Facebook Using DMCA Notices To Takedown Private Videos?

from the say-what-now? dept

Thu, Oct 30th 2008 10:03am — Mike Masnick

You may remember last month that we had a story about Google taking down a video on Google Video for copyright infringement, even though the video itself (a brief Christmas home movie) was set to private, and only 3 or 4 people had seen it. We were curious as to why Google would be scanning videos set to private and taking them down. At least in that case, Google admitted that it was an automated scanner (though never explained why it was reviewing private videos).

However, some friends of mine are now facing a similar, but more worrisome, situation with Facebook. A friend got married back in July, and some other friends who were in attendance filmed various parts of the wedding ceremony and reception. As is pretty common these days, they later took the best clips from those videos, set them to music and posted them to Facebook -- but set the videos to only be shared directly with friends. My friend Hersh used two songs dubbed over the video, one by a relatively unknown artist, Xavier Naidoo, and one by Kanye West. My friend Michael had an entirely different video, and used two different songs. One by the Deftones, and one by Jason Mraz.

Even though both videos were posted in July, and both were set to be only viewable to friends, rather than made public, both Hersh and Michael received DMCA takedown notices from Facebook with the videos taken down. The takedowns (which both sent me) don't specify that Facebook received a takedown, though they do point them to a "counter-notification" page, which is what the DMCA would offer. So, from what's been presented, it's unclear if Facebook actually received a DMCA or just decided on its own to take down two private videos of the same event on the same day.

While, technically, (and this point is arguable) these videos may be infringing, there's a good case to be made that they were fair use. They most certainly were not commercial in nature, and most clearly did not diminish the commercial potential of the works in question. In fact, Hersh named 3 of our friends who specifically had asked him who Xavier Naidoo was, so they could go find more of his music. Now Hersh can no longer promote Naidoo's music. That seems to go against everything that copyright is supposed to be about.

Neither is going to file a counternotice, because of the gray area concerning whether or not this is fair use (something Hersh understands quite well as a law student), and Facebook's form makes you swear under penalty of perjury that the content is legal. The whole incident raises a bunch of questions about how Facebook goes about taking down private videos, and why such videos are considered copyright infringement in the first place. In the meantime, if you have videos with backing music in them, apparently you're not welcome at Facebook.

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Filed Under: automated takedown, dmca, good faith beliefs, privacy, takedown, videos
Companies: facebook

40 Comments

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Hersh, 30 Oct 2008 @ 10:43am

Facebook reinstated the video
Facebook reinstated the video after I wrote them an email asking for the takedown reason. I believe they reinstated the video because they saw it was harmless, after manual inspection. There must have been some sort of automated tool which flagged the video to begin with -- a human corrected the mistake.

I can live with that behavior if they change the wording on their counter-notice form to make it less terrifying. Saying that you shouldn't file a counter-notice unless you know for SURE that something is fair use, on threat of perjury, is pretty lame. I'm sure they don't expect all their customers to be copyright experts.

Courts really need a nice juicy case about user generated content so we can decide these fair-use issues once and for all. All this ambiguity blows.
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Hersh, 30 Oct 2008 @ 10:47am

one correction
Also, once the video was reinstated, I went over the settings on it; it wasn't set to "friends only" -- so it was a "public video" in that sense.

Not that that means anything. Facebook doesn't have a video search capability far as I know. Also, my video did not have any copyrighted tags. So the only people that viewed it were still my friends, and people my friends sent it to -- i.e other people from the wedding, and family.
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Anon Cow, 30 Oct 2008 @ 10:55am

"Facebook: Tomorrow's Friendster, Today"
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No Six Pack, 30 Oct 2008 @ 11:13am

Music Bot
Possibly their bot scans and removes anything with music in it. An interesting test would be to create your own music, post it and wait. It wouldn't even have to be good, just a minute or two of musical tones with a back beat.
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Anonymous Coward, 30 Oct 2008 @ 11:14am

Waaaaaaah, I'm a cheap bastard entitled to something for nothing, waaaaah.

