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
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.