It is with a heavy heart that I write this post. This is my last post on this site. It may be my last post forever, depending on the reaction to this post.
I’ve been a non-RIAA music blogger 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 DMCA 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 DMCA. 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 DMCA 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 IFPI 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…
http://everybodycares.blogspot.com/2007/10/elliott-smith-august-6-1969-october-21.html
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.
Indeed, Chad. Indeed.
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.
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I would for one still be interested in your blog even if it didn’t include big name artists.
Comment by Anonymous — October 29, 2008 @ 12:11 am
How will I find your blog if you do move it to another site??
Comment by Anonymous — October 29, 2008 @ 1:07 am
It would be a damn shame to lose your site. Regardless of the artists you’d post, I’d be there to check them out. Keep us posted as to where you land!
Comment by Anonymous — October 29, 2008 @ 2:18 am
Wild Sweet Orange? Huh? Who the eff are they?
Web police can try to crack down on bloggers, but people aren’t going to buy albums like they did in the past (where would they go, so many shops are closing?). People like me who buy cds (and before that, records–I’m old) in quantity are dinosaurs. People who aren’t accustomed to getting music like that aren’t like to start.
There is too much recorded music now. This is mostly a good thing, but makes narrowing down purchase choices more difficult. I used to buy strictly on reviews, but now there are also too many magazines and blogs to hype groups. Criticism is too diluted. Thus, it’s too easy to make bad purchases. That’s why I now buy mainly on what I hear. If blogs can’t post songs, music acts are going to suffer. I can’t be alone in thinking this way.
Finally, Berkeley,I have enjoyed your site for about a year, and I’d like to thank you for your work. I don’t like eveything, but I like your outlook. I have especially enjoyed your Clash related posts. If you continue I’ll find your new site (though I don’t care too much for the likes of Marnie Stern, ugh). If not, best of luck in future endeavors.
Comment by Dave C — October 29, 2008 @ 2:29 am
*sigh* Not you too? All too many of my favourite bloggers are questioning whether to continue or not.
As a band manager just starting out, it pains me to see this happening to everyone. I love blogs. I tell my band to read the blogs to see what’s happening. I learn all kinds of stuff from blogs and they are vitally important to me as they are the quickest way for me to keep up with what is going on and to listen to what else is out there.
Please don’t give up. I would totally donate to your site and I would get my band to as well except that we just used our last few bucks to buy groceries.
Comment by Sheherazade — October 29, 2008 @ 5:19 am
You can’t stop blogging, I’ve been reading for ages and every post is like gold. I’ve lost track of the number of cool indie bands that you’ve turned me on to and gone out and bought the albums from.
Surely that’s the best possible form of peer-to-peer advertising than copyright infringement?! It’s like the modern replacement for singles on the radio…. only nobody’s taping it they’re downloading it for a few listens before buying the whole thing..
You would’ve thought that a record industry that’s shedding money by the bucket load would wake up to this movement instead of killing it.
These music blogs are like going down a really cool record shop with your mate picking out great records you should get, only on a global scale.. Theses are cool bands that inspire others in turn and I’m sure would be more than happy to keep that cycle going (I know mine would and we happily give our stuff up for free download) as music is supposed to be about fun..
You can’t stop posting, yours is one of the great independent voices on the blogsphere
Comment by Tony — October 29, 2008 @ 10:56 am
This is so sad; your blog is on my daily must read list. Even though I love your A-Z lists, I visit daily just to see what new artists you’re talking about. If it hadn’t been for you, I’d never have heard the new love of my life, the Pomegranates. Many thanks for all you’ve done; I should have thanked you ealier than this.
Comment by Anonymous — October 29, 2008 @ 12:15 pm
I visit daily and would definitely be disappointed if you didn’t come back. I especially loved your indie hip hop posts.
Comment by sinnersavesyou — October 29, 2008 @ 1:32 pm
You’re the only blog I check daily, music wise that is. Come back! Damn the man, or the little man, or whoever. We need your voice.
Comment by Anonymous — October 29, 2008 @ 1:58 pm
My first comment on blogger.com…
Don’t quit!
Comment by Anonymous — October 29, 2008 @ 3:02 pm
Not only will i echo the “i visit your site daily” sentiment, hell, i’ll take it a step further–you helped to inspire me to start a music blog of my own. i’ve been following all the other music blogs facing similar challenges and wonder when my day will come. While losing your blog would be a crushing blow, i certainly appreciate where you’re coming from. At the end of the day, isn’t blogging supposed to be “fun,” at least to the extent that we’re writing about stuff we love? Once the “fun” aspect goes away and it becomes work and/or a potential legal nightmare nobody wants to deal with, you’ll see a lot more cats disappear. And that makes me sad.
Comment by CD — October 29, 2008 @ 3:56 pm
I visit everyday as well and enjoy your new artist features more than the A to Z posts. I definitely think you should continue. Thanks for all the work you’ve put in.
