BY: DOUGLAS DONESON

Check out the hyperlink for THIS cool new and informative documentary from an up and coming film maker and download THIS recently uploaded mp3 from a hyper-local artist out of New Orleans’ 17^th Ward. If this post has gotten through the editors and onto the blog, those hyper links have been removed. Why? The use of another’s copyrighted property without the copyright holder’s authorization is called copyright infringement.

Wait.  Although copyright law protects the interests of author/creators of a work, isn’t the primary purpose of copyright law, which is stipulated in the Constitution, “to promote the progress and Science and the useful Arts”? [1]

Take a step back.  Tension within the legal field is not new.  Examples– federal law preempts state law[2], a minor a few days before his 21^st birthday is not allowed to knowingly purchase a car[3] but adults may give uninformed consent to police officers for a warrantless search[4], and aggravated cruelty to animals is a felony[5] yet countless acts of animal cruelty occurs on factory farms every day[6]. Although laws are designed to protect people living within a society,  sometimes they are terribly inconsistent.

Currently, music blogs – specifically hip-hop blogs – are being singled out as copyright infringers.

Quickly.  A blog is a blend of the term web and blog.[7] Blogs are usually maintained by one person.[8] Originally, they were link driven sites.[9] Today, they may be a mixture of links, commentary, personal thoughts, essays, downloadable music, videos, and advertisements.[10]

So hip-hop blogs are blogs essentially maintained by a “blogger” and his/her contributors. The “blogger” and his/her contributor’s, “blog” about hip hop.  This means that they link to hip-hop videos, music, concerts, facts, or narratives. They may also comment on or critique anything that may fall under the umbrella of hip-hop. Further, bloggers in an effort to promote obscure, regional, or up and coming artists, may upload songs to a blog so that readers may download them and listen to these unknown artists—all of this is an an effort to promote the hip-hop artists.

In 2010, towards the end of November, the U.S. Department of Homeland Security seized over 80 websites for alleged copyright and trademark violations.[11] Popular hip-hop blogs OnSmash.com and dajaz1.com were included in this large government seizure.[12] Erick Barnett, assistant deputy director of U.S. Immigration and Customs Enforcement said,

“One of our responsibilities [at Homeland Security] is the protection of copyright and trademarks…We’ve been doing this frankly for about 40 years at least, when we were the U.S. Customs Service.  Of course, back then, it was seizing container loads of mostly luxury goods that were coming into the United States, mostly from China.  Like a lot of crime over the last 10 to 15 years, this has now transitioned from flea markets and small vendors to the Internet…In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights…Really, what we’re talking about is the crime of theft…They could have had, as you say, maybe some labels that gave some work of artists. But in the larger picture, they had hundreds if not thousands of songs, movies, software titles available that the true copyright holder, therefore the victim, was not receiving any payment for.”[13]

It is worth noting the government notice that appears at seized hip-hop blogs:

“This domain name has been seized by ICE – Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court under the authority of 18 U.S.C §981 and 2323.

Willful copyright infringement is a federal crime that carries penalties for first time offenders of up to five years in federal prison, a $250,000 fine, forfeiture and restitution (17 U.S.C §506, 18 U.S.C. §2319)…”[14]

The government’s stance is simple. Hip-hop blogs are linking to and posting copyrighted material that does not belong to the hip-hop blog.  Essentially bloggers are violating some of the copyright holders exclusive rights listed in §106 of the Copyright Act. Further the government is claiming that the blogs are posting the copyrighted material without the copyright owner’s authorization.

While the government’s position is justified, it is also incomplete. It is incomplete because it does not take music culture into account. Many bloggers post music from their personal music collection. Frequently this music is not available on iTunes or in record stores. This could be because the album is out of print of because a particular artist has not acquired a distribution deal and therefore the artist’s music is not widely available. In effect music blogs promote artists in new geographic areas and throughout different generations.

Music labels and artists recognize the promotional effect of hip-hop blogs. The majority of the music hip-hop blogs post is supplied by labels or the artist themselves. Eskay, founder of Nah Right, arguably one of the most influential Hip Hop blogs on the internet, wrote in a post that “90% of the music being posted on rap blogs nowadays comes from, or is sanctioned by, the labels within the artist’s camp.”[15] Further, in an interview with Dan Zarella, a social media scientist, Eskay elaborated:

“In the online space, getting your music posted on the right blogs has become incredibly important to some artists, more so than even the quality of the music they’re putting out it seems. And it becomes a situation where PR people and label flunkies hound a handful of blogs for coverage, knowing that it will probably turn into more widespread coverage if they can just get so-and-so to pay attention.”[16]

Later in Eskay’s post on “Rap Blogging” and “Music Leaks,” he distinguishes between music intentionally “leaked” to hip-hop blogs and “the issue of unsanctioned premature leaks.”[17] He claims that rap blogs usually get cease and desist letters for the unsanctioned leaks. Eskay acknowledges the reasoning behind these premature leaks because “these are the tracks that are unfinished, or were stolen and leaked against the wishes of the artist or simply aren’t supposed to be out yet.”[18] Think of the disastrous situations that could occur here if for example someone leaked a song before its licenses were cleared.

According to Eskay, once a song is leaked prematurely or intentionally, cease and desist letters are moot. He scrutinizes the absurdity that transpires when a song is leaked on 5,000 blogs, but only a handful get cease and desist letters.[19]
“NEWSFLASH: Once a song has been leaked onto the internet, it’s a wrap. It’s over. There’s nothing you can do about it…”[20] In other words, once the song is leaked anyone who wants it can find it, download it, and own it for free.

Eskay then ends on a potent summation. He addresses copyright infringement issues but brings the discussion back to hip-hop culture in an effort to brazen out complaining artists—

“[L]et’s find some way to make this work for everybody. I don’t post entire retail albums on my site and never have.  I don’t allow people in the comments to post entire retail albums on my site either.  I also include iTunes and Amazon
buy links when requested or if I am so inclined. At the end of the day, we are fans of these artists and I don’t think anybody, bloggers or fans, is trying to just straight up disrespect their wishes and their pockets…This is Hip-Hop fam,
a culture built on hustling and getting over by any means necessary.  A lot of you ni&&as got rich rapping about this same exact mentality, yet when it comes back around full circle it’s a problem?”[21]

Here, a tension exists between the purpose of copyright laws and the people whose copyrights are being infringed. It is important that the artists, fans, labels, and bloggers reach a compromise.  The technology is willing to benefit or destroy all interested parties. Until then, why’s it gotta be the blog guy?

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[1] U.S. Const. Art I, § 8, cl. 8.