Ryan Spaulding, the proprietor of Boston-based music blog Ryan’s Smashing Life, noticed something odd happening to his archived posts a few months ago. His blog, founded in 2006, has expanded to include four contributors and now rakes in about 25,000 hits a month. Chump change compared to megablogs like Nah Right or Stereogum, which average at least twice that daily, but enough to attract a modicum of ads and a devoted community of readers.
But in November, some of Spaulding’s posts, both recent and older, long-forgotten ones, started disappearing from his site. There didn’t seem to be any rhyme or reason to it. One moment they were there, the next they were gone. Confused, he started comparing notes with other music bloggers, and they noticed a trend. A lot of posts across the Web, on everything from Abba to Zappa, had vanished.
That, of course, sparked countless e-mail-conspiracy theories. Blogger chat rooms buzzed with speculation about the mysterious force behind the surge in disappeared posts. Open e-mails to the Recording Industry Association of America [RIAA] began popping up at such a rapid rate that you’d think they contained new Justice mp3s.
Eventually, though, a consensus emerged: Each post takedown occurred on a blog hosted by the Google-owned Blogger platform, the publishing system used by the majority of mp3 sites, particularly those founded prior to 2007, when the open-source WordPress software became the vogue. Google, the bloggers believe, has quietly changed the methods by which it enforces its user agreement. Whereas in the past, a blog owner would receive a warning before a post’s removal, Google is now simply hitting the delete button. In Spaulding’s case, this means that posts written over the past year or more on Wilco, the Annuals, the Red Hot Chili Peppers, Matisyahu and Earth, Wind & Fire are gone.
“I’d received the label’s press releases and followed their directions, spending my time and energy to promote their albums,” explains a frustrated Spaulding. “By pulling down my post, they destroyed my intellectual creativity, the very same thing they’re erroneously accusing me of doing. Say someone had linked to that post, or [blog aggregator] Hype Machine — it’s gone completely. If I go into my Blogger table of contents, it’s gone. Not de-published — gone.”
Spaulding says he plays by the understood rules, and is doing the same thing that thousands of other music bloggers are doing. “I’m not leaking albums, not putting up three mp3s. Just the one they wanted. And they start erasing everything, with the threat of a lawsuit. People are afraid.”
And perhaps they should be. U.K.-based Web-scouring copyright detective Web Sheriff will soon open its first U.S. office, no doubt spurred by its success in policing the Web for unauthorized mp3 leaks. Music bloggers are bracing themselves for a new round of scrutiny, and are taking measures to prevent the RIAA from working its way into their music blogs.
After seeing his old posts on Elliott Smith and Tim Hardin disappear without warning, local writer and L.A. Weekly contributor David Greenwald decided to switch his The Rawking Refuses to Stop! blog from the Blogger to the WordPress platform, which is what a lot of old-school Blogger devotees are doing. In Greenwald’s case, he’d received an e-mail from Blogger informing him that the expurgated posts violated the Digital Millennium Copyright Act [DMCA], passed by Congress in 1998 to regulate the then fledgling problem of Internet copyright infringement. Despite multiple e-mail retorts to Blogger, Greenwald has yet to hear back — a common experience among bloggers whose work has been deleted.
“The first was a collection of Elliott Smith live covers, which actually exists in several other posts on the site, which were untouched,” recalls Greenwald about his own blog. “You’d think it wouldn’t have any legal problems, given that Smith’s stuff’s on Archive.org and freely traded. In the case of the Hardin post, the mp3 links had been dead for over a year.” Greenwald adds that he’d gladly comply with a takedown notice if given a warning, which is historically how such matters have been handled. In fact, he’s done so in the past.
You’d be hard-pressed to find a blogger lacking a few war stories regarding the RIAA or its European arm, the International Federation of the Phonographic Industry. But actual lawsuits have been rare — other than the infamous 2006 Ryan Adams case, in which two bloggers were sued by Universal Music for leaking part of Adams’ Jacksonville City Nights. More recently, Culver City Guns N’ Roses fan Kevin Cogill was arrested for uploading unreleased tracks from Chinese Democracy. In the former case, the pair were sentenced to two months’ house arrest and two years’ probation; the latter case is pending.
But lately it’s hard to ignore a certain nervousness permeating the blogosphere, with many sure that the ever-erratic RIAA is continuing its haphazard approach to enforcement. Even the biggest music blogs, such as Nah Right, which rakes in nearly 2,000,000 views each month, are worried. More influential in the hip-hop world than any old media outlet, Nah Right, owned by a writer named Eskay, has become a virtual Canal Street for rap fans, offering everything from news aggregation and leaked singles to Web videos. A post on Nah Right, which operates as a de facto portal for smaller blogs, tacitly implies that the material is cleared for circulation in the piranha pool.
In three-plus years of blogging, Eskay has received his fair share of cease-and-desist letters (mostly, he says, from draconian Atlantic Records). But he maintains that anything posted on Nah Right has been expressly approved by either label or artist. When asked, he says, he’s deleted all potentially offending material and is allowed to continue operating with relative impunity. Nonetheless, he worries that the capricious and ever-desperate RIAA might soon crack down further.
“It’s definitely something I think about often,” says Eskay. “I don’t want to wind up the DJ Drama of the blog world [referring to the Atlanta mixtape kingpin arrested in a January 2007 sting operation for allegedly bootlegging mixtapes]. I try to respect the artists and the labels.”