When will you free-loading losers understand that you can't whine and bitch and complain about what somebody else does with the alleged "content" you post on *their* Web sites?

Buy a domain and pay for your own bandwidth or STFU.
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COD (profile), 30 Oct 2008 @ 11:17am

Well at least Facebook is responsive. I got an email reply just this week (8 weeks after the fact) from Google that said they would review the video from the original story, but can't because I already deleted it.

I forwarded to email to you Mike on Monday or Tuesday.
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alphager, 30 Oct 2008 @ 11:19am

Xavier Naidoo unknown?!
He is a mayor star in europe.
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WarOtter (profile), 30 Oct 2008 @ 11:24am

Re:
The only person coming off as a whiney little bitch is yourself. So yes... you fail.

What if hotmail or gmail decided to scan attachments in emails for copyrighted works? What if your camcorder stopped recording the instant copyrighted music was played in the background?

BTW why use quotes around "content". Are you trying to argue what constitutes content? Or are you just using random punctuation to intentionally sound more like a douchenozzle (It's working!)?
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Dr. Chris Deason, 30 Oct 2008 @ 11:25am

Copyright
Clearly this was fair use. I bet the band would have loved the exposure.
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Adam Fisk, 30 Oct 2008 @ 11:35am

own your content
@Anonymous Coward People are posting to Facebook because that's where everyone else can easily see the videos. With a video on a random server, you'd have to manually e-mail everyone for them to see it. Wedding videos are the perfect example of when the social graph adds value to content.

The point you bring up is a good one, though. If you want to control your content, don't give control of it to someone else (duhh). With LittleShoot (aka my software), for example, your videos are hosted on your own computer and distributed via p2p. You can tag your file however you want. When someone goes to download it, they get it from all available peers automatically (always swarms), and you can include public HTTP servers in the swarm if you want to speed things up. The sort of automated scanning Facebook is doing is impossible since we don't have the content, but if LittleShoot gets a takedown notice, the videos are no longer available in search results. There should be room for the best of both worlds if/when Facebook opens up Facebook Connect to more than the initial launch partners, depending on how much they make available via the API.
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Adam Fisk, 30 Oct 2008 @ 11:36am

Re: Re:
You used the word "fail," so you fail. Oh wait, so do I...
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hegemon13, 30 Oct 2008 @ 11:52am

How is this infringement?
Wouldn't this be a private use? As long as the person posting the video legally owned the songs, I don't see any infringement. It is the equivalent of letting a friend listen to one of your CDs in the privacy of your house. Just because this is a digital "room," so to speak, does not change the fact that it is private, and therefore not subject to even a performance license.
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Dav, 30 Oct 2008 @ 11:58am

Re:
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Dave in Chicago, 30 Oct 2008 @ 12:00pm

Wow someone is bitter
I'm curious why you are so bothered by someone wanting a free site to work as it should? Maybe if you weren't such a bitter bitch you'd be having a better life.
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Anon E. Mousekuhteer, 30 Oct 2008 @ 12:10pm

Re:
That was uncalled for and totally unworthy of posting. Grow up.

As an artist I wouldn't want my art posted in a video w/o my knowledge. Let me know what you want to use it for and as long as it isn't being used commercially or in a way that is derrogatory to my work or others I'll gladly let you use it.
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PRMan, 30 Oct 2008 @ 12:58pm

That's the point of Fair Use...
They can use your video for analysis, teaching, commentary, parody, etc. and they don't have to ask you.

If they were criticizing it or making fun of it, you would probably say no, which would then lead to no criticism of ideas through discussion or parody, which would be very bad for society.
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Anonymous Coward, 30 Oct 2008 @ 1:10pm

Ok - I'm confused
Just who is the bitch ?
I can not keep track
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Pope Ratzo, 30 Oct 2008 @ 2:00pm

I've had completely original videos, set to my own original music taken down the same way recently. Something very weird is going on.

