Re: [h2o-discuss] the DMCA in action

[John Kwasnik <jkwasnik@jps.net>]

>An off-the-record chat with somebody from my "ISP"
>indicates that ALL MP3 servers are being shut down,
>on orders of the music publishers. [ ... ] And the MP3
>servers are, as pointed out below, just assumed
>to contain material infringing on copyright, when
>no actual justification for that claim is provided.
>
>Seems to me a good case could be made for violation
>of First Amendment rights here.  And a careful
>reading of the Digital Millenium [sic] Copyright
>Act ought to show that false copyright claims under
>the act can be punished by fines.  [ ... ]

        True, MP3 files COULD be pirated material; they could also be
perfectly legal self-published recordings of some garage band's original
compositions.  So a blanket purge, as you mention, would be like forcing all
the peasants out of their villages in Vietnam, because they MIGHT be Viet
Cong sympathizers.

        But the effects of the DMCA are more insidious.  It's usually not
straightforward, like the RIAA suing an MP3 site operator, knowing full well
that the operator cannot muster the resources to defend their site.  

        The vast majority of personal music site operators do not run their
own servers.  Most likely, they have "free" sites on some web-hosting
service like Geocities, Tripod, Xoom, etc.  Usually, the small print in the
web-hosting agreement gives the service the right to terminate the site at
any time, for no particular reason.  So besides the fact that such site
operators have VERY limited resources, they would have a really tough time
fighting back.

        In the case of CDNOW, it may simply be a blanket internal policy,
rather than some rights owner or agency blowing the whistle.  I remember
reading something about CDNOW jumping on the Microsoft bandwagon, for its
digital audio format ... which wants to be the new de facto standard
replacing MP3.  In this particular case, I don't know what the operator had
available on his site; whether it was MIDI files, or MP3 files, or a mix.
All you get now is his statement on why he shut down.

        But this particular example of the DMCA in action is not unique.  It
is happening all the time.  This particular site operator was intimidated by
CDNOW, whose banner he carried (and he wasn't making money running their ad;
at best, he would get a slight discount on his purchases from CDNOW) ... but
he still had the site up, so he could run the "goodbye" page.  More
commonly, the copyright holder's agent notifies the ISP or web-hosting
service, and they simply erase the site's files from their servers.  

                                     John Kwasnik