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HBO Forcing Takedowns Of Privately Filmed Videos Of Obama Inauguration Concert

from the legally-questionable dept

Wed, Jan 21st 2009 12:44pm — Mike Masnick

Against Monopoly points out that the Inauguration Committee apparently sold the broadcast rights of the Inauguration Concert (held this past Sunday night) to HBO (for a six month period). Because of that, HBO has been going around demanding all videos of the event be pulled down from YouTube. This appears to include privately filmed clips as well -- which seems pretty questionable. Sure, HBO probably wants to do more with the video, but is a short clip filmed from a camera phone really going to diminish HBO's ability to profit off this historic event? It would seem that such clips would only increase the value to HBO, allowing the company to do more with the full professional video.

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Filed Under: broadcast rights, concert, inauguration
Companies: hbo

51 Comments

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Anonymous Coward, 21 Jan 2009 @ 12:45pm

I thought the Photog . .
owned the content . . . this is why everyone stops you from taking the pic (or film) in the first place. Once you do, YOU own it.
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Lucretious, 21 Jan 2009 @ 12:53pm

isn't the inauguration funded by taxpayers? If so, who or what gives the committee the right to sell the "rights" to something like that?
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bjwest, 21 Jan 2009 @ 12:57pm

Not Possible
I don't think it's possible to own the rights to a public event especially when said event was funded with taxpayers money.
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fred, 21 Jan 2009 @ 1:03pm

No Federal Copyright to be claimed
Of course Congress passes laws that it does not impose on itself. So a copyright attorney would have to look into this.

TITLE 17 > CHAPTER 1 > § 105
Prev | Next
§ 105. Subject matter of copyright: United States Government works
How Current is This?
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
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Skeptical Cynic (profile), 21 Jan 2009 @ 1:10pm

Even though I don't agree with it...
First this was for a "private" concert not something generally open to the public so just like all private concerts they was more that likely T's & C's against any recording of it.

Second if HBO BOUGHT the rights to it they more than likely paid the cost of it so do have rights to resell it.

That said I think what Mike is objecting to is that HBO just does not realize the benefit those short bad quality clips will do to increase the value of what they paid for.
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Scote, 21 Jan 2009 @ 1:11pm

"but is a short clip filmed from a camera phone really going to diminish HBO's ability to profit off this historic event?"

Sounds like a bad faith DMCA notice. AFIK, HBO had exclusive access to record and broadcast the event, but I don't believe it has a copyright interest in the event itself, only its recording of the event, and, I expect, HBO had to pay rights to record and transmit any music used in the performance. Extemporaneous speech, for instance, is not copyright, and unless speakers wrote down their speeches before hand, and assigned their copyright in writing to the inauguration committee, then HBO does not own the rights to those, either.
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Lucretious, 21 Jan 2009 @ 1:13pm

Re: Even though I don't agree with it...
Regardless of who it was "open" to, was it or was it not funded by taxpayer money? If it was privately funded then what is the inauguration Committee doing acting as a broker for copyright assignments?
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Killer_Tofu (profile), 21 Jan 2009 @ 1:16pm

Re: I thought the Photog . .
Agree with your thoughts. I think HBO is sending false takedowns.
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Anonymous Coward, 21 Jan 2009 @ 1:18pm

HBO only owns the rights to it's own recording. Now if someone were to take what they recorded off the HBO broadcast and put that online, then HBO might have a case for demanding takedown.
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:Lobo Santo, 21 Jan 2009 @ 1:19pm

Re: Re: Even though I don't agree with it...
Getting paid, duh!
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Anonymous Poster, 21 Jan 2009 @ 1:19pm

Re:
Seconding this line of thought. HBO's pulling some seriously heinous crap here, and they need to stop it.
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Anonymous Coward, 21 Jan 2009 @ 1:19pm

Re: Even though I don't agree with it...
How can a concert be private if it was staged at the Lincoln Memorial? This is the most sacred sort of public land.

I can see the organizer who is sort of a political party animal selling the rights to one network but not the right to control non-commercial uses of privately filmed material.
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TriZz, 21 Jan 2009 @ 1:20pm

Re:
We do. We give them the tax money...they held the concert with that money, which gives them the right to sell the rights.