The only person who can possibly claim copyright to these videos is me, and I definitely did not make a DMCA notice.

These were abstract videos with absolutely nothing that could be considered offensive, unless of course you find electronic dark ambient music offensive.

We're going to find that there's pressure being exerted to have any video with ANY music taken down. Even when the music is original.
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Anonymous Coward, 30 Oct 2008 @ 3:30pm

Re: Facebook reinstated the video
The government or someone should create a system, database, or website where we can publicly post fair use situations like this and allow copyright holders to let us know whether they think the situation is fair use or not. If they don't think it's fair use, they could object or say they don't mind and give us permission. If we disagree with their objection, we could tell them to bring us to court. If we agree or don't want trouble, we would cease and desist. The government could even tell some copyright judges to comment on the posts and situations.

ydfeed
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Anonymous Coward, 30 Oct 2008 @ 3:38pm

Re:
Facebook put the videos back up, so it looks like people can send feedback about what hosts do with their content.
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Nobody, 30 Oct 2008 @ 6:11pm

Re: Ok - I'm confused
"Just who is the bitch ?
I can not keep track"
...which makes you my bitch.
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Rose M. Welch, 30 Oct 2008 @ 10:36pm

Re:
You are such a cute little troll!
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chrisco, 31 Oct 2008 @ 1:07am

YouTube just did same thing to me...
Photo video of at our Christmas party in Sweden.
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Twinrova, 31 Oct 2008 @ 4:37am

I smell a copycat!
Mike,
You and I disagree on some points, and I'm okay with that. But I would like to point out something obvious with this blog in hopes that maybe you'll start understanding my "negative" stance against Corporate America.

Have you ignored the number of DMCA blogs you've posted in the last year?

As I've stated: When one business sees another getting away with something, they're going to copy it and the result always ends up hurting consumers.

You and I both know the DMCA has massive issues, but now you'll have a better understanding of why I challenge some of your posts regarding big business.

You now have a library of proof Corporate America is in need of major changes in the way it does "business".

See you (objecting, I'm sure) at the next blog!
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Interested, 31 Oct 2008 @ 9:17am

Re: one correction
Hersh, can you forward me a copy of the takedown notice? I'm doing a paper about the DMCA and it sounds bizarre that Facebook would tell you to file a counter-notice if they, as opposed to the content owner, removed the videos. Send it to Bluesteed-at-gmail-dot-com.
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Greg, 1 Nov 2008 @ 7:27pm

It seems pretty obvious that if you make a video for any kind of distribution on the internet, you should stick to music you write and perform yourself, or none at all.
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Vader, 2 Nov 2008 @ 9:56pm

Yeah you might have a private profile, but did anyone stop to think that Facebook staff would have access? Of course they would they run it.
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Zach, 19 Nov 2008 @ 1:22pm

Question
Does anyone have any idea if it would make a difference to Facebook if the artist's name was displayed on the video? Like "Music by Dave Matthews"? All my videos are friends-only and I got two notices (about two months after I posted the videos).
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Lao Watson-Smith, 22 Jan 2009 @ 12:44am

I think it is just FB taking precautionary measures ...
This happened to me, and I found that filling out their "Counter Notification" automatically re-instated the video in question.

I belive, therefore, that it is a totally automated process in which FB identifies video or other media which contains any kind of 3rd party media embedded in it, and flags it and disables it.

If the user then contests that they are within their rights to use it then FB automatically puts it back, and that contention from the user will protect them in the future.

Although a bit annoying, I can see their point on it and it is probably quite a clever way to protect themselves against future action by the Greedy-Thieving-Bastard protectors of antiquated copy-right law!
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Paul, 4 Mar 2009 @ 4:28am

Email Wording
Hi Hersh, how did you word your email to them. I am in exactly the same position now with a wedding slideshow of my photos that i added music to, being removed!
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Ric, 20 Apr 2009 @ 9:43pm

Contacting Facebook
Hey Hersh, I too just found myself in the same predicament with a small movie I made. I captured video of my friends little puppy and him playing on the beach and set the best shots to a song and Facebook took down the video about a week later.

