(Photo courtesy of The Hype Machine)

I was first introduced to The Hype Machine by a music collecting, risk averse friend who assured me that this was the only legal way to get free music. Unlike traditional P2P services, in which individual computers connect to each other directly in order to swap files, Hype Machine is a blog aggregator. Basically, Hype Machine’s software scours the net for music blogs, especially those hosting MP3’s. Users can then search Hype Machine for particular artists or songs, or they can use the site to check out what’s currently popular. The site maintains a compound RSS feed of blogged tracks, so visitors can listen to songs streaming on the website, visit the original posts on the various music blogs that Hype Machine aggregates (where the songs can often be downloaded directly from the blogs), or travel to Amazon or ITunes where they can buy the songs they’re listening to.

In effect, the entire internet becomes a kind of P2P network. And unlike traditional P2P software, record companies can’t easily track who’s listening to what. Napster, Kazaa and Pirates Bay were for chumps, my friend told me – this was the future of music online.

Of course, things turned out to be a bit more complicated than that. Hype Machine might be legal, but then again it might not. It’s one of many descendants of the original P2P services that operate in a legal gray area. Its creators have learned from the mistakes of Grokster, Kazaa, and others, and they take great pains to emphasize that the site is not intended to encourage infringement. Users are constantly told to legally purchase the songs they listen to, and the site’s legal disclaimer insists that its creators “can’t be responsible for what people post on their blogs.” The site’s creators are also quick to point out that they make most of their revenue from users who follow links on the site to ITunes or Amazon to purchase music (they receive 5% of all such sales).

But the site does not only point users towards blogs. In order for Hype Machine to make the songs available on the site, it mirrors the MP3’s passing through, makes copies, and then puts them online at URL’s of its own. This is the only reasonable way to allow large numbers of users to listen to the songs without overwhelming the hosting blog or running up a massive ISP bill for them. To minimize legal trouble, Hype Machine hides the files at URL’s that are never made public. This way users cannot simply download the MP3’s to their computers via Hype Machine’s servers.

Lately, though, creative programmers have been writing scripts that allow users to find the URL’s where tracks are hidden and download them to their own computers. One blogger created such a script and posted it, only to remove it the next day at the request of Hype Machine’s founder, who feared legal repercussions. Other scripts have since been written, and efforts by Hype Machine to block such programs have had limited success.

It seems unlikely that the ability to download tracks, as opposed to merely stream them, would significantly impact the legal status of the site. But a good faith effort to prevent such downloading might show an absence of infringing intent (something that is vital in the aftermath of the Supreme Court’s decision in the Grokster case). And it might prevent lawsuits by convincing copyright holders that the website is merely providing free advertisement, rather than cutting them out of a market.

Still, there are significant reasons to worry about Hype Machine’s future. Presumably, Hype Machine hopes for safe harbor under Section 512 of the DMCA. In their copyright notice they inform readers that copyright holders may follow the procedures outlined in Section 512 and notify the site’s creators, who will remove offending links. But critics may argue that the site actively seeks out music (much of it copyrighted), mirrors it, and stores it on its server, rather than merely acting as a gatekeeper and allowing users to upload content themselves.

Certainly, if Viacom’s pending action against YouTube is successful, there is no reason to believe that Hype Machine would fare better. Like YouTube, Hype Machine responds to chilling notices but does not employ software to block copyrighted material. Its popularity as a site is due in no small part to the presence of infringing material, and it does not seem to have a policy of terminating infringing users.

For now, Hype Machine provides a valuable service to thousands of users, allowing them to discover new music, read about artists they enjoy, and even download files that they would otherwise have to pay for. So use it while you can – it may not be around forever.