I don't see what's so hard to get about this...just because your tax dollars paid for the road you drive on, doesn't mean that you can go out into the middle of the street and start digging it up.
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Michael B, 21 Jan 2009 @ 1:20pm

Concert was Public, but Funding was Private
The "We Are One" concert was, as far as I know, an open event, not something you had to buy tickets for (I could be wrong), but I DO know that it was not funded by taxpayer money. The Inaugural Committee raised something like $46 million to fund it, with the rest coming from HBO. That being said, I still think the takedown notices are in bad faith and an overreach.
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Skeptical Cynic (profile), 21 Jan 2009 @ 1:22pm

Re: Re: Even though I don't agree with it...
I do agree that if it was funding by the tax payers than it should be public property. What I was saying is that if this concert was paid for by HBO because the committee had them fund it then they do have right. Is also depends on which committee was in charge of this event. Just found this info so I am wrong it was not a private event at all... "2:30 p.m. - The Lincoln Memorial President Barack Obama with the help of an all-star line-up of talent will kick off the inaugural celebration in Washington, D.C., with a free and open event at the Lincoln Memorial, between Constitution Avenue NW and Independence Avenue SW on 23rd Street. http://www.pic2009.org/page/content/weekendschedule/
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Anonymous Coward, 21 Jan 2009 @ 1:22pm

Re: Re:
Perhaps enough false take down complaints should be grounds to put all the complaints from that source under heightened scrutiny and rescind the immediate take down of the material complained about by that source.
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Phil, 21 Jan 2009 @ 1:23pm

Why I cancelled HBO
HBO's attitude is unacceptable. I canceled HBO over a year ago.
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Skeptical Cynic (profile), 21 Jan 2009 @ 1:24pm

Re: Re: Even though I don't agree with it...
You are right. See my comment above where I corrected myself.
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Skeptical Cynic (profile), 21 Jan 2009 @ 1:25pm

Re: Re: Re:
Wish that was true.
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Guy One, 21 Jan 2009 @ 1:25pm

Surprise Surprise another way to make some money off obama. i cant wait to get my share, just need to figure out how to profit from this obama guy...
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Pedro Mack, 21 Jan 2009 @ 1:27pm

I thought the concert was open to the public and didn't require tickets (or, presumably, other acceptance of an agreement/contract). If that was the case, how could private videos of a public event on public property fall under any sort of copyright infringement? Wouldn't this be the same as taking video on the street or in a city park?
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Rizwan, 21 Jan 2009 @ 1:35pm

When was the last time hbo did anything good
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Lucretious, 21 Jan 2009 @ 1:36pm

Re: Re:
Maybe it's me but I re-read you analogy several times and it makes absolutely no sense.

The "we" and the "them" are two of the same. "We" employ "them". Its a federally funded entity (the committee), its NOT a private company who gets to then make private deals with the public property they oversaw.
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Anonymous Coward, 21 Jan 2009 @ 1:38pm

I was there...and this is what I saw...
It was on public ground which was paid for and cared for by US tax payers. There were no sign restrictions for filming as there were some people with some serious equipment that came through security. Security was the park police and not a private security group. HBO did not pay for their own security nor anything else as far as it seemed.

Also this is a dangerous principle. If there was no notice of restriction and it is in a public space, why can't anyone film this and publish their content? Copyright only protects the expression of an idea and a private filming of this event would be a separate expression from a different vantage point. Also if I go film the Lincoln Memorial today with nothing going on, would I get the same pressure if I titled it the same with empty footage of the Memorial. HBO is being completely abusive in this. Maybe the people with their own footage should counter HBO in the exact same way. Contact a court for a DCMA take down and stoppage of ever broadcasting this show again- since the HBO show is way too close to their personal copyrighted footage. Either everyone needs the right to show this or no one should have the right.

