Self-hosting is a huge PITA, especially if you don't want to give away your music for free: setting up and maintaining a streaming server and payment system is not trivial at all. Also, if you're not already a big name, self-hosting will make it unlikely for people to discover your music. This was the big thing about SoundCloud: you followed people you like and saw what they liked. The solution is what Bandcamp does: only host stuff where the copyright situation is clear. Which means: people selling the music they themselves created. This of course excludes mixes/remixes of copyrighted music.

So you're saying there's space for a "DIY self-hosting" product which integrates with a promotion network?

No, I don't think self hosting is the solution. I still remember the times when every label had its own little online shop for mp3s. Those were dark times: not only did you have to register at every shop separately, most of those shops where just plain unusable: no pre-listening, broken id3 tags, downloading each song from an album separately, charging extra for higher quality, no accompanying artwork, etc. As I've already written: I think Bandcamp does it very well, and IMHO it is currently the best shop for indie musicians to sell their music online.

If you're promoting music which is deemed to be copyright infringing you will have the same legal problems as if you were hosting it yourself.

Sounds like this is something Gumroad could do if they added a marketplace to list the items for sale on their platform. Difficult to categorize all those items but worth it. I'd browse.

I emailed them ages ago about being able to browse, but them and vhx.tv are not really into doing that now. Maybe later but for whatever reason they want people to reach their site and buy through the content creator's reach instead of having a searchable archive.

Building out that promotion network is the hard part.

A thousand times YES!!!

And then they send DMCAs to your hosting company and you get your hosting account suspended. Yeah, gotta fix the system...

In my experience, it's easier to explain to your hosting company than to a company with no meaningful mechanism for appeal. The system definitely needs to be fixed - I'm just proposing practical solutions in the interim. It seems unlikely to me that these problems will be fixed any time soon since fixing them would run counter to the agenda of those with the resources to lobby politicians.

Stop and think for a moment about all of the "cloud" services you use and rely on daily. Then think about what you'd do if suddenly some algorithm told the company running that service to cancel your account and bar you from access, without a way for you to appeal. For some services, you're really hosed. I've definitely been re-evaluating my decision to rely so heavily and exclusively on faceless companies for important things as E-mail and web hosting.

You do know that the DMCA applies even when you're self-hosting right?

No, the notice, takedown, etc. provisions that apply to third-party hosts do not, those are part of a adage harbor provisions for third-part hosts of user-supplied content against copyright liability that exists without the DMCA.

DMCA Title II only applies to service providers hosting third-party content. It does not apply to (or make sense for) first-party content hosting.

Yes, but you can cite fair use. The problem isn't with stolen music, it's with things like mashups being taken down.

Eh? Mashups are "stolen music" by any reasonable definition.

No, they clearly fall under fair use.

Really, under which clause?

Is it for educational purposes? Using only a small portion of the original work? Is the creator deriving no commercial benefit?

(PS: Fair Use is a legal defense, not a positive rights clearance).

See also: Bridgeport Music Inc vs Dimension Films (https://en.wikipedia.org/wiki/Bridgeport_Music,_Inc._v._Dime...)

It's often at least the latter two things. Sampling is huge, though, without it we wouldn't have a lot of music. IANAL but there's clearly precedent.

So people are releasing these totally anonymously? Self-promotion is very much a commercial benefit.

Hah. That's taking things too far.

Most mashups I hear make heavy use of their component tracks, and I'm not even sure you could reasonably claim it as "sampling", much less fair use.

I'm highly out of the loop. Why would someone self hosting their own music be prey to DMCA?

They might fall under Title I (which is the transcription of the WIPO treaty to US law), but most mentions of DMCA are about Title II (the "Online Copyright Infringement Liability Limitation Act") which only applies to service providers, not first-party content hosting.

First-party hosting still needs an ISP though, and that ISP can be sent DMCA notices.

What is the responsibility of the ISP to its subscribers in that case? I.e. would I reasonably be able to take legal action against them if they deny me the service for what turns out to be a frivolous DMCA claim?

> would I reasonably be able to take legal action against them if they deny me the service for what turns out to be a frivolous DMCA claim?

The point of the DMCA Safe Harbour provision is that the OSP is protected if they don't involve themselves and just proxy claims assuming their are in good faith/correct. So no. You may have a claim if the OSP does not restore service after a counter-notice with no followup legal action from the claimant but they're allowed 10-14 business days for that one so you may be out for 3 weeks without any recourse, but OSPs can also rely on their TOS to make that moot and even ignore the counter-notice altogether.

You probably won't even have a claim against the originally alleged copyright owner: the notice of copyright infringement only requires "good faith belief" under no penalty of perjury.

> You probably won't even have a claim against the originally alleged copyright owner: the notice of copyright infringement only requires "good faith belief" under no penalty of perjury.

That you don't have a specific DMCA-derived or declaration-under-penalty-of-perjury-derived cause of action doesn't mean you don't have a standard defamation-based cause of action.

> What is the responsibility of the ISP to its subscribers in that case?

Largely, to fulfill whatever is in their terms of service, though so long as they follow the counternotice procedures in the DMCA -- which require you first to file a counternotice -- they have no liability to you for removing content in response to a facially valid (even if substantively completely false) DMCA claim, even if they would otherwise under general principles of law or your terms of service (that's why the DMCA notice/counternotice provisions are called "Safe Harbor" provisions -- they provide a shield from existing copyright liability and liability to the user whose hosted content is removed, provided, in the first case, that the notice provisions are adhered to, and, in the second, that the content was removed in response to a DMCA notice and the counternotice provisions are adhered to.)