Comment by Billy — October 30, 2008 @ 1:33 am
I’ve been checking your blog almost everyday for about 6 months now, you have some really good stuff, and I like the funny pics! I hope we’ll still have the chance to read your blog in the future, even if you have to modify the type of content a little… Thank you for taking the time to do this blog, and good luck!
Comment by Cri — October 30, 2008 @ 1:44 am
Sad to hear, but I can understand your position. I think you’re the 3d or 4th blogger i read regularly to decide to just hang it up.
Thanks for all the great stuff!
Comment by mikey — October 30, 2008 @ 5:19 am
You suick and Im glad ur done. This blog is lame. Why would I go here when I can just go to pirate bay and get a whole fucking album?
Comment by Anonymous — October 30, 2008 @ 8:41 am
I hope to be back soon. Check in here once in a while for updates.
Comment by Ekko — October 30, 2008 @ 8:45 am
I’m really disappointed. Your blog is one of the best around!
Comment by Liz — October 30, 2008 @ 12:50 pm
No industry has ever shot itself in the foot more than the music industry… first they steal authentic rock and roll and give it to the likes of Pat Boone, when rock recovers after Motown/Stax and the British Invasion they respond by forcing racialized marketing and programing on listeners, when Disco and Punk resist AOR/Arena Rock flatulence they treated them like a sound rather than an DIY/party ethic, and when 80s underground generates a new independence the majors sign the best they can get but destroy most by marketing only REM and U2, Nirvana changes everything but is marketed as flannel-wearing “grunge” and now new musical syntheses and new media are rejuvenating the music (and markets) and must be destroyed in the name of mainstream power… oy.
I hope there’s a way for you (and so many others) to stay active and a way for us to follow you.
Comment by Alan Rudy — October 30, 2008 @ 2:28 pm
Ekko:
I appreciate the love you’ve given me and my camp just in the past year. Reading your new posts every day and checking the archives, it would be a devastating if your downfall was a few indie bands who are spinning their own wheels a little too fast.
I’m gonna donate now. Keep on truckin’!
Comment by Zilla Rocca — October 30, 2008 @ 3:12 pm
This is insane. I can’t believe the RIAA would be coming after you. Ugh – le suck! Wish you the best and hope this is all just some error on behalf of Blogger.
Comment by Tessa Horehled — October 31, 2008 @ 12:00 pm
Of course I’d follow your site wherever it went! You’ve been around as long as I have, and been through the same stupid shit as me, and, interestingly, seems like you came up with the same solution. (Thanks for quoting me, by the way!)
I wasn’t aware that WordPress was also not really an option, so it looks like I’ll try to move to a new domain entirely, and hope at least some of my audience comes with me.
As far as traffic goes, it certainly does decrease when you move to the model I have, but the way I figure it, all it means is that you lose the drive-by mp3 hunters…the actual readers, the loyal ones who trust your writing and judgment and don’t particularly care if they can download a track or not, they stay with you. And I’d rather write for 300-400 loyal readers and music enthusiasts each day than 1500 people coming over from the Hype Machine to find free music.
Keep fighting the good fight – and I’ll update my links to your site once I move to a new server!
Cheers,
Chad
Comment by chad — October 31, 2008 @ 1:05 pm
this sucks. i blame everyone.
good luck ekko, hope to see you re-emerge, mask intact. until then, thanks for all the phish.
Comment by Ass Hat — November 3, 2008 @ 5:08 pm
I chill from the web for a couple days, and all hell breaks out. First, Badminton Stamps decides to close up shop for good. And now this … by all means, do not cave in!
Comment by dudeasincool — November 4, 2008 @ 4:07 am
[...] the legal questions involved in this practice, BPI’s owner claims that it was done under the assumption that they had both artist and record label blessing to do [...]
Pingback by Music Blogs, Sharing, and CC Licenses - Creative Commons — November 5, 2008 @ 8:54 pm
I share your frustration and anger. I too have seen perfectly legal blogs removed by blogger with no notice or communication. When I email them to point this out I get no response. The arrogance and lack of concern by blogger just makes it worse.
The hypocrisy of a music industry that constantly reinvents ways and formats to flog us the music we already have and then takes the moral high ground against ‘illegal’ sharing takes the breath away.
The internet is rendering the major labels redundant and they naturally don’t like it so, as bullies do, they pick on the blogs.
But don’t worry it’s the last desperate act of the dinosaurs. It’ll take more than a nation of millionaires to keep us down. The blogs are the future, independence is the future, self release and self promotion is the future. The major labels are the past.
Keep the blog on don’t let the b****** grind you down.
Comment by Paul — November 16, 2008 @ 3:38 pm
Hey man, been following you since back when I was in the mp3 blog game (songz.blogspot.com), don’t give up!
Comment by No Frontin' — November 19, 2008 @ 7:02 pm
“I found this blog very intriguing – thanks for the effort
If you don’t mind me asking, which template are you using at the moment? It’s amazing and I’d love to know if it’s a free one.”
Comment by l2 adena — February 26, 2009 @ 1:30 pm
It’s a custom job. If you contact me, I can ask the designer if he’d be open to doing one for you.
Comment by ekko — February 28, 2009 @ 5:48 am