Also why was this not on public television? Not everyone is a slave to the cable companies. I did not like the whole HBO thing to begin with...I knew something like this would happen...
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Anonymous Coward, 21 Jan 2009 @ 1:39pm

Re: I was there...and this is what I saw...
Also there was no charge for the show. It was completely free to the general public...
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Lucretious, 21 Jan 2009 @ 1:40pm

Re:
Personally I think the bulk of HBO's own programming is quite good. Its just, like everything else in business, the attorneys are fucking up the party.
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NullOp, 21 Jan 2009 @ 1:51pm

Monopoly....again
Think again HBO! When you buy the 'rights' to something you don't buy the rights of people involved parties. This is obviously another attempt by a corporation to finagle exclusive rights on something to the point of absolute exclusion of others rights. I suspect it is because the TV/Film industry is so lacking in creativity and content these days they are trying stake their claim on anything and everything!

Lets call this Whine-opoly!
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ehrichweiss, 21 Jan 2009 @ 2:03pm

Re: Re: I thought the Photog . .
I third this and I'm surprised that Mike missed this. An event is not copyrightable.

If it were so then the police would only have to declare that they have copyright over every "situation" and we wouldn't be able to film officers making arrests, pushing kids off their bicycles, etc.

HBO, you're gonna lose this BAD to someone because there's no way any copyright attorney doesn't know this aspect of copyright law and filing these in bad faith will surely land your asses in hot water. Think about it, I 100% know it's not a part of copyright law so if your attorneys are even twice as knowledgeable about copyright law as I am, they know they shouldn't have filed these at this point.

What HBO was granted was exclusive camera access so they could film the event instead of all the other networks doing so. This does not grant one copyright over the whole event. What's next? People's private photos from the event?

It'll be good to watch when someone fires back...
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Tom, 21 Jan 2009 @ 2:07pm

This is not digging up the road (real property) that taxes paid for, it is not being allowed to take a picture of it (a creative work) and then display that picture. Copyrighted material is not real property, the physical copy is, but not the material (hence COPYrighting).
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Joe, 21 Jan 2009 @ 2:10pm

technically...
Every government function is funded by tax payers...doesn't stop anyone else from profitting where they shouldn't.

Also when have you ever been paid back for your tax contributions?
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Anon2, 21 Jan 2009 @ 2:29pm

Ahem . . . here's how it shakes out (I'm 100% certain):

First, it was a public event. Now, simply because an event is on public land or in a public park does not make it a public event, but in this case the event was fully open to the public.

Second, there were no T's and C's notices posted, nothing at all warning people not to record or photograph the event.

Third, the Inauguration Committee is not a government entity, and it is not taxpayer funded. It is a private committee, funded by private sponsors. It organized the event, it found sponsors for the event, it paid for a significant portion of the costs of securing the event, directing traffic, setting up porta-potties, and all those things, and it most definitely had the right to license exclusive rights to HBO to record and broadcast the event.

Fourth, however, HBO did not obtain a license to be the only cameras in that park. It merely obtained a license to have the exclusive right to set up its cameras where it chose, to have access to areas for its cameras and microphones that the public did not have access to, to park its production trucks and set up its production equipment where it wanted, and to then edit all the footage and broadcast it on its network for a six month period.

Fifth, a licensee always has the right to take action to enforce intellectual property rights that it has licensed.

But sixth -- and most important here -- HBO does not have any right whatsoever to be issuing takedown notices with respect to recordings other people made at that event and posted to Youtube or anywhere else. It did not license those rights, and the Inaugural Committee did not purport to transfer or license those rights to HBO. It was a freakin' open, public event with loads of people all over the place holding up cameras and camcorders and camera phones. Not a single event security person, nor any HBO representative, nor a single representative or agent of the Committee ever went over to a single one of those people and asked them to put their device away, because there were no restrictions.

That's the bottom line here. Had the Committee instead rented the park space from whichever government entity controls that, and enclosed it, sold tickets, posted signs, and warned people not to record it -- just as they do at concerts all over the U.S. every single day -- then HBO might have some sort of argument (depending on the terms of the license agreement). But under the circumstances, it is really straying way beyond what any reasonable person in the business of content creation and broadcast could possibly believe in good faith to be enforcement of its rights.

I just hope that one of the people whose recordings was forced down by this is some litigious sob, maybe even a lawyer herself, and refuses to go down quietly. This entire inauguration was an incredibly historic event, and Obama and his people made clear from day one that all the principal official events leading up to and surrounding it were to be free and open to all. What HBO is doing here is truly appalling.
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Anonymous Coward, 21 Jan 2009 @ 3:46pm

Stop feeding them
The only way to break the MAFIAA is by not paying them anymore. Cancel your TV service, stop buying movies (or at least limit to a very small number). It is YOUR MONEY companies like HBO use to limit YOUR RIGHTS.

