Digital Music News Explains To Apple What Fair Use Is, Reposts Contract That Apple Tried To DMCA Away

from the do-you-want-to-litigate? dept

Back in October, we wrote about the ridiculous decision by Apple to make a questionable copyright claim on a copy of its iTunes Radio contract, that had been posted to Scribd by the site Digital Music News, for the purpose of analyzing and discussing the contract. As we pointed out at the time, it was difficult to see how this was a legitimate DMCA takedown. The publication was in the public interest and was used for discussion, commentary and critique. The copyright on the contract, whatever might exist, would be very thin. And, of course, there's no "market" for the contract itself, so posting it wouldn't undermine the market at all.

Paul Levy of Public Citizen, representing Digital Music News (disclaimer: Levy has represented us on a few occasions in the past, and I introduced Levy to DMN over a different matter a while back), has now sent Apple a letter, explaining the basics of fair use and why Apple is wrong to issue a bogus takedown.
Apple should know better. Although Apple may not have been pleased by DMN's coverage, the solution was not to suppress the information that DMN had provided. Certainly, the contract includes sufficient original expression to be copyrighted, but the posting was plainly fair use. The contract was posted for reasons of newsworthiness, a transformative and essentially non-commercial use. The posting of the contract in now way interfered with the market for the document, which is not sold, after all. Indeed, the purpose of the takedown was not to protect legitimate copyright interests, but to suppress criticism, which could well be deemed copyright misuse. In issuing the DMCA takedown, Apple was required to consider the fair use reasons for the posting, and the filing of the notice implicitly represented that the posting was not fair use. Consequently, we believe that the takedown was wrongful.
Of course, rather than directly challenging the takedown, DMN has decided to take a different path. Rather than posting the contract to Scribd, it has placed it directly on its own server and written a new article about it (comparing it to Pandora's contract terms -- and, actually, Apple comes out rather favorably in comparison). Levy suggests to Apple's lawyers that they might want to think carefully before trying to issue another DMCA notice about that contract.
We are, however, focused on the future. Today, DMN has published a new story entitled Who's Screwing You Worse: iTunes Radio, or Pandora... and it has included links to the contract which is now hosted on its own server.... In the event Apple serves a DMCA notice on DMN, or on its upstream provider, or if Apple takes any other action against the availability of the contract, we will assume that Apple has decided to litigate the fair use issue. We will be ready to accommodate such a choice.
Your move, Apple.




Reader Comments (rss)

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    out_of_the_blue, Nov 22nd, 2013 @ 9:53am

    fuck apple

    they didnt get give me my paycheck today so i'm not gonna troll for them

     

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    out_of_the_blue, Nov 22nd, 2013 @ 10:01am

    Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!

    WOW. To Mike the most important point here is the tiny copyright battle over re-posting! But just look at THIS:
    "(6) Likelihood of Actually Getting Paid:

    Pandora: Moderate chance.

    iTunes Radio: Also ‘Moderate’."

    That's ONLY a thousand times more important than the copyright flap! -- And be sure to read the supposed rates Pandora pays: $1200 for a MILLION plays. Yet claim is too high! Pffft!

    And that's why I state, often, that Mike has a wacky agenda against copyright as such, and why this tagline.

    Techdirt! When tired of substance, get fluffed here!

    05:57:36[g-250-0] [ This suppresses the kids from fraud of using my screen name. ]

     

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      identicon
      Anonomous Hero, Nov 22nd, 2013 @ 10:09am

      Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!

      You must love the fluff!

       

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    •  
      identicon
      S. T. Stone, Nov 22nd, 2013 @ 10:15am

      Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!

      To Mike the most important point here is the tiny copyright battle over re-posting!

      For this particular aspect of the story, yes, it does count as the most important point. Anyone can go read the actual story (and the Apple contract) at DMN; had DMN pulled back in the face of a legal nastygram, we wouldn’t even have the chance to discuss the contract.

      Mike has a wacky agenda against copyright

      So…holding copyright to its original purpose, wanting to see it rolled back to a point where new works can enter the public domain again, and thinking copyright should serve as a defensive shield instead of an offensive cudgel now counts as a ‘wacky agenda’?

      Wow
      Such insanity
      2wakcy4me
      So crazy

       

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      icon
      another mike (profile), Nov 22nd, 2013 @ 10:26am

      Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!

      one fish
      two fish
      red fish
      go away blue

       

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    •  
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      Gwiz (profile), Nov 22nd, 2013 @ 11:25am

      Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!

      "(6) Likelihood of Actually Getting Paid:

      Pandora: Moderate chance.

      iTunes Radio: Also ‘Moderate’."



      As opposed to a "traditional" recording contract from the majors where the likelihood of getting paid after having to recoup expenses was in the range of "None".

       

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      Pragmatic, Nov 25th, 2013 @ 3:45am

      Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!

      You DO know they only get paid if they get played, right? Copyright revenues only benefit POPULAR rightsholders. If you're not insanely popular, you won't earn much from your work because you get a few cents per play.

      Therefore you need a lot of plays to make any money worth collecting. Kapeesh?

      /math lesson

       

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      The Groove Tiger (profile), Nov 25th, 2013 @ 11:30am

      Re: Framing COMPLETELY IGNORES "Who's Screwing You Worse: iTunes Radio, or Pandora..."!!!

      "Techdirt! When tired of substance, get fluffed here!"

      I heard you're an expert fluffer, but I don't think Techdirt is hiring right now.

       

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  •  
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    Yeah Right, Nov 22nd, 2013 @ 10:28am

    Should have caught the typo

    Excellent closing paragraph in the letter, but 'contgract'? What a pity.

     

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    Anonymous Coward, Nov 22nd, 2013 @ 11:08am

    As for 'wacky' copyrights, the Church of Scientology has copyrighted everything ever put to paper or media by founder L. Ron Hubbard and his agents, not only for-pay/tax-exempt "religious" screeds, employee contracts, and presumably also including internal documents such as the cult's 1970's-era plan to infiltrate the US government, known as "Operation Snow White".

    Because these blanket copyright claims were successful in US courts in the 1990s, criticism of this US-centric cult centered mainly around foreign-based websites run by non-US residents (which Google has censored due to DMCA abuse) because anything in the US was sued into the ground.

    Likewise, an unaided Digital Music News (unfortunately US-based) would have little chance against an absurd copyright claim by a deep-pockets corporation like Apple Computer, should it be carried out in typical scorched-earth fashion.

     

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  •  
    identicon
    Anonymous Coward, Nov 22nd, 2013 @ 8:13pm

    out_of_the_blue greatly loathes it when due process is enforced.

     

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