p2pnet - rss feed: ‘Fair Use’ doesn’t count in DMCA take-downs
p2pnet news view P2P | Freedom:-The US Fourth Amendment, “guards against unreasonable searches and seizures, and was designed as a response to the controversial writs of assistance (a type of general search warrant), which were a significant factor behind the American Revolution,” says the Wikipedia.
But it doesn’t apply to Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA, reckons RIAA general factotum Matt ‘The Dentist’ Oppenheim.
Now Universal says Fair Use, which is supposed to allow limited use of copyright materials without the owner or owners’ permission, doesn’t apply either.
Universal Music told US district judge Jeremy Fogel take-down notices requiring online video-sharing sites to automatically remove content, “need not consider whether videos are protected by the ‘fair use’ doctrine,” says Wired.
Dance to the Music
Once upon a time little Holden Lentz used to like Prince. These days “He’s all about Chuck Berry,” his mother, Stephanie, told p2pnet.
But back when his Purpleness was still a favourite, Holden, a toddler, would jig in time to ‘Let’s Go Crazy‘ and Stefanie posted a YouTube video of her son doing his thing.
Totally harmless, any reasonable person would have thought.
But Universal and Prince violently objected to this awful infringement of their copyright.
The EFF (Electronic Frontier Foundation), acting for mother and, in effect, son, says Vivendi Universal’s claim is rubbish and company, the biggest of the Big 4 labels for whom suing their customers is now standard practice, should be held accountable, “for misrepresenting that her fair use violated its copyrights”.
But in what Fogel said was a “case of first impression,” Universal attorney Kelly Klaus said Universal or other copyright holders, “are not liable for damages when somebody asserts fair use to reverse a takedown notice,” says Wired, going on »»»
Klaus and the judge agreed that damages have been awarded when a sender of a takedown notice falsely represents copyright ownership. But in this case, Universal owns the rights to Prince’s song.
“Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?” Fogel asked Klaus.
“I don’t think ‘fair use’ qualifies,” Klaus answered.
EFF staff attorney Corynne McSherry said the DMCA’s damages clause “intended to prevent misuse of takedown notices,” even when there’s a fair-use defense.
Fogel, who did not indicate when he would rule, said “It’s a very important issue of statutory interpretation.”
Adds Wired:
“While there is no bright-line rule, the factors to consider whether a video that’s uploaded to a file-sharing site is a fair use are: how much of the original work was used, whether the new use is commercial in nature, whether the market for the original work was harmed, and whether the new work is a parody.”
.
.Stumble It!
RIAA general factotum - (ex-)RIAA-er Oppenheim rears his head, October 4, 2007
Wired - Universal Says DMCA Takedown Notices Can Ignore ‘Fair Use’, July 18, 2008
Let’s Go Crazy - Vivendi Universal & Prince vs Baby Holden, July 16, 2008
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July 21st, 2008 at 11:27 am
Prince is the biggest (smallest?) crybaby in music today. Along with Lars, Dre and Sheryl.
July 21st, 2008 at 1:03 pm
You’re missing the point; To the record companies, NO use is “fair use”.
July 21st, 2008 at 1:21 pm
On michaelgeist.ca, a creative anonymous user filed an “amicus brief” for this case, in audio form.
“They Indeed Have Gone Crazy”
http://www.michaelgeist.ca/content/view/3197/125/
July 21st, 2008 at 2:23 pm
Unfortunately in the UK for us there is NO fair use law.
July 21st, 2008 at 3:12 pm
this is absolutely nuts. i mean, seriously. what’s next? a man and wife putting their wedding video online where they dance to music and them being sued for copyright issues?
July 21st, 2008 at 4:25 pm
It’s reasonable that music can be played at weddings, certainly, and even recorded in a wedding video. No artist is going to object to that. But placing it all online where the public can view it is very different, it’s no longer private for fair use. This takes the control of distribution and how the artists work is being presented and perceived away from that artist, doesn’t it? I wouldn’t care if it were MY tune, frankly, but shouldn’t Prince be entitled to say “No thank you, I don’t want somebody’s little kid associated with my music in world wide distribution.” Shouldn’t he be entitled to this? No? Or perhaps expressed a different way, you may be pleased that someone likes your work, but wouldn’t you personally wish to retain control over how your work is broadcast all over the world? I surely would. I dunno. I figure the work belongs to the creator and they should have this control. This just seems so reasonable to me.
July 21st, 2008 at 6:01 pm
I wouldn’t pay any attention to Sam.
It’s been a few months but he had already admitted that
he just posts from work to stir people up for fun.
The definition of troll.
don’t feed them.
July 21st, 2008 at 6:04 pm
I remember that pretty well.
He got ‘upset’ with me and started posting under my
name for a bit. Didn’t work out too well since Jon knows my
RL name and addy.
Ohhhh for an ‘ignore’ feature.
July 21st, 2008 at 6:45 pm
Hippie, I don’t post from work. I’m self employed all my life and work from home. And Dreddsnik, that’s wholly untrue. Utterly false. I’ve never posted here as anyone but Sam. Jon would know all of this, so ask him. He answers private notes.