If you cannot imagine a life without TV, then try to enjoy a walk outside this evening, prepare a good dinner, read a book, play with your kids and living partner, and keep the TV off. Let us know how you like your new life!
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Anonymous Coward, 21 Jan 2009 @ 4:02pm

Anyone interested in fighting this directly/ testing the principle?
I have a little video content of this event if anyone has the time and/or desire to go after HBO. I personally don't have the time or legal expertise. Post something if interested...
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The part of the deal you didn't see, 21 Jan 2009 @ 4:31pm

Be good little consumers, and subscribe to HBO...
...Obama/Biden may start selling things during the weekly infomercial slot on HBO to cover the stimulus package!

From 1 to 2, tune in for Obama Coin Hour, where you can buy 24 carat gold Obama Coins personally autographed by Barack himself! For tickets to be in the studio audience, call 202-737-0002.

From 2 to 3, tune in for Michelle's Fashion Hour, where special guest designer, Jason Wu will show off his newest spring looks.

From 3 to 4, tune in for the hour romp of "Joe Biden's Verbose Internet and incredibly Sarcastic and Funny Prank Show" (Note: All new, exciting format! Similar to "The Graham Norton" Show) For tickets to be in the studio audience, call 202-737-0002.

And from 5 to 6, join Sasha and Malia as they will show you the newest Obama Action Figure, "Muttley". Order the 35-piece family set online and get "Muttley", the Dog at a discounted price!

It happens all this Saturday, so tune into HBO!
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Avatar28, 21 Jan 2009 @ 5:11pm

All your copyrights are belong to us.
Okay, sorry for dragging up an old meme but it really seemed to fit the situation. HBO is basically saying that THEY own the copyright over all the videos filmed by everyone else there. After all, that is what the DMCA requires they affirm in their notice.
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Anonymous Coward, 21 Jan 2009 @ 5:13pm

Did HBO send C&D letters covering the shoe toss event ?
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Anonymous Coward, 21 Jan 2009 @ 5:26pm

This story, though predictable, makes me sad.
It makes me sad that I don't own one of the videos in question (and be able to participate in the blood-bath of lawsuits) and it makes me sad the I didn't become a lawyer so I could profit from the blood-bath of lawsuits that need to be initiated.

If we are going to suffer through this miserable economy my only prayer is that Pepsi, Target, Staples, Invesco, and whoever else has contributed to the commercialism of sports and public venues go out of business and thereby render those commercial brandings useless.

HBO, get a clue.
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Anon2, 21 Jan 2009 @ 6:16pm

more sadly
Even more sad is that there likely won't be any blood-bath of lawsuits. Even though section 512(f) allows for damages and attorney fees in cases of "knowing material misrepresentation" by an alleged copyright holder who issues a takedown notice to an online service provider, it's actual damages, not the much larger statutory damages available for copyright infringement. And despite the obvious salutary benefits to society of prosecuting cases like these, some courts can be quite stingy in terms of compensating lawyers for all the time they put into such matters (and appellate review of such fee awards is on the very loose abuse-of-discretion standard).

Moreover, there's a fairly easy counter-notice and putback procedure in the DMCA, and I would guess most courts would want to see a plaintiff having attempted that before suing. I would guess if HBO started to get hit with counter-notices forwarded by Youtube, it would back down.

And I am having a hard time imagining what the actual damages are to an ordinary citizen who was at the event, recorded it, and then elatedly put it up on Youtube to share with the world. It sucks, but the law is really crass about these things, and there really aren't any actual money damages.

That doesn't mean such a case would not have merit -- and assuming HBO receives a bunch of counter-notices does not back down, it would come closer to a real case on behalf of a larger group of plaintiffs. But even so, the next step is for HBO to sue people for copyright infringement. If within 10-14 days after service of the counter-notices, HBO does not sue anyone, Youtube is actually required to put the material back up.

