Warner Bros. Using DMCA Against Free Speech

I work as the chief nerd for Cheri Media Group. A company who runs a number of websites including the 3rd largest Hip Hop news site HipHopDX.com. We occasionally get DMCA takedown notices from various record labels, they are usually the result of a lack of communication between the label’s PR department and the legal department or RIAA (ie. someone in PR will clear a track for play on the site, but the legal/RIAA will not be informed).

Last week we received a DMCA takedown notice that appears to be asking us to remove “controversial” forum threads under the guise of copyright violation. The full text of the letter is under the jump, but here’s the relevant portion:

IMMEDIATELY REMOVE THE FOLLOWING THREADS INCLUDING ALL LINKS AND REFERENCES
TO UNAUTHORIZED MATERIAL ASSOCIATED WITH THE ARTIST E-40.

E-40 / Biggie Smalls
http://www.hiphopdx.com/messageboard/viewtopic.php?p=526817

http://www.hiphopdx.com/messageboard/viewtopic.php?p=526073

Some context: The are links to two seperate pages from a forum thread entitled “E-40 almost had Biggie killed.” The original poster, embedded a youtube video clip from a DVD entitled Beefs IV. I have not seen the clip – it had already been taken down by youtube by the time I saw the DMCA notice. As best as I can tell, it was a clip of a rapper called E-40 talking about how he tried to have Biggie Smalls killed. You can see why E-40s record company might want to kill these sorts of rumours (although, in my opinion any publicity is good publicity – especially in the rap world).

Here’s the thing…
The Digital Millennium Copyright Act only covers copyright material! The only thing that’s vaguely copyright in that forum thread is the youtube embed. The forum thread itself free speech! The forum thread itself is copyright of Cheri Media Group! By demanding that Cheri Media Group “IMMEDIATELY REMOVE THE FOLLOWING THREADS…” Warner Brothers Music is demanding that Cheri Media Group give up its right to free speech! This is a gross and disgusting misuse of the DMCA!
These forum threads absolutely do not contain any copyright material hosted on HipHopDX.com’s servers. If Warner Bros. was legitimately trying to remove the infringing content from the web then they wasted their time contacting the wrong company. Oh but wait, the video clip is owned by Image Entertainment, an independent studio – Warner Brothers does not even have the right to demand that to be taken down!

It gets worse…
The hosting company running HipHopDX.com’s dedicated servers has a policy of suspending network access to all services in violation of a DMCA takedown request. I assume this is because they have some liability as the owners of the hardware the content is ultimately stored on. It’s probably a fairly standard policy. What this means is that even if a website gets a completely meaningless takedown notice like this, the site will still be obliged to take down the content or have their site shut down by their service provider! Whereas a more relevant legal demand such as a libel suite would not have the same sort of immediate consequences. So publishers are free to send off DMCA notices whenever there’s a public relations mess to take care of – imagine what would happen if Governments started doing this.

Luckily for my paycheque, HipHopDX’s hosting company is very reasonable. They agreed to keep the site online after a brief conversation.

Disclaimer: I am not a lawyer, I have no formal training in law and I have not read the DMCA in full. I could be getting a lot of things wrong.

NOTICE OF INFRINGEMENT AND DECLARATION: WARNER BROS. RECORDS, INC.
TO:
Administrative Contact:
REMOVED

Technical Contact:
REMOVED

IMMEDIATELY REMOVE THE FOLLOWING THREADS INCLUDING ALL LINKS AND REFERENCES
TO UNAUTHORIZED MATERIAL ASSOCIATED WITH THE ARTIST E-40.

E-40 / Biggie Smalls
http://www.hiphopdx.com/messageboard/viewtopic.php?p=526817

http://www.hiphopdx.com/messageboard/viewtopic.php?p=526073

If you do not comply with this demand immediately, we will seek whatever
remedies are available to us under the United States Copyright law, the
Lanham Act and any applicable international laws or treaties.

WARNER BROS. RECORDS, INC.

I, the undersigned, do solemnly and sincerely declare and CERTIFY UNDER
PENALTY OF PERJURY that:

1. I am the owner or an agent authorized to act on behalf of the owner of
certain intellectual property rights, said owner being named WARNER BROS.
RECORDS, INC. (“IP Owner”).

2. I have a good faith belief that the materials identified above are not
authorized by the above IP Owner, its agent, or the law and therefore
infringe the IP Owner’s rights according to the laws of the (check all that
apply):

United States
Australia
Canada
Chile
EUR
France
Germany
Hong Kong
Italy
Japan
Mexico
Netherlands
Spain
United Kingdom
All of the above X

Act expeditiously to remove or disable access to the material or items
claimed to be infringing.

3. I may be contacted at:

Printed Name: Dorothy Sherman
Title: Consultant
Company: Warner Bros. Records, Inc.
Address: 3300 Warner Blvd.
Burbank, CA 91505
Attn: Susan Genco, Esq.
Email (correspondence): [email protected]
Telephone: 212 946-1718
www.grayzone.com

You should understand that this letter constitutes notice to you that the
sale and/or other distribution of this product is unauthorized. 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.

Finally, notwithstanding our use of the required notice form, we believe
that hiphopdx.com ‘s activities and services fall outside the scope
of the Digital Millennium Copyright Act (“DMCA”). Our use of this form, as
required by law, is meant to facilitate hiphopdx.com’s removal of
the infringing product listed above and is not meant to suggest or imply
that hiphopdx.com’s activities and services are within the scope of
the DMCA.

I make this declaration conscientiously, believing it to be true and
correct, and in accordance with the laws of each of the countries listed
above. I am aware and agree that the contents of this statement may be
relied upon against me in any court or arbitration proceeding.

Truthfully,

Dorothy Sherman
Digital Signature: Verisign

Date: 27 September 2007

E-40 / Biggie Smalls

http://www.hiphopdx.com/messageboard/viewtopic.php?p=526817

http://www.hiphopdx.com/messageboard/viewtopic.php?p=526073