Are MP3 blogs legal?
The antics of the RIAA in attacking some of the millions of people using peer-to-peer software to download music are well known. The Village Voice gives the latest details on their success.
... of the 8,400 suits filed (8,100 of which were filed against John Does) there have been about 1,700 settlements to date.(...)Most settlements top $3,000, and according to Newitz, some can go as high as $7,000.
...
Frequent downloader Cecilia Gonzalez didn't settle against the RIAA, and on January 7, she received only a summary judgment in a U.S. District Court. Throwing out Gonzalez's claims that she was simply "sampling" songs to see if she wished to buy them and that she was an "innocent infringer" unaware that she was violating record company copyrights, the court ordered her to pay damages of $750 for each of 30 songs she was found to have downloaded illegally, for a total of $22,500. That's more than the poverty line income for a family of five in 2004 ($22,030), but it is worth pointing out that damages of $750 per infringement is the minimum the RIAA could have received, and that the original complaint filed against Gonzalez claimed that she had nearly 2,500 downloaded songs.
However, there are some sources of MP3s that are not being targeted by the recording industry - MP3 blogs.
You'd think a site like FluxBlog (fluxblog.org) would have shriveled up and blown away by now. With every daily helping of two or three tightly and insightfully annotated indie-pop MP3s he serves up, author Matthew Perpetua all but formally invites the RIAA to come down on him like a ton of unsold Ashlee Simpson CDs.
According to USA Today:
Even the most popular MP3 blogs have no more than a few thousand visitors per day. Perhaps because of their size, or because they don't tend to offer mainstream pop, they have mostly escaped the Recording Industry Association of America's crackdown on illicit downloading.The lobbying group for the world's largest record labels, seeking to stop illicit file trading that it says has decimated the music industry, has filed thousands of lawsuits against people who use file-trading networks like Kazaa, but MP3 bloggers haven't been targeted — at least so far.
As the Philadelphia Inquirer says:
MP3 blogs, where fans post beloved niche songs and comments, are safe middle ground in the downloading wars. Some labels even see them as a marketing tool.
The Democrat and Chronicle chimes in with:
Many mp3 blogs are, technically speaking, probably breaking the law, offering up copyright tracks that are not theirs to give away free.While the Recording Industry Association of America has been notoriously lawsuit-happy in recent years over copyright infringement, mp3 blogs so far ";are still off the radar," says Pavelich. "That's part of the reason I've been reticent to talk to (the media) about it. There is that slight fear.
"I sincerely doubt most of the bands I'm using care this one song is downloadable."
So far she has never heard from RIAA. "And I certainly hope that I don't."
RIAA spokesman Jonathan Lamy said the association "is aware of" mp3 blogs "and as necessary will take appropriate action if we find examples of piracy."
The Guardian adds:
Things do go wrong. When an unfinished version of a recent Coldplay track was leaked to an MP3 blog, the company concerned was really upset, says Sean O'Connell, reviews editor at Rip and Burn magazine. But he adds: "It just got more people talking. I don't think it's done any harm."He calls MP3 blogs "legally grey", yet many bloggers still consider themselves too small to attract record companies' attention.
"I suspect MP3 blogs are responsible for an almost insignificant percentage of the music being illegally circulated these days," says Morris. "Peer-to-peer networks are obviously a far greater threat as far as the labels are concerned. And the industry seems to be built on the backs of an ever-decreasing number of artists; music blogs are not the place to go if you're an 18-year-old high school kid looking for the latest Eminem record."
That view is only partially supported by the industry. "There's perhaps hundreds of thousands of infringements happening every day on the peer-to-peer network," says a spokesperson for the International Federation of the Phonographic Industry (IFPI), which represents record companies internationally, "so in comparison, one guy who puts an MP3 file on his blog is not going to attract a lot of attention — but it is still illegal," she stresses.
Bloggers who post many tracks without permission, she says, are likely to receive a cease-and-desist letter.