And, really, only the most Luddite of labels would have a problem with Nah Right and its brethren. The dynamics of promotion have changed dramatically, with early online buzz now creating an incubator for later commercial success (see Gnarls Barkley, Arcade Fire and Lily Allen). Even Web Sheriff believes that it’s in the best interests of the labels to dole out at least one or two promotional mp3s prior to an album’s release.
John Giacobbi, Web Sheriff’s managing director, says that his company recommends to its clients (XL Recordings, the Domino label and George Michael among them) that they give fans two tracks prior to release. “At the end of the day, all most blogs are guilty of is overexuberance,” Giacobbi says by phone from the company’s London headquarters. “Our strategy is to try to engage blogs and fans and articulate the certain ground rules for any prerelease. What they can get for free and what they can’t. For the most part, they’re willing to play by the fair rules of the game.”
In late November, Web Sheriff made headlines when it sent a menacing letter to popular Brooklyn band Grizzly Bear, which posted an illegal leak of Animal Collective’s “Brother Sport” on its band site. Grizzly Bear was forced to publish an apology to Animal Collective, and keep it posted for at least seven days. (There was no mention of whether Grizzly Bear was allowed to watch television during the interval.)
Giacobbi says he hasn’t heard of a shift in RIAA blog policy, but admits that such a change wouldn’t surprise him. Nor would it shock Wendy Seltzer, a fellow at Harvard’s Berkman Center for Internet and Society and one of the founders of Chilling Effects Clearinghouse, an organization designed to help Internet users understand their rights in the face of C&D threats.
“It sounds like some arm of the recording industry is getting more aggressive about enforcing copyright, and is pressing Blogger to respond more rapidly,” speculates Seltzer. “I’m not sure what’s motivating it. Many labels think blogs are good publicity, so I can easily believe that one hand sends out the mp3s and the other bears a C&D letter.”
Seltzer noted the Sisyphean nature of stymying offending posts, likening it to a game of Whac-a-Mole, with two or three new sites popping up for each one shut down. One source at the RIAA who declined to speak on the record seems fatalistically resigned to the necessary evils of blog promotion, insisting that there’s been no change in policy: The RIAA continues to send its master list of offending URLs to Google/Blogger, which then deals with the problem. According to the same source, the RIAA’s chief focus has become leak control.
But none of this explains why Blogger is deleting year-old Elliott Smith songs that can be legally accessed elsewhere. All arrows, however, point to an unacknowledged switch in Google’s corporate policy. Though its corporate brass declined an interview with L.A. Weekly, Andrew Pederson, a spokesperson for the Mountain View–based company, explained via e-mail, “When we are notified of content that may violate our terms of service, including clear notices of alleged copyright infringement, we act quickly to review it, and our response may include removing allegedly infringing material. If material is removed, we make a good-faith effort to contact affected bloggers using the e-mail address they set up when they signed up for Blogger. This is in compliance with the DMCA, which requires that users receive notification after material has been removed.”
Indeed, nowhere in the fine print of the DMCA does it state that any agency is required to notify bloggers prior to the deletion of their posts. Meaning that in the five years since purchasing Blogger’s parent company, Pyra Labs, Google has been extending warnings as a common courtesy. Now, it just sends an obituary notice. Which raises the question: Did Google finally get fed up dealing with unruly bloggers? Was there some sort of back-office conversation with the RIAA? Does it just really hate MGMT?
Whatever the answer, a lot of bloggers are jumping platforms. “I’m switching to WordPress immediately. The RIAA, or Google, obviously doesn’t seem to know what the labels are doing,” says Heather Browne, the writer of the popular I Am Fuel, You Are Friends, which was recently named one of the U.S.’s five best music blogs in a Stereogum poll. “Most of the tracks posted are provided to bloggers, and nearly all are willing to take a track down if contacted. Sometimes, people just make a mistake. Cracking down on a couple blogs will never stem the problem of illegal downloading. This is how things have worked since blogs started five years ago. The labels just need to embrace it at some point.”
Few industry outlooks come more panoptic than that of Ashley Jex, who writes the Rock Insider blog, plays bass in the Monolators and formerly handled new media for Capitol Records and Suretone Records. Jex foresees a future in which the labels attempt to further assert control over their catalogs, inking deals — similar to current pacts with sites like YouTube, Imeem and MySpace — that guarantee them a share of online revenue in exchange for streaming content.
“Blogs will never die, but the golden age of the guerrilla blogger posting whatever they want is coming to an end,” says Jex. “There will be arrangements for ad-sponsored content that you can put on your blog, in the vein of sites like Hulu. Eventually, there will be software in place within all the major blog platforms — Movable Type, WordPress and Blogger — where if you’re trying to post an infringing content, you won’t be able to publish. At least, that’s the direction it seems to be heading.”
Perhaps most ominous for music bloggers are the reported conversations between the RIAA and Internet service providers. ISPs already possess the ability to monitor traffic flow based on Web addresses; on the copyright-enforcement horizon is a new tool called “deep packet inspection.” A technology with the potential to give copyright holders the upper hand in scouring the Web for infringers, deep packet inspection is currently employed primarily in law enforcement. If used for policing copyright infringement, however, it would allow ISPs and the RIAA to decrypt and track files sent across the Internet. Suddenly, a bunch of telecommunications and music companies would be given the ability to monitor files; in essence, to filter the Internet, a frightening proposition that would make a few thousand deleted blog posts look quaint.