You never forget your first DMCA takedown notice. In my case it was the Perfect Pitch incident, in which an incompetent business was sending out automatic takedown notices to Google for any website that contained a combination of the words Burge Pitch Torrent. That situation, which affected The Session, was resolved with an apology from the offending party.

Now I’ve received my second DMCA takedown notice. Or rather, my hosting company has. This time it involves Huffduffer.

When I created Huffduffer, I thought about offering hosting for audio files. One of the reasons I decided not to is because of the potential legal pitfalls. As it stands, Huffduffer is pretty much entirely text—it just links to audio files elsewhere on the web. That’s basically what an RSS enclosure is: another form of hypertext.

Linking is simply the act of pointing to a resource, and apart from a few extreme cases, it isn’t illegal.

Now it could be argued that pointing to an audio file on another site through a Flash player (or HTML5 audio element) is more like hotlinking with an img element than regular linking through an a element. The legal status of hotlinking isn’t quite as clear cut as plain ol’ linking, as explained on the Chilling Effects site:

When people complain about inline images, they are most often complaining about web pages that include graphics from external sources. The legal status of inlining images without permission has not been settled.

So the situation with inline audio is similarly murky.

Here’s the threatening email that was sent to the hosting company:

Notice of Copyright Infringement. {Our ref: [$#121809/228552]} Sender: Robert Nichol

AudioGO Ltd

The Home of BBC Audiobooks

St James House, The Square, Lower Bristol Road

Bath

BA2 3BH

Phone number not available Recipient: Rackspace Hosting RE: Copyright Infringement. This notice complies with the Digital Millennium Copyright Act (17 U.S.C. Ã‚Â§512(c)(3)) I, Robert Nichol, swear under penalty of perjury that I am authorised to act on behalf of AudioGO Ltd, the owner(s) of the copyright or of an exclusive licence in the work(s) The Moving Finger by Agatha Christie BBC Audio. It has come to my attention that the website huffduffer.com is engaged in the electronic distribution of copies of these works. It is my good faith belief that the use of these works in this manner is not authorised by the copyright owner, his agent or the law. This is in clear violation of United States, European Union, and International copyright law, and I now request that you expeditiously remove this material from huffduffer.com, or block or disable access to it, as required under both US and EU law. The works are The Moving Finger by Agatha Christie BBC Audio. The following URLs identify the infringing files and the means to locate them. https://huffduffer.com/TimesPastOTR/68635 (IP: 67.192.7.4) The information in this notice is accurate and I request that you expeditiously remove or block or disable access to all the infringing material or the entire site. /Robert Nichol/

Robert Nichol Wednesday April 18, 2012

Initially, my hosting company rebutted Robert Nichol’s claim but he’s not letting it go. He insists that the offending URL be removed or he will get the servers taken offline. So now I’ve been asked by my host to delete the relevant page on Huffduffer.

But the question of whether audio hotlinking counts as copyright infringement is a moot point in this case…

Go to the page in question. If you try to play the audio file, or click on the “download” link, you will find yourself at a 404 page. Whatever infringing material may have once been located at the end of the link is long gone …and yet AudioGO Ltd are still insisting that the Huffduffer page be removed!

Just to be clear about this, Robert Nichol is using the Digital Millennium Copyright Act—and claiming “good faith belief” while doing so—to have a site removed from the web that mentions the name of a work by his client, and yet that site not only doesn’t host any infringing material, it doesn’t even link to any infringing material!

It seems that, once again, the DMCA is being used in a scattergun approach like a machine-gun in the hands of a child. There could be serious repercussions for Robert Nichol in abusing a piece of legislation in this way.

If I were to remove the page in question, even though it just contains linkrot, it would set a dangerous precedent. It would mean that if someone else—like you, for instance—were to create a page that contains the text “Agatha Christie — The Moving Finger” while pointing to a dead link …well, your hosting company might find themselves slapped with a takedown notice.

In that situation, you wouldn’t be able to copy and paste this markup into your blog, Tumblr, Facebook, or Google+ page:

<a href="http://dc436.4shared.com/img/892695085/b3c907d3/dlink__2Fdownload_2FaKhc8m9b_3Ftsid_3D20120318-72646-b4a59ab0/preview.mp3">Agatha Christie — The Moving Finger</a>

Remember: that link does not point to any infringing material. It points to nothing but a 404 page. There’s absolutely no way that you could have your site taken offline for pointing to a file that doesn’t exist, right?

That would be crazy.