Some thoughts about fair use, the DMCA and supporting independent artists

About 70 unique visitors came to the blog on Saturday when I posted my short article introducing Goh Nakamura and his new album. Among those 70 were a few secretive visitors who arrived via proxies hiding where they really came from. They also had cookies turned off so I couldn't see how long they were viewing the blog. I was intrigued and through Statcounter, I was able to see who these mysterious visitors were. I won't name any names but they were large corporations associated with media copyright and distribution. But why were they visiting me? I soon realized they had discovered my blog through TotallyFuzzy when I advertised that I had an important update to my blog ie the one about Goh. So basically they came around secretly to see whether I was distributing any copyrighted material solely because I had advertised that Goh's new album was available as a free download.

I thought this was pretty strange. First of all, Goh's latest album is self published. These organizations don't represent him at all. Secondly, I contacted Goh directly regarding embedding mp3s of his tracks and also putting up a download link to his album and he, being the very nice guy that he is, had given me permission. All of this was prior to publishing it on the blog. Of course, because they did not represent him or even if they did, I'm sure they would not have bothered to ask him about it.

I'm a feeling a bit bothered about this as I've done nothing wrong. I had the express permission of the owner to help distribute his work. Yet here I was under suspicion for a non-existent crime. I find it a pretty absurd situation where the watchdogs are watching so intently they believe everybody is a criminal. Guilty before proven innocent.

So this brings me to the Digital Millennium Copyright Act and fair use. According to Wikipedia, fair use is determined by:

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.

So, you can see there are no real hard and fast rules for what determines if something is fair use or not. Ultimately it is up to judges on a case by case situation whether something has been fairly used or in violation of copyright laws. Now this law from the U.S. is basically an accepted precedent world wide and it covers not only written text but also movies, music and images including the album covers and artist pictures I have liberally sprinkled all over my blog.

This got me thinking. Am I indeed doing something wrong? I searched around the net for information whether I was in the clear or not regarding the Youtube links and pictures I so love to use. Well, according to the Electronic Frontier Foundation, I'm in the clear. My blog is non-profit. The links and pictures are for informative purposes. The lo-fi nature of videos on Youtube and the smallish size pictures are really just portions of the originals. Now, the last part, am I effecting the market value of the material? Damn right I am, but definitely in a good way. Music blogs bring attention to artists and their work through the magic of the internet where anybody can access this information easily. People are using music blogs to discover new music, swap opinions and make informed choices about music purchases. Music blogs are the viral in viral marketing.

So why all the hate and suspicion on the part of the music copyright owners to secretly spy on music blogs to see if they're enabling the piracy of music or not? Why this pre-emptive first strike on people who just simply like music, enough to put aside hours a day to write about it with no other ulterior motives outside of sheer passion.

The internet is the greatest tool for disseminating information there is. Without the many small music blogs I would not have discovered countless great artists and bands. Music blogs in the millennium are what word of mouth was in the time before the internet. Really, they're just an extension of asking your friends "So, what music have you been getting into lately?"

The irony in all of this is that the heavy handed nature of the copyright owners' reprisals on media "pirates" is that I've moved away from mainstream music releases and have turned more towards more obscure self published artists. Now I'm giving less of my money to the large organizations that own the copyrights and more directly to the artists, completely by-passing the revenue system they have been trying so hard to protect.

For sure, one of the factors for the reduction in CD sales is most definitely piracy via file sharing but another one that I think cannot be dismissed is that with the widening of the access to knowledge, such as the reading of online music blogs, consumers are being turned more towards alternative sources such as self published artists like Goh.

The state of music and music distribution is in a moment of great transition right now. How will we access music in the future? Will it be one where we cut out the middlemen and give directly to the artists? I sure hope so.