Let's take a trip in the wayback machine a bit.
It's late October 2004, and Wired Magazine has just released its November issue, which has a cover story about how sampling is the future
, in which the magazine was able to get a bunch of well-known artists to contribute Creative Commons licensed songs, which shipped with a physical CD (remember, this is back in the day) and were also posted online
and free for people to share and to reuse and remix. The article about it is worth reading. It talks about the nature of creative artwork:
Building on what other musicians have done – with or without their blessing or collaboration – is what it takes to make new music, music that will delight and sustain people. That, after all, is why it's called making music (playing music is something else altogether). Elvis Presley, that pioneer of appropriation, put it best: "Fair exchange bears no robbery, and the whole world will know that it's true. If you wanna be hugged, well, you gotta hug me too."
It also talks a lot about Creative Commons and the efforts it took to get all these well-known artists to contribute their songs. Hell, the very same issue even (shockingly) included an article by former RIAA boss Hilary Rosen, talking about how much she now loved Creative Commons
, after Larry Lessig convinced her to change her views.
Lots of people wrote about all of this in one way or another. We, somewhat sarcastically (hey, what do you expect?) covered Rosen's conversion
to being a CC supporter. Most of the coverage, however, focused (rightly) on the music. This included a young copyfighter named Derek Slater, who back in the olden days when blogs were blogs, wrote one on Harvard's website called A Copyfighter's Musings
. He was so excited about the Wired issue and Creative Commons music CD that he wrote about it and posted the mp3s
This was, of course, all perfectly legal. These tracks were released under one of two Creative Commons licenses, but both allowed the basic tracks to be shared online. As the Wired article noted:
The licenses come from Creative Commons, the innovative nonprofit founded by Wired columnist and Stanford Law School professor Lawrence Lessig. The songs on this CD use one of two Creative Commons licenses.The Noncommercial Sampling Plus license permits noncommercial file-sharing and noncommercial sampling. That means, first, that you can swap the songs on a peer-to-peer network (just don't sell them). And second, that you can sample from them, mash them up, use them to make something fresh – and then share that work, too (though again, you can't sell it). The Beastie Boys, Chuck D, and My Morning Jacket opted for the Noncommercial Sampling Plus license.
The other 13 artists on the CD went a step further and released their songs under the more expansive Sampling Plus license. Like the noncommercial version, it allows file-sharing. But it also allows commercial use of samples – meaning you can insert a slice of these songs into your own composition and then try to sell the new track. The only restrictions: Use in advertisements is not permitted, and the new work must be "highly transformative" of the original (translation: A flagrant rip-off like "Ice Ice Baby" doesn't cut it). More details on the licenses and their permissions are available at creativecommons.org/wired.
Okay... enough reminiscing in the wayback machine. Fast forward to today, where record labels and their trade associations -- rather than helping the industry adapt -- are spending all their time whac'ing moles by sending pointless takedowns via automated systems that never bother to check the details. The IFPI -- basically the international version of the RIAA -- is particularly crappy at this, regularly caught sending totally bogus takedowns
As you've probably figured out, that historical world and today's world have clashed. IFPI, in its infinite (and most likely automated) cluelessness, has sent Harvard a DMCA takedown notice
over one of the songs in the Wired Creative Commons collection -- the song "One Big Holiday" by the band My Morning Jacket. You can get it here because it's freely available thanks to Creative Commons
You would think (wouldn't you?) that before sending out takedown notices, folks like IFPI are supposed
to check on the licensing situation around those songs and whether or not IFPI even has the right to send such a takedown. In this case, even if they control the copyright, they most certainly do not
have the authority to send a takedown, because doing so violates the terms of the license which the copyright holder agreed to when the song was released.
Thankfully, Harvard passed the notice along to Slater, who had lawyer Lila Bailey (occasional Techdirt guest poster
) respond on Derek's behalf
, basically saying, "IFPI, WTF?"
By sending this notice, you have knowingly materially misrepresented that this content is infringing in violation of 17 U.S.C. § 512(f), resulting in personal harm and financial expense to my client. As a courtesy to you and without prejudice to any further action we may take, I am writing to inquire whether you wish to withdraw your takedown notice....
Even the most basic investigation would have indicated that Mr. Slater's use is lawful and consistent with the Creative Commons license granted by the copyright owner. Under the United States Copyright Act, rightsholders are required to consider whether a use is lawful before issuing a takedown notice, and that requirement was plainly not followed here. This notice reflects an unfortunate pattern by IFPI, sending bogus takedown notices without any investigation into the rights status of the claimed works.
Of course, as we've discussed in the past, 512(f) of the DMCA has been rendered mostly toothless by the courts, but a good case could potentially change that. And issuing a DMCA over Creative Commons released music seems like a good test case, yes? I'm guessing that IFPI will take back its bogus takedown notice, but one wonders if it will actually change how it sends these things...