The London News Review notes that:
All the best blogs have been careful: pushing remixes, or tracks they've digitised themselves (love hearing vinyl scratches all over MP3s), or new releases by small bands. Even the flurry of Ray Charles tributes was driven by the hunt: "You think he's just 'Rainy Night in Georgia' and 'I got a Woman'? Listen, and appreciate the scope of the man's genius." You can learn more about Charles (or Robert Quine) by listening than you would by reading broadsheet obits.The tracks come down after a week or so, and all the blogs are more than happy to comply with removal requests. Most of them have a 'buy this album' link. They're cautious and reasonable, as far as I can see.
Vue Weekly says:
Obviously, all this unauthorized posting and distributing of copyrighted music is bound to have its legal complications. In a cursory attempt to cover themselves, nearly all MP3Js run a disclaimer on their blogs proclaiming that the tracks are for evaluation purposes only and highly urging visitors to purchase the album if you enjoyed the tracks. As well, the files are always rotated and never kept on longer than a week—a move to discourage other sites from linking to the songs. But luckily, since the type of songs these blogs tend to post travel well below the radar of most big record labels, lawsuits have yet to reach the MP3Js. Michaels did once receive a cease and desist order through the server that hosted Said the Gramophone, but was never told which file was the offending one. On the other hand, he has been contacted by numerous artists delighted to find their songs on his weblog.
Meanwhile, Coolfer suggests (referring to an article in BizReport) :
The focus of the article is Fluxblog and its founder Matthew Perpetua. ""Most of the artists that I cover are pretty obscure, and I like to help them get a bit of publicity and grassroots support," he said. That's why the RIAA isn't suing the pants off of most MP3 blogs. Few indie labels are members of the RIAA, and MP3 blogs--at least the ones I check out from time to time--rarely post tracks by RIAA member labels.
So are MP3 blogs legal? Well, the answer is maybe. Some record labels release a few tracks from an album for free download as a teaser for the rest of the album. If an MP3 blog sticks with these free downloads, then it's completely legal. However, often the blogs comment on, and make available for download, tracks that haven't been officially sanctioned for release. Whilst the blog author knows this status, the casual visitor has no way of knowing if the track is fully legal or not. To be sure, they must obsessively visit all offical sites related to the band in question, and try to find the track for download there. Often the tracks will be legal, but not easy to find.
The Morning News had a roundtable discussion with some of the leading MP3 bloggers about this (and other topics):
TMN: Future of mp3 blogs: Are the record companies hounding your doors? Have musicians approached you to get their songs heard? Feel any responsibility, financially, to the artist if you’re giving their songs away for free?David: I get at least one email a day from an artist who wants me to link to their tunes. I am always thrilled when my weblog can be a conduit between artist and potential fan. Of course, this is why I started my site, and I benefit by discovering great music as well. I’ve heard from several small labels, and am glad to link to their artists (if I enjoy their music). Unfortunately, there hasn’t been any payola sent my way, but most artists are kind enough to offer their CDs, buttons, stickers, and/or band paraphernalia. My favorite thank you was a box of Tastykakes from a band in Philly, my hometown.
So, will the RIAA attack MP3 blogs? Well, logic is no help here. The evidence points to P2P downloads aiding, or at worst having negligible effect on music sales, yet the RIAA is attacking P2P ferociously. So, the fact that (high-quality, well-written) MP3 blogs such as Fluxblog and Scenestars probably encourage music sales is no defence. However, MP3 blogs have been around for some years now, and the record companies have ignored them so far, when it would have been easy for them to force web sites operating illegally to shut down.
In the past, sites hosting huge archives of MP3s, or even just huge archives of links to MP3s have been forced to close, but users of these sites have not been followed up.
MP3 blogs are more like listening to your favourite DJ than warehouses of illegal music. It would be nice for record labels to officially acknowledge their existence, and endorse what they do, but I won't hold my breath waiting.
Updated 14th April - added comment from The Guardian.