very difficult to argue against something if you can’t show people what it is you are disagreeing with, but the idea of charging to quote is basically a way of pricing people out of the discussion.  How can an amateur possibly discuss politics online if they have to pay a few dollars for absolutely everything they quote?  Those costs would become prohibitive very, very fast.

Think how simple it would be for someone to wage a nuisance campaign against people who are publically criticising or disagreeing with them if they could file a DMCA complaint against every quotation.  And they can, remember.  There’s no burden of proof and a legal pardon from facing the consequences if you’re in the wrong.  All that is needed is the accusation.  Homeopaths and Chiropractors already have a proud history of using this kind of digital vandalism to silence bloggers critical of their dangerous charlatanry.  Censorship by threat and bullying, is routinely used as a way of silencing debate – and they’re just homeopaths defending their commercial interests, imagine if it was debate about the war in Iraq, or bank bailouts.

The law in this area has taken a very sinister turn – that of guilt by accusation, without the burden of either proof or indeed any kind of due process of law.  This is not just about the nuisance of shutting down a few music blogs operating in a dubious legal grey area, this is purely and simply about consolidating power, and owning information.  By removing due process from these areas and making them between an individual and their provider’s terms of service you are essentially privatising law enforcement, and putting its policing in the hands of powerful vested interests.  What this does is effectively enshrine the concept that Might Makes Right in law, because by removing due process and abdicating any responsibility for enforcement, governments are effectively leaving us on our own to duke it out with massive conglomerates and their armies of lawyers.  And who the fuck do you think is going to win that one?

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