So again, I think the odds are very much stacked against people who had their content wrongfully taken down in this instance. What the DMCA needs to balance things out is a statutory damages remedy similar to that for willful infringement of copyright -- between $750 and $150,000 per infringement (or in this case, per takedown notice that was knowingly and materially false).
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Anon2, 21 Jan 2009 @ 6:29pm

even worse
Even more stunning to me is that of all the cable content providers, HBO is the one who truly has no excuse to know better, because it's been doing this for so long. For those who are too young, or don't remember, HBO got its start not for producing high quality original content, or even being the first to broadcast movies after their first-run in theaters, but for live events like boxing and concerts, which it broadcast as "closed-circuit" and then later "pay-per-view" events. So it knows the ropes in terms of what its rights are, and how to protect those rights when it is actually recording/broadcasting the live event.

In fact, when HBO first started in the business, it wasn't even scrambling its satellite signals. It wasn't until it learned that bars, private clubs, union halls, etc. around the country were putting in TVRO satellite earth stations so their patrons or members could come and watch (and homes around the US were doing it as well instead of subscribing to what were then very primitive cable systems), that it began to scramble its signals. And those early efforts were laughably easy to break, because all they did was mess around with the interlacing. It took them a few more years to begin to truly encrypt their signals in a somewhat more secure manner.

It wasn't until after all of this (HBO, ESPN and a couple others were the first to scramble), that they hired lobbyists and got Congress to make the decoding of those signals a felony offense, that these pay networks and the cable systems really began to take off as long-term profitable businesses.

And as everyone knows, it took the cable companies a lot longer to figure out that the physical "filters" they put on peoples' lines if they didn't subscribe to certain services required nothing more than a drill, a piece of wire and a soldering iron to bypass in a way that the companies' techs wouldn't detect with visual walk through audits of neighborhoods. So how did the cable systems protect their interests? Precisely how the RIAA is doing it now, albeit on a much smaller scale. By going after individuals in court and publicizing those cases. The only difference was that those laws were criminal laws, and local authorities were more than happy to prosecute people since their municipalities were getting so much money for granting the monopolies.
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Dan, 21 Jan 2009 @ 9:06pm

copyright? maybe
But it is within your power to deny HBO the profit, just cancel them. Small ideas from small minds.
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Kevin C., 21 Jan 2009 @ 9:15pm

Re: Re:
No, it doesn't. But it DOES mean that I can take a picture of it and post it on youtube. Hyperbole never really helps with an arguement, unless you're arguing with 3rd graders (trust me, I know. Creepy little weasels...small hands...)
HBO's response is asinine, true, but are they within their rights? It was refered to as HBO's 'We Are One: The Obama Inaugural Celebration at the Lincoln Memorial'. Can you post a video of your favorite band in concert on youtube? This was a concert NOT the inauguration itself.
In conclusion: HBO-d*cks. Legal-yep.
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Anonymous Coward, 21 Jan 2009 @ 9:37pm

Suck that. HBO Boycott time...
If I were there and had my own video of the PUBLIC event, I would SUE HBO for even asking for me to take the video down. Its America's President swearing his oath to us. Not Swearing oath so HBO can make money. Oh wait I think ShowTime is going to buy the rights to the next one. So News sites, and stations cant even broad cast a single second of the event. That way ShowTime corners the market! Its not about Money people, Its about the freedom to be an American, without UNCLE SAM or HBO telling us we cant. This is exactly why we voted Obama into office, to put an end to the big brother BULLYING... GROW UP HBO, and realize You are not the keepers of the internet WE ARE, and we are your employers. YES we bring you your paychecks. And if you cross the lines we draw, we have the power to say here today gone tomarrow.

With a new day of Independence,
Returns The Power to the People!
Thomas'73
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cm, 22 Jan 2009 @ 12:16am

Even worse
Evidently, the rights to the state of the union address were sold to Chuck E Cheese. As part of the deal, the pres will have to wear a red clown nose, and say "brought to you by Chuck E Cheese" after every paragraph.
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Killer_Tofu (profile), 22 Jan 2009 @ 6:46am

