by Paul Alan Levy
In response to aggressive reporting on the blog Digital Music News about the contract terms that Apple has imposed on independent labels that lack the economic clout to negotiate their own specific deals regarding iTunes Radio, Apple sent a DMCA takedown notice to Scribd, where the blog had posted the contract so that readers could form their own judgment about the blogger’s criticisms.
In a letter to Apple’s counsel sent today, I have explained why the posting of the contract was fair use, thus why the takedown not was just a violation of the DMCA but also a form of copyright misuse in that the apparent purpose was not to preserve the market value of the copyrighted work but, rather, to impede unfavorable coverage. Rather than sue for wrongful takedown, however, Digital Music News has written a new story about the contract and posted the contract to its own servers. It remains to be seen whether Apple is ready to litigate the fair use issues by repeating its takedown notice.