It may be that folks working in applied art and creative careers may empathize more readily with other artists than those who are not. Certainly there is a pride of quality and accomplishment for the bus driver and his route, or the waitress and the tables she serves, or the high school janitor and the floors he waxes. Honorable professions all. But a reasonable observer might also recognize a very different and special relationship between an artist and their creations. This unique paradigm of an artists attachment and protection of their own creative works is something long recognized and acknowledged throughout history, and is the basis of the kind of control carved out by law for the artists of today.
I’m no lawyer, (and I have nothing to do with music or recording, either) but Fair Use should extend to personal use, or very limited use on a broader scale. But taking a good sized chunk of a song and then broadcasting it in a way not intended or appreciated by the artist just seems unreasonable to me and i see why Prince might object. I’d hope for those rights of control for my own works even as I’d also wish for the right to make that video privately and enjoy it privately without authorization, but not necessarily be able to indiscriminately broadcast it all over the globe. That’s a very fair distinction, I think.
July 21st, 2008 at 10:00 pm
By the way u must b careful of what u whistle or hum now if u want to avoid copyright infringement. This is especially relevant in public, but even in the privacy of your own home vigilance is needed since a family member may report u. Even if alone in the shower, since those viewing through spycams may report u. Since I shouldn’t be discussing this I may disappear soon.
July 22nd, 2008 at 5:24 am
Am I to believe that Prince has actually seen this clip and has personally asked for it to be removed?
July 22nd, 2008 at 8:52 am
I think that’s a safe assumption, unless he’s an even bigger moron than we imagined.
July 22nd, 2008 at 10:37 am
Sorry Sam, but the above makes you sound like a control freak. Copyright gives you a limited monopoly. Unfortunately, in their greede, many rights holders forget the limited part. If you want to control every possible way your work can be used, then don’t release it. Even safer, don’t even make it. That will give you the total control you seak. Otherwise, it’s almost certainly a given that people will use your work in a way you don’t aprove of.
July 22nd, 2008 at 1:42 pm
Ok, so Stephanie, the toddler’s mother had to consult her legal department to check if her use was fair use or not, before using the Prince song or
Universal had to check with their lawyers to check if Stephanie’s use was fair use, before filing the lawsuit.
Here is my guess: Universal did what they had to do, they checked to see if Stephanie’s use was fair use and the lawyer said it was not. Then the lawyer (or same lawyer) was contracted to file the lawsuit. That is how legal advise about whether to file a lawsuit or not works out…. the lawyer looking out for number one, always looking for more business.
Next time, Universal, consult first a lawyer from Nepal, that has no license to work in the USA.
July 22nd, 2008 at 4:09 pm
To the anonymous READERS WRITE who suggested I sound like “a control freak”, I have to disagree. You don’t seem as if you understand an artistic business and you don’t sound like anyone working in fine or applied art. Not making the art is not the artists responsibility to avoid legal trespass, that falls to all others to not abuse the Fair Use doctrine. I think that might be Prince’s artistic gripe. (I don’t know.)
I work in design. I have a staff. When a client hires us to create something for them, they pay but they don’t own it and never do unless I expressly sell it to them (which I never do). They license it for one time use only, roughly the same as any other artistic creation like music or movies. They can use it again if they wish, but only after we cut a new deal. Often, they do agree to pay significantly more and then they use it over and over and over. “Copyright”. That’s how we earn our living. It funds the next round of “creating”. It’s a business.
I have a recognizable style. My client roster hires me to get just that style and no one wants it clouded or altered by unauthorized changes, not me, and certainly not the client. I have a reliable production, too, and they purchase that reputation of seamless reliability. It the work is digitized, we “control” it (to use your word) with a layer of custom DRM so that it looks consistently the same to the client who is funding it and to the audiences who watch it. We set all aspects and allow no further changes to keep our artistic vision just as we imagined (and copyrighted), so the recognizable clarity of our style is not annexed or changed or made less recognizable by someone else. And we keep all third party crap off of it to avoid software glitches so our work delivers the same crisp, clean, recognizable product our client pays for and we take our pride in. That “control” you disdain is what allows us to deliver first time/everytime a quality product for our clients here and abroad. That’s why they hire me in the first place. I’ve worked a long, long time to build this kind of reputation. The whole business is based upon copyright.
You have the right to create and sell your creations, too, and if you copyright them we can’t step in and alter your work either. And we wouldn’t, because we have pride and we’d respect it. We’d just do our own work and compete. Seems fair to me.
July 22nd, 2008 at 5:14 pm
First, I believe the question of fair use in this case has basically been settled, and the usage appears to be fair. Second, whether you like it or not, there are many circumstances in which people can legally use your design without paying for it. Once again, it’s called fair use. Look it up some time. You might be surprised to find out you don’t have as much control as you think.
