[tptacek]

There are two major components to DMCA safe-harbor compliance. The first is that you honor takedown requests; unfortunately for software entrepreneurs, this seems to be the only DMCA component that is widely understood.

The second major component is that you not operate your service with direct knowledge of infringement. A simple way to illustrate this is that if you have a screenshot of your application being used to play Madonna tracks, you are obligated to hunt down those tracks and remove them yourself. If it can be shown that you purposefully don't do that, you can end up forfeiting safe-harbor.

You are probably happier in the long run for shutting this project down. While you clearly want to believe that you aren't infringing copyright, which is an admirable sentiment, you obviously aren't taking advantage of "fair use" by giving your users direct access to copyrighted music under your own branding.

[Natsu]

There are a few other formalities that can trip you up, like having a registered DMCA contact. If you're going into a business like this, you probably want to get a lawyer to explain it all to you. There are just too many gotchas out there and you'll be a magnet for legal threats.

EDIT: Also, it's "safe harbor" not "fair use"--the article gets it wrong. One more reason to have a lawyer explain your obligations to you before you get into something like this.

[mjn]

Fwiw, it's also possible for any third party to check if you've complied with that particular formality, since the U.S. Copyright Office provides a directory of all companies that have registered a DMCA agent: http://www.copyright.gov/onlinesp/list/a_agents.html

[Natsu]

One thing that really stands out is how many people don't appear to comply with that. The big sites seem to, but not too many others.

[dpe82]

Which is bad, because without registering an agent, you have NO safe harbor protection.

[AnthonyMouse]

The interesting thing is that what happens without the safe harbor is not a known quantity. The safe harbor is like immunity, but lack of immunity isn't the same as liability. But in order to find out, somebody has to take it to court, and the entities small enough to have not registered a DMCA agent will tend to settle or be bankrupted by the litigation costs before the issue makes it to an appellate court.

[Natsu]

Yeah, it's not something we're likely to see put to the test, as if you can afford the legal bills to fight a copyright action in federal court, you surely can afford the small filing fee to register a DMCA contact in the first place in order to fend off the likelihood of much larger fees later.

[yeukhon]

+1 on tptacek's explanation.

> What I did was simply store links to music files hosted elsewhere on the internet and acted as a conduit for these music files, allowing people to search songs by title/artist and play/create playlists using my interface.

That's exactly why a lot music are not playable on the old turntable.fm. They are blocked even though they are searchable (which talks to various APIs as well?)

For someone who co-ran a popular BBS forum in the past with millions of Chinese users, I and my other admins got a lot of notices and threats to arrest us. I was also in my high school year as well. Just a few years ago. We didn't shut down the site, it still exists and is still pretty popular. We changed our domain name because it was somehow conflicting with another television company's name and we took down certain torrent files at their requests. We still allow people to upload these illegal contents but we just play nice. I guess we weren't the top players like PirateBay so we haven't been told that we must shut down. We just receive notices. But do play nice.

> I spent a lot of time building HypedMusic. I’ve learned a lot of really cool stuff along the way

You should talk to them. You should inform your users about this and think about future plans. Maybe instead of allowing them to search for illegal contents you can play a demo and link to iTune, soundcloud for purchase? If you have a lot of users you should look for partnership. With users, you should come up with new model. It will be tough, but think about it for a moment. Otherwise you have learned a lot by developing an app yourself. That's a plus already.

[MichaelGG]

What if I've never heard of Madonna? Does the law actually encode some sort of pop-knowledge into itself? If I see a screenshot of an apparently home-made video am I supposed to think "small band that probably intentionally released this video to get more attention = OK" or "probably a filter added by a popular band that doesn't need more attention = Remove"?

This is ignoring jurisdiction, too. IIRC, AllOfMp3 operated for a while since in Russia they could buy a blanket copyright licensed and successfully used that to legally make sales until Visa illegally turned off payment and finally the Russian government got them to acquiesce. Yet the site was legal, despite everyone else accusing it of infringement.

Edit: Also, yes, perhaps the law is saying "well if you really knew" and leaving it to the courts. But there's also cases of where Viacom uploaded content, then sued over it, not knowing they themselves had uploaded (and hence licensed it) to YouTube.

[URSpider94]

What if I've never heard of Madonna? Does the law actually encode some sort of pop-knowledge into itself?

No, but the fact that the site owner is using these screenshots to advertise his service obligates him to do due diligence on the copyright status of those tracks. Coincidentally picking one of the most popular artists of the last quarter-century to promote your site rings a little hollow.

Your jurisdictional argument also doesn't hold water. First of all, the site owner was operating in the USA, so he's bound by US law. Second, buying a "blanket copyright" in Russia doesn't confer rights to sell content in other countries.

[perlpimp]

If someone buys content from russia they are dealing with russian entitiy not with US one. Given that he can probably shore up some sort of company and do business through that via appointed trustee.

[anigbrowl]

What if I've never heard of Madonna? Does the law actually encode some sort of pop-knowledge into itself?

A reasonable* person would have heard of Madonna and would respond to such evidence of infringement in a timely fashion.