I'd like to contest their decision to take it down. I was wondering how you contacted Facebook, I can't seem to find an email address on their site.
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Ric, 20 Apr 2009 @ 9:43pm

Contacting Facebook
Hey Hersh, I too just found myself in the same predicament with a small movie I made. I captured video of my friends little puppy and him playing on the beach and set the best shots to a song and Facebook took down the video about a week later.

I'd like to contest their decision to take it down. I was wondering how you contacted Facebook, I can't seem to find an email address on their site.
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Susan Richardson, 13 Jan 2010 @ 10:11am

video removed and NEVER posted!
Apparently Facebook is still up to this and it's even worse now. I posted a small video of photos of my dog, set to a newly released song by Susan Boyle which I took of a CD that I PURCHASED. Facebook refused to post the video at all, sent me the notification and even after I "accepted" the notification, the video was still never added. It was set to friends only.
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hacer, 19 Mar 2010 @ 6:38am

fuck
i need vedio of fuck
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dood, 1 Apr 2010 @ 10:33am

Re: Re:
"...3 forms of enemy speech, speaking as an (artist) etcetera..."

You can't control thousands of people who may want to sample audio work for non-profit use once it's released into the public realm.

And, please, from now on, anytime you're about to refer to yourself as an artist because it's all emancipating, empowering, & self congratulatory, try saying the word accountant instead. This goes for "as a (your religion here)" too.
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Della, 20 Jun 2012 @ 11:01am

Re: Facebook reinstated the video
I have recently come across the same issue except with a time lapsed digital painting i created. How would I go about asking Facebook for a takedown reason?

best,
della
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Anonymous Loser, 1 Sep 2012 @ 12:54am

Re: Agee, facebook is not entirely ours
For our "shity" work to be able to go "woldwide" as FREE as can be? Naaahh...
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Bob, 23 Sep 2012 @ 11:21am

Wow "perjury" really???
"and Facebook's form makes you swear under penalty of perjury that the content is legal."

So how is it that Facebook ranks to the level of perjury if you lie to them???? Give me a break.
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Linda L Martin, 12 Feb 2013 @ 3:54pm

Re: Facebook reinstated the video
Hi, I have been posting video's that I do dances to at church, I use flags and I dance with certain music. These video's are posted for the one's that didn't make it to church to see, and so maybe someone will be blessed by them.
Facebook sent me an email saying they took a video off that I had posted it was not me in it, I had posted it for Judah another dance group at our church. They said I had violated copy right's. They needed me to fill out the info and sign a digital signature. I have not felt comfortable doing that, because someone could use my signature for other things. So I'm in the dark as to how I can be reinstated back so I can post my video's. Evidently someone turned me in.
We need to know what is reasonable. When I post, and when I go to other chuches, they always want to know about the music, they love it, and probably some have purchased some of the music I do. So in my humble opinion I am promoting the songs. I frankly was shocked, that this happened. I purchase all of my music from Itunes. I had one I downloaded off youtube, that I did not pay for. I have had a strange feeling for doing that.It was a little while after that, that I was blocked. So maybe that's what caused it. I would appreicate any light or info you can share with me on this.
Thank you, God Bless you!
Linda
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laurel derksen, 21 Apr 2015 @ 9:55pm

take down home videos
I just tried to put a video that I had taken in India on Facebook--- just movies of elephant rides, street scenes, famous buildings of Delhi.
Then I put the slideshow to Indian music from Best Exotic Marigold Hotel,
I also was just showing to friends and it was a trip I took with a college group.
It finished and then i got a notice that it was an "infringement of copyright" and they removed it.
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