July 22nd, 2008 at 7:40 pm
You may be in a position to lecture me on Fair Use, but then again you may not. I’m no troll. I’ve cut licensing deals based upon copyright for decades…. hundreds all over this country, dozens in 6 European nations and our first ever deal in Sydney Australia, this past Spring. “Fair Use” is very very limited, and only influences deals in America and a small handful of other countries. The entire rest of the world views the creator as sovereign. And even in the states Fair Use needs to meet four strict criteria, one in particular is “Economic benefit.” Google is making a shitload of money on their advertising by using copyrighted material to draw the viewers, and sharing none of the revenue with the creators or copyright holder’s. This is patently unfair. Prince’s artistic objections may not pass the Fair Use doctrine, but the monetary aspects of this case are far from over. It might be you, actually, who could use a little reading up.
The only time Fair Use became an issue for us was when a casino who had licensed our work years ago kept using our stuff but stopped paying. They cried “Fair Use” when we caught them, and after one carefully worded and very respectful letter from our attorneys, they cut us a check for their “fair use” and another much larger one to pre-empt a legal action. That untrustworthy client changed things for us, it was the last time I ever let digitized work out of our studio without DRM. I don’t pay for DRM, it’s factored into our fees. The client bears the added cost and passes it along to the consumer.
I have very talented, hardworking staffers who need to be paid. They have families and kids to educate and mortgages to pay just as we all do. I have taxes and insurance’s, banks of computers, paper galore, legal and accounting and collection bills, ground and air transportation costs you wouldn’t fucking believe……and TAXES OMG….we need to be in New York because much of the world’s entertainment is headquartered here, but just one parking space in my apartment building here in Manhattan costs $759 a month, plus 18% NYC parking tax, almost 11 grand a year…. to park one car. You wouldn’t believe what it costs to run an effective, organized creative company. The point is our products get paid for every time, not taken, so we can pay our staff and cover our overhead and then move into the next month and pitch for new jobs and get them (hopefully) and return to the joy of creation, which is what brought us all here in the first place. We all started as kids with sketch pads from somewhere else. It’s just that now we service the world’s corporations, and we bust our ass and get paid well to do it. But we’re all still doing what we love.
“Fair use’ is a kind of compliment when sampled respectfully. It is wisely limited by law and then DRM protects the rest. Pay us and everything is cool….you feel the same about your paycheck, right? Take our stuff without paying and we’ll sue you if we have to. We don’t want to, we’d much rather be creating, but what other choice do we really have? Go out of business altogether? A sincere reply would be appreciated.
Prince has gotten to where he is today because he’s a remarkable talent and he’s worked harder than any five of us here added together, and I hope Google has to pay him. It’s not greedy unless you are some Communist, they are using his song to make gobs of money and its just fair. I can’t just shrug and let our work go out “Fair Use” for free, either, or I put a bunch of talented artists out of work and then what do they do? Copyright law gives us the tools we need to build an artistic business and it is finally moving into the digital age. And it may give more control than you think.
July 22nd, 2008 at 8:30 pm
“I work in design. I have a staff. When a client hires us to create something for them, they pay but they don’t own it and never do unless I expressly sell it to them (which I never do).”
And if you hire someone to paint your office in order to brighten it up, do you pay that person a monthly fee for the continued use and enjoyment of their painting job? Every time you and your staff create something, do you pay the company that made your computer for the income you gained from using their product?
I suspect the answer to both questions is “no” and I have to wonder why. Isn’t painting, even walls, an artistic creation? Choosing the right color, mixing the paints, making sure the trim looks right. Doesn’t such a work deserve the same protection and benefits as you claim for your creative works?
And what about the computers that you use? Can YOU design and build a computer from scratch, starting with just the raw materials? I’d consider that damn creative. So why don’t the computer companies deserve to get compensated for your continued use of their work?
Come on, stop ripping off all the companies whose work you profit from and start forking over some of the money you derive from using them!
July 22nd, 2008 at 8:35 pm
Claiming that Youtube has made any money off of Prince because of this video is just ridiculous. Even if it was the only video on there, and had been responsible for all of their traffic, your claim would not hold water. If I want to listen to a Prince song (not gunna’ happen) I don’t go look for a crappy 30 second piece you can barely hear with a lady talking and a baby laughing over the top of it. If you think people are watching the video because of the song, you have a poor grasp of reality. Substitute any other piece of fast paced music that the kid likes, copyrighted or not, well-liked or not, and nothing changes.
Just because you lock your creations away behind DRM, doesn’t make you legally immune to fair usage. Just because you can point to a case where fair usage was potentially improperly used, doesn’t invalidate the doctrine.
I don’t have a problem with your pursuit of those who use your copyrighted works in unauthorized ways, if that pursuit is done fairly and with a little common sense. However, make no mistake. Copyright is granted to you by the people. It is a privilege, given because the alternatives are worse. However, abuse it, as has been done in this Prince case, try to make it overly broad as has been done over the past several years, and that burden may just become too great to bare. The alternatives might start looking pretty good to society.
If I understand my history, when this privilege is revoked, it will likely not be a reasonable cutting back, but may in fact leave us creators wishing for the good-old days of the 1700’s. I suppose we’ll see.