* The definition of 'a reasonable person' is a vexed one. While it's popularly understood to mean something like 'a regular Joe/Jill,' and that's good enough for many purposes, it might be more helpful to think of it as 'someone whose behavior could be reasoned ahead of time by a third party.' So if you're running a site dedicated to music, and given that Madonna is one of the most famous music performers in the world, it's logical (reasonable) to assume you would know who she is. OTOH if you were running some antiquarian maps hosting site and someone uploaded a Madonna video there, you might be excused for not appreciating the significance of same in any action for damages.

/NAL

[Guvante]

> The second major component is that you not operate your service with direct knowledge of infringement.

By advertising he is kind of making your argument invalid. "This is the kind of music you can get" should involve some level of analysis to ensure you aren't accidentally listing copyrighted content if you truly want to live under the safe harbor laws.

For instance Youtube makes a best effort in all of its advertising to only show content that is legitimate. If some gets through that is fine, but you should at least spend a bit of time making sure you aren't accidently listing a well known band.

[parham]

I doubt it's illegal to embed a track that's been uploaded by the copyright owner, as they can just disable embedding. I'm assuming it becomes illegal if the uploader didn't own the copyright and was uploading the track illegally. This is impossible to verify unless the owner of the copyright gives a notice, YouTube does all it can, if they can't catch this then how can a normal user do so.

[jarrett]

I haven't seen the case law, but from the following commentary, I'd say the issue isn't so clear-cut:

> However, if the service provider becomes aware of a "red flag" from which infringing activity is apparent, it will lose the limitation of liability if it takes no action. The "red flag" test has both a subjective and an objective element. In determining whether the service provider was aware of a "red flag," the subjective awareness of the service provider of the facts or circumstances in question must be determined. However, in deciding whether those facts or circumstances constitute a "red flag"—in other words, whether infringing activity would have been apparent to a reasonable person operating under the same or similar circumstances— an objective standard should be used.

Source: http://www.gpo.gov/fdsys/pkg/CRPT-105hrpt551/pdf/CRPT-105hrp...

So, the defense that infringement is "impossible to verify unless the owner of the copyright gives a notice" probably doesn't apply. If the site owner reasonably should have known of the infringement, safe harbor protection is forfeited.

The moral is that you need to be proactive about removing infringing content. Yes, it's true that YouTube doesn't take down every offending video. But they (at least claim to) actively monitor for infringement to the best of their abilities:

http://www.youtube.com/t/video_id_about

Disclaimer: Don't take my advice here as a comprehensive guide to DMCA compliance. My comments are a far cry from that.

Edit: I should add that I'm not offering an opinion as to whether the OP's site violated the DMCA, or whether the RIAA's takedown was valid. My comments were meant to apply generally, not to the OP's specific case.

[parham]

You could argue that, YouTube has maintained their safe harbour, and hence they're a reasonable entity. It wasn't apparent to them that copyright was being breached so the "red flag" is not apparent to a reasonable entity, i.e. if the embeder is liable so is YouTube. This makes sense but I don't if it would be convincing elsewhere.

[jarrett]

> You could argue that, YouTube has maintained their safe harbour, and hence they're a reasonable entity.

That's not how the reasonable person standard works. "Reasonable person" is a term of art. A reasonable person is a sort of thought experiment that's used often in law. We imagine a hypothetical person who is in most respects like the average person, and who makes sound judgments based on the information available to him or her. We then hold real legal entities, such as website proprietors in DMCA cases, to the standard of this hypothetical reasonable person. For example, we say that a reasonable person running such and such website would have noticed copyright infringement, and thus the website's proprietor was obligated to remediate the infringement.

The fact that YouTube has maintained its safe harbor means YouTube is successful in that regard. It doesn't tell us anything about the legal definition of a "reasonable person."

[parham]

Oh ok, I guess I have a lot to read up on, would you know any good free sources of case law? and/or anything interesting related to DMCA?

[jarrett]

The PDF I linked to in my post above has a great deal of useful information. The commentary at the beginning is especially helpful.

If you're running a website where DMCA safe harbor protection is important, you'll want to discuss a compliance plan with your company lawyer.

[danielweber]

Do you think Madonna uploaded those videos?

I'm not asking "is it mathematically possible?" I'm asking "do you really think Madonna, or Madonna's agent, uploaded that video?"

The court system very rarely works on the concept of "well, it could have been legit." If you buy a bunch of speakers 90% off out of the back of a van in an alley with their serial numbers scratched off, "well, it could have been legit" will not fly very far.

[Crito]

"Do you think Madonna uploaded those videos?

I'm not asking "is it mathematically possible?" I'm asking "do you really think Madonna, or Madonna's agent, uploaded that video?""

Isn't that what record companies do these days? I thought that was the idea behind the Vevo stuff. Between that and Youtube's audio fingerprinting, it seems reasonable to assume that if a pop star's song is on youtube, it is because their record company put it there.

[mathattack]

I was thinking the same thing. The website appears to be making it very easy to aid and abet (not in the strict legal sense) piracy. It's very shaky ground.