Re: Re: Re:
@Kevin C
No, not legal. (IANAL, but I am really sure on this, as are ... just about all of the other posters)
You pay to get into a concert. And it is listed, in an agreement somewhere, be it on your ticket, or online before you buy it, that you cannot record.
However, if it is a public performance where you didn't pay for it and they are out in the open, there was no agreement to not record, so yes, you would have the right to record it and post it on youtube.
In this case it was completely open to the public, and there were no notices. Just look at the one poster's comments, he was there. (this of course gives them the benefit of a doubt that they are not lying)
So there was nothing what so ever restricting you from recording it yourself. So please explain to me how it is legal for HBO to own the copyright on your recording?
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Thad Ryker, 22 Jan 2009 @ 6:47am

despicable
This kind of parasitical behavior is unacceptable. This was a historic moment for all American people. While I'm sure there are some hazy legal aspects to all this, it is regardless quite stupid of HBO. I will make sure to cancel my HBO this evening when I get home.
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Essex, 22 Jan 2009 @ 7:29am

Stop Whining
HBO is hosting the full inaugural celebration on hbo.com for free. Just like other major networks, when they own the right to a broadcast, they take it down from youtube. That's why you'll never see anything from The Office or certain news broadcasts etc. Your right to be there and film is obviously open, but the right to broadcast is given up since HBO bought exclusive rights.

People saying you are gonna sue? For what? By being part of the celebration, you give up all rights to be filmed, use your likeness, etc. when you step in to the Inaugural grounds.

If it's that much of a problem, why don't you just go to another video hosting site???????? Stop crying about Youtube & HBO and realize there are other hosting sites on the net.

Vimeo is my video hosting site of choice.
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Anonymous Coward, 22 Jan 2009 @ 7:42am

First of all, the event was a public event. Come on it was the presidential inauguration. HBO cannot claim the rights to a public event, especially one of this magnitude. To be honest Obama was elected by the people and many of them contributed to his campaign which got him where he is. So in essence the people own the rights to the inauguration footage not HBO. This is bigger than what people think. HBO and copyright ownership of a public event should be an example of what's to come in the future of copyright wars between the public and corporate entities.
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Anon2, 22 Jan 2009 @ 8:21am

Kevin C., you are about as wrong as wrong can be. See my post. Having been involved in hundreds and hundreds of events -- representing bands, promoters, venue owners, ticketing companies, video production companies, you name it -- I can categorically state that in the absence of some kind of publicly disclosed terms and conditions forbidding the recording of the event and/or public dissemination of such recordings (let alone having taking any precautions to then enforce those terms at the event), HBO has no legal basis to assert an exclusive public performance right to all recordings made of the event. That right was waived by the host/sponsor of the event when it failed to give any sort of notice or take any precautions to protect the right and it doesn't even matter if its licensing agreement with HBO says otherwise. If it does, that's a matter between HBO and the Inaugural Committee.

But, to those who keep insisting that because this was a public event, was on public lands, was historic, was in part funded by tax dollars (which is questionable, at least insofar as how material the tax dollars were compared to the private sponsors), or anything else related to that: your tax dollars pay for loads of things, and that does not give you any particular rights in them. Go ahead, put your theories to the test. Walk up to the White House, the Hart Senate Building, any military base of your choosing, or any of the zillions of other government properties or facilities.

Or even try to walk into a private wedding ceremony somewhere like the cafe in the middle of Central Park, or get into a gated event at Central Park, or organize an unpermitted march down the middle of Fifth Avenue on a Tuesday afternoon.

Just because it's paid for with tax dollars does not by any stretch give every taxpayer full rights to access, use, or in any other way exercise rights over something. Never was that way, never will be.
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Clueby4, 22 Jan 2009 @ 2:32pm

DC was in a state of emergency
DC was in a state of emergency during the inauguration. So shouldn't that bring all "events" in DC under federal umbrella voiding any copyright claims.

Bad enough they scam the "declaration" of an emergency, then they grant the rights to events that were used as a justification for the "emergency" is just malicious.
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Misty Rone, 28 Jan 2009 @ 3:46pm

Pulling homemade footage of the inauguration
As many have, I am just stating my opinion. There is the common knowledge that a person may or may not disagree and that is o.k. I ask that my opinion like others be respected. I think that if you were fortunate enough to be at the inauguration and got your own footage more power to you! It was a historic occasion and we as American citizens reserve the right to remember it and honor it in the manner that some did.
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