Earlier today, I was reading a post on Professor Lessig’s blog about a new law in New Zealand that compels ISPs to terminate someone’s internet service if they are simply accused of copyright infringement. Though I have long followed the issues surrounding warrantless wiretapping and other national security-related breaches of civil liberties, I took solace in the fact that we live in a country where our innocence is presumed until we are otherwise proven guilty.   Or so I thought…

Just as online video services like Youtube have developed a notification mechanism to be eligible for the Safe Harbor protection from secondary copyright infringement charges, eBay has been using a similar procedure since 1997—a year before the DMCA was enacted.

eBay’s Verified Rights Owner, or VeRO, program allows copyrights holders to notify eBay that an item or listing infringes on a copyright they hold. Without requiring copyright holders to explain the alleged violations they claim to have observed, eBay will promptly remove the listings in question.  Rights holders are essentially “deputized” and can have any listing removed; by eBay’s own admission, “eBay cannot be an expert in your intellectual property rights in over 25,000 categories, and cannot verify that sellers have the right to sell the millions of items they post on eBay each day, we need your help in identifying listings which do not appear on their face to infringe your rights.”  Perhaps this should come as no surprise, airing on the side of overreaching is more prudent for eBay since the DCMA explicitly states that the Safe Harbor immunity only applies if the online service provider “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”

There are certainly circumstances in which a company could legitimately claim copyright infringement. If, for example, a copy of Photoshop were being sold with a picture of an installation CD that was obviously counterfeit, Adobe could file a good faith notification that a pirated copy of its software was being offered on the site. However, amount of power granted to VeRO member leaves the system very prone to abuse.

Companies ranging from high-end electronics-manufactures to the Church of Scientology are allegedly using VeRO to suppress a secondary market for their goods and to squash competition. While there is a counter-notification procedure, as mandated by the DMCA, according to one eBay guide , members wishing to protest their takedown need to undergo an obfuscated process by which they virtually need to “pry it [a counternotice] out of eBays hands.  That is tough, eBay doesn’t seem to want to get involved in the counternotice process [sic] .” Furthermore, if the rights holder claims that it is a trademark, not a copyright, that is being infringed upon,  eBay will “refuse to forward the counternotice at all”.  Scott Pilutnik, an IP lawyer has likened VeRO to a fox having “little incentive to act prudently while guarding the henhouse”.

The process of notifying eBay that an item is infringing is remarkably easy. All a company needs to do is fax this very simple form. After the first complaint is filed by fax, companies are given an e-mail address to speed up the execution of subsequent claims. Unfortunately, this has led to people or groups—who are not copyright holders—using the VeRO process to have competitor’s auctions taken down).  While eBay claims to have no tolerance for anti-competitive use of VeRO, just a quick glance at the form will reveal that filing a fraudulent notification would not be very difficult. As one blogger writes, all one needs to do is:

“1 – Purchase a prepaid cell phone with cash at any 7-11. 


2 – Download the VeRO application/complaint form here. 


3 – Sign up for a dead end email address (yahoo, gmail etc). 


4 – Fill out the form and fax it to eBay (use a fax not at your home) 

eBay will call the phone the first time you use the VeRO against someone, so never give the number to anyone and always answer it with your ‘Company Name’.”

The sheer amount of time involved and the often-frightening prospect of making statements under penalty of perjury and being embroiled in litigation—particularly against behemoth corporations—serve as deterrent to fighting the takedowns. Just look at how intimidating the counter-notice procedure is compared to the infringement claim form. Especially considering the sheer number of people whose businesses are centered around their sales on eBay, having listings taken down could be financially perilous and leave one feeling like Joseph K. in Kafka’s The Trial. Just three notifications by a VeRO member can result in suspension or termination of an eBay account and infringement claims—even if there is a successful counter-notice—remain on account holder’s record. This is beginning to sound more and more like the law in New Zealand that made me so outraged.

Even though part (f) of section 512 of the DMCA clearly stipulates the consequences of misrepresenting an infringement claim, I have yet to hear of anyone being punished for a false accusation through the VeRO program. This is especially disconcerting when a study spearheaded by the Director of the Intellectual Property Clinic at USC found that:

Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);

In addition, we found some interesting patterns that do not, by themselves, indicate concern, but which are of concern when combined with the fact that one third of the notices depended on questionable claims:

Over half-57%-of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors.

