WHAT’S GOIN’ ON?
It’s not Halloween yet, but it’s getting scary in the world of music blogs.
Over the past month, blogger.com and other web hosts have been deleting posts in response to numerous take down notices from copyright holders. Two of the posts deleted from Star Maker Machine featured songs that were more than forty years old. That hits a little bit too close to home for me. Most of the old country songs I like to feature here are owned by major labels. If I can’t post 'em, then I can’t operate this blog.
Until this week, I thought my blog was doing a small service to the music industry by helping to drum up fan interest in great old music. Don’t blame me for thinking this way. The PR agents hired by the labels seem think the same way too. They regularly ask me to post tracks from new releases and reissues. One major label affiliate sends me free promo CDs in the hope that I will post something at this site. Every day I get e-mails from promoters about some new band.
If the labels don’t like music blogs, then why are they sending tracks for me to post? If the labels do like music blogs, then why are they sending take down notices?
My concern is that the recent take-down activity signals a shift in the industry’s stance toward music blogs. Maybe they’ve decided we no longer serve a useful purpose? If that’s the case, then I don’t want any part of it. I’m here because I love music, not to be some kind of trouble maker. If the tacit approval of the record companies is over, then so is this blog.
WHAT’S A TAKE DOWN NOTICE?
A take down notice is a letter from a copyright holder alleging a copyright violation. Take down letters are rarely sent directly to bloggers. Usually they go to the companies that host blogs or mp3s (like blogger.com or box.net). For more information about take down notices, see this message from blogger.com.
For someone who is just blogging for fun, there's no reason to fight a take-down notice by filing a counter notification. I’ve got no financial stake in the continued existence of this blog. But it’s a little upsetting to be accused of violating the law, especially after the record companies have given their tacit approval of this blog by soliciting coverage here.
WHAT’S “FAIR USE”?
For what it’s worth, my posting policy here at STWOF has always been to post mp3s for a limited time only, with no more than one or two tracks per album, and with “buy” links to help readers find the correct album to purchase. I have never collected any revenue from this blog. It actually costs me a decent amount of money to pay for hosting, etc.
I post mp3s according to these guidelines in an effort to comply with the “fair use” doctrine. Many other music bloggers do the same. (See articles about music blogging here, here, and here).
Not all unauthorized sharing of copyrighted materials is illegal. Under US copyright law, the legality of posting mp3s on a music blog depends on the interpretation of the 17 USC 107, which provides:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—Application of the fair use doctrine requires the balancing of a number of factors. So it is not entirely clear whether responsible mp3 blogging would be deemed to constitute a "fair use." No court has addressed the question, but I think a strong argument can be made in favor of the legality of some music blogs.
(1) 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
There's no question that my posts here are for nonprofit educational purposes. I don’t make any in revenue and I’ve tried to create an informative environment. The benefit I’m shooting for here is to call attention to deserving music, which definitely would count as "comment" under the "fair use" exception.
Less clear is “the effect of the use upon the potential market for or value of the copyrighted work.” Will posting an mp3 cause readers to seek out and buy the full album of an artist they might never have heard otherwise (in which case there will be a positive effect on the market)? Or will it stop potential customers from paying to download the same song (in which case the effect would be negative)? That question has been the subject of some research, but no conventional wisdom exists. I think the fact that so many artists openly encourage music blogs to post mp3s of their songs strongly suggests that responsible mp3 blogs are helpful to the industry, at least on a case by case basis.
WHAT’S SO GREAT ABOUT MUSIC BLOGS?
The purpose of the “fair use” exception is to balance the copyright holder’s interest in exploiting his or her intellectual property (thereby fostering the creation of more intellectual property) against the benefit available to the public when otherwise protected materials are shared in a fair way. Accordingly, its important for those of us who love music blogs to examine and explain how they are beneficial to our culture.
Music blogs benefit the public by providing a great way to learn about new (and old) music. In the old days, the best we could do was to listen to the radio, hang out at record shops, subscribe to music magazines, and compare notes with our friends. In recent decades, the first two methods have become less attractive and the last two have become obsolete.
