Thanksgiving weekend, the Federal Government, through the White House’s Intellectual Property Enforcement Coordinator Victoria Espinel and the Department of Immigration and Customs Enforcement (ICE), shut down over eighty (80) websites for copyright infringement. While many of the sites were for businesses that sold knock-0ff handbags, perfumes, etc., a fair number of the shuttered sites were music blogs like OnSmash.com and RapGodFathers.com. These sites have long been a double-edged sword for record labels. While the labels certainly aren’t pleased when an artist or executive’s email account gets hacked in search for snippets of unreleased material, the labels realize that these music sources are popular among their young clientele and are a free way to create “buzz” about an upcoming artist or a new musical release from an established artist. In fact, labels go to these sites in search of new artists and new material and sometimes the labels themselves “leak” new music to the sites to generate hype.
So the mass shutdown last month has sent shivers through the music community, particularly in the world of HipHop, where these sites are especially important and influential. The difficulty is what do you do with a site that has mixed-content – allegedly illegally leaked music and new artist’s music that is published on the site with consent – while the government tries to determine if they are dealing with piracy or “consensual” leaks? Right now the government has not provided the seized sites with any discovery or information, they have not even given the defendants a copy of the seizure order. So the defendants are not even aware of what they are being charged with while their businesses are shut down. They are not likely to find out within the next 60 days or so either.
Most of the sites are run by fans who get a thrill out of hyping their favorite unknown artists and even interacting with some of the stars personally from time to time. But they have a profound influence on the music scene and shutting them down without prior warning and them prosecuting cases against them while placing the defendants in “a black hole” as described by one lawyer in last week’s NY Times, is fundamentally unfair. The problem is that copyright infringement is a strict liability issue – it does not matter if you did not know the content belonged to somebody else or that the person who claimed he had permission is lying. If you post it, you are responsible. At the very least, Uncle Sam should have sent a cease and desist notice to the sites to give them an opportunity to remove illegal content.
For now the limbo situation has put a cloud over the sites and bloggers I have spoken with are wary about posting any new music. They worry that after the Feds finish with this round, they will start another round of “shoot first-ask questions later” prosecutions that will close down their businesses and sites. Its a new age and both the government and the recording industry have to find a way to reconcile the freedom and potential of digital music with the genre’s threat to intellectual property rights.