Check out some of the VeRO horror stories at http://www.auctionbytes.com/forum/phpBB/viewforum.php?f=35-.

It is clear that VeRO must be changed to take the rights of sellers into greater consideration. However, until the DMCA is modified, it is doubtful that eBay would make any changes as doing so could make it liable for copyright and other types of IP infringement while the status-quo entitles it to safe harbor protection, albeit while subjecting sellers to a convoluted process.

Photo Courtesy of Wikipedia

If you’d like a good laugh, head over to The Pirate Bay’s legal threats page. For anyone who doesn’t know, The Pirate Bay is a Swedish website which tracks various torrents, many of which allow one to download copyrighted content (a good basic summary can be found here on Wikipedia).  While those who run The Pirate Bay are actually currently on trial (that’s another story, however),  they clearly haven’t been deterred by legal threats in the past. Judging from their legal threats page (linked to earlier), it would seem they actually enjoy getting–and subsequently ignoring–takedown letters.

Most of the letters seem to be in the format required by the DMCA (Digital Millennium Copyright Act), which protects those who host websites from liability for hosting copyrighted content provided that, among other things, they respond to takedown notices from copyright holders by removing the potentially copyrighted material in question. A fair number of them mention the DMCA, and some the specific section that creates the takedown system, § 512. Take this excerpt from this letter (great URL, btw) to The Pirate Bay from Microsoft:

This letter serves as notification under the Digital Millennium Copyright
Act, 17 U.S.C. § 512, or equivalent notice provisions of your local law,
that content currently residing within your computer system infringes on the
copyrights of Microsoft Corporation.

It seems, however, that the DMCA, being U.S. Federal Law, doesn’t really apply outside of the U.S., and, at least according to The Pirate Bay, there isn’t a Swedish equivalent. They point this out to in their response to another takedown notice (this one from Dreamworks claiming Pirate Bay was infringing on their copyright of Shrek 2):

As you may or may not be aware, Sweden is not a state in the United States
of America. Sweden is a country in northern Europe.
Unless you figured it out by now, US law does not apply here.
For your information, no Swedish law is being violated.

I’d love to post more of that particular response,  but parts of it are somewhat vulgar, and I don’t want to offend anyone. That said, it’s pretty funny, and I suggest reading it if you’re not easily offended.

These takedown notices and the way in which The Pirate Bay responds to them illustrate an interesting point about the DMCA, namely that it is inherently somewhat limited in scope. Despite the many complaints people have about the DMCA, it does a remarkable job of protecting the interests of copyright holders while still allowing the internet to flourish (Fairly recently, Wired, of all magazines, actually published an article praising the DMCA, particularly the takedown system created by § 512, as “the law that saved the web.” I highly recommend reading it.)  What Pirate Bay’s legal threats page illustrates, however, is that the DMCA–or, for that matter, any U.S. Federal law–may only protect copyright holders from infringement by other actors in U.S. While I’m by no means an expert in either copyright or international law, my intuition leads me to believe that The Pirate Bay is correct in asserting it isn’t bound by U.S. law, unless there are treaties that make it so in this particular case. Given the internet’s inherently global nature, the fact that members of one country are not bound by others’ copyright law is a potentially huge hole in any single nation’s attempt to make copyright law applicable to the digital era.

Can (or, for that matter, should) this loophole be closed? One could imagine a treaty that acted as an international version of the DMCA, but I believe that would take far too much international cooperation to be at all likely. Alternately, the U.S. could pressure countries like Sweden into changing its copyright laws, but that’s unlikey to work. As this blog post suggest, Swedes don’t seem to like the idea of other nations influencing their laws. Furthermore, lenient copyright law seems to be the norm in Sweden: they’ve even got a political party known as the Pirate Party. Besides, as this excerpt from Pirate Bay’s response to a takedown notice indicates, at least some people (e.g., those at The Pirate Bay), like Sweden’s copyright laws the way they are:

Unlike certain other countries, such as the one you're in, we have
sane copyright laws here. But we also have polar bears roaming the
streets and attacking people  .

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