Radio stations and record stores aren’t what they used to be. Radio stations used to be regionalized and somewhat interesting. Now, aside from the occasional show on a public station, free radio consists mostly of lousy, mainstream, commercialized junk. Satellite radio is better, but its not something everyone can afford. And brick and mortar record stores barely exist anymore. If you’ve got a good one in your neighborhood, you’re lucky. The big book stores that sell music rarely have the kind of selection or expertise that music lovers used to be able to find at the old independent record stores.
Comparing notes with friends is still a great way to find out about new music. But wouldn’t it be even better if you had a whole bunch of friends with similar interests instead of just one or two? That is the world of music blogs in a nutshell. If you can find ten or twenty blogs that best match your interests, which isn't hard, then you’ve got yourself a great little interactive community of music "experts" that you never would have been able to find before the invention of the internet. Music blogs, aggregated by sites like The Hype Machine and eblo.ws, have taken the basic concept of word-of-mouth marketing to an exponentially higher level.
Some music magazines are also still worth reading, but they’re fading away now that we have the internet to enjoy. They're also less satisfying in comparison. Music is best understood through the ears, not the eyes. Remember how frustrating it was to read a review of a new band that supposedly sounded like a combination of “late-sixties Kinks” and “Reckoning-era R.E.M.” only to discover, upon shelling out $17.95 that you own a pile of sonic crap? The huge advantage of music blogs is that you actually get to hear a sample of the album being reviewed.
We’ve built a better mousetrap. Do we really want to kill it off?
What makes music blogs so unique as a tool for finding music is that they could not have existed before the internet. These days, when we want to find anything, the internet is the first place we look. Why should it be any different with music? The web allows us to play and hear sound. Why shouldn’t we take advantage of this technology to best relay information about music?
In short, there isn't any pre-internet analog to music blogs. Before the internet existed, we relied on the radio, print magazines, and word-of-mouth because that was all we had. Copyright law should not be interpreted in a way that would end this natural and beneficial innovation in the way we communicate ideas about music.
The ability for anybody to publish on-line leads to the final, and most important, attribute of music blogs: Unlike radio, print magazines, commercial websites like Amazon, and the on-line presence of record companies, music blogs are not inspired by a profit motive. With music blogs, music fans get to see and hear the independent editorial opinions of other well-informed fans. The person selecting the songs and artists to feature has nothing to gain by persuading you to fall for some specific product. They’re telling you about the music they love. It’s an organic and trustworthy medium.
To sum it all up:
(1) The place we all go for information is the internet.
(2) We can best get information about music by actually hearing the music, rather than just reading about it.
(3) Information the comes from an organic network of fans—without a profit motive—is infinitely more valuable than information coming from a record company or retailer with something to sell.
Only music blogs combine all of these features.
WHAT’S NEXT FOR STWOF?
Like I said, I can't operate in an environment where the industry is objecting to the posting of forty-year-old tracks.
As long as this blog isn’t deleted by blogger it will remain here for posterity’s sake, but I won’t be posting much of anything until this latest take-down issue works itself out. Keep me on your feed reader, because I may continue posting links over to good stuff happening elsewhere. And who knows? Maybe I’ll figure out a way to come back someday.
As I said last week, it’s been a great year here at STWOF. Thank you!
WHAT’S YOUR TAKE?
I would really love to hear your thoughts about "fair use" and the general value of music blogs. Are they something that can be sustained in the long run under the current legal environment? Do they serve a useful purpose? What can we do to save them? Am I full of hot air?
ONE MORE FOR THE ROAD
Before I fade off into the sunset, there is one more song that I need to post. It’s an amazingly good song about packing up and moving on to new things.
Guy Clark - L.A. Freeway (buy).
The entire album comes highly recommended from me. You should buy it right now!
UPDATE: This post from Modern Accoustic has some hopeful quotes from a few folks in the music PR business.