The Chilling Effects Of Warner Music's YouTube Takedowns
from the it's-about-chilling-effects,-not-lawsuits dept
The EFF is reporting on the chilling effects created by Warner Music's regular takedowns of videos of things like kids singing "Winter Wonderland" on YouTube. Due to liability issues, it's a very scary thing to contest a DMCA takedown -- as it could leave you open to paying statutory damages (up to $150,000 per song) and the recording industry's attorney's fees. Some entertainment industry lawyers think this is no big deal at all because Warner Music hasn't actually filed any lawsuits against anyone concerning these videos. But that misses the point (by an astoundingly huge margin). The chilling effects by such takedowns are huge, and are clearly inhibiting creativity -- the very thing that copyright was supposed to encourage. Saying that it's no problem because Warner hasn't filed any actual lawsuits (just takedowns), is the sort of thing that only an entertainment industry's logic could allow.
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Filed Under: chilling effects, lawsuits, takedowns, videos
Companies: google, warner music group, youtube
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false statement in this post
In fact, I have written precisely the *opposite*:
http://copyrightsandcampaigns.blogspot.com/2009/02/ny-times-digital-pirates-winning-b attle.html
"the problem of bad takedowns is real (I've been on the receiving end myself), and I'm all in favor of exploring ways to avoid them"
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Don't look at the kids singing, look at the website with advertising around it making income (but no hint of a profit). That is the true problem. By complaining about DMCA takedowns, you are suggesting that Youtube has the right to make money on copyright holders material without paying standard royalties or obtaining permission.
You don't need anything beyond a takedown notice - the objective isn't to sue the pants off of someone, it is to stop the violation. DMCA is a very powerful tool that does just that. Warner is well within their rights, and Youtube is doing what they are legally obliged to do.
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Epic fail
"Take your re-mix video down or I'll pull the trigger. But don't worry I've never had to pull the trigger - yet..."
Intimidation in action.
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Re: (Weird Harold)
Company A sees this work that I've posted to Youtube, and disagrees with my fair use claim and sends Youtube a DMCA takedown notice. Youtube has no incentive to defend my fair use claim. They're liable if they leave the video up, and they're not if they take it down. So for all the cases where Company A thinks there's a violation, Youtube will take down the video. This leaves the definition of fair use up to the copyright holder (who is a party that is very much biased).
If there were a system for challenging DMCA claims (an appeal process of some sort, or damages that could be claimed for false DMCA take-down notices) the copyright holders would be forced to be more careful in their evaluations of which works actually violated their copyright.
The problem with the current system, is there's no way to challenge a DMCA claim without enormous risk to the challenger (being sued to the tune of hundreds of thousands of dollars), and zero risk for registering false DMCA takedown notices. This system makes it far too easy for copyright holders to abuse the DMCA process...
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Get back in line
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Re: Weird Harold
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Re: false statement in this post
Also, do you honestly think just because the media companies haven't followed through on any of their threats that people feel any less intimidated or that the chilling effects are significantly less? In other words, you wouldn't mind having the sword of Damocles hanging over your head as the king told you it had never fallen before?
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Re: Re: (Weird Harold)
However, Warner isn't even close to making false claims, as they own the rights to the music and have the right to refuse it's unlicensed use. If any of these DMCA notices were NOT valid, I am sure one of the EFF lawyers would be all over it. That all they are doing is blowing smoke is a clear indication that they know that all of the instances are in fact violations. Minor ones perhaps, but well within the boundries of DMCA.
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Re: Re: Weird Harold
Just because things are done electronically instead of in person doesn't suddenly make them all free and clear. The internet is still attached to the world AFK.
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Re: Re: Re: (Weird Harold)
There have been many false DMCA claims, have there been any cases in which the claiming party was penalized ?
No? - why not?
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Re: Re: (Weird Harold)
IIRC, the problem is that the "rights holders" are only at risk if they falsely claim to own the rights, and NOT if they issue a takedown notice in a fair use situation. So if you are confident you own the rights, there is zero incentive to be at all careful about what you go after. The fair user, OTOH, can only open themselves up to massive penalties if they contest it. Even if they win, they have the insane expense of a trip through the court system.
Even under the current house-of-cards copyright scheme, the DMCA is broken.
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Re: Re: Re: (Weird Harold)
512(c)(1)(A)(v, vi):
"(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
http://www.copyright.gov/title17/92chap5.html#512
As long as a copyright owner has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, then there is no penalty for submitting a DMCA notice.
So yes, if a copyright owner outright lies, then they have committed perjury under 512(c)(1)(A)(vi); if they kinda thought something was covered when it wasn't, then there is no penalty. Of the abuses of the DMCA, I'm willing to bet most fall under the latter category, with very few falling under the former.
There is a counter-notice provision (though it's quite complicated, not used by anyone, and still forces the material offline for 10-14 business days per 512(g)(2)(C)).
DMCA is abused; it's a badly written law, and we need to look at how it can be adapted so that it's no longer abused.
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Re: Re: Re: Re: (Weird Harold)
What? Im still getting a ticket?
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Re: false statement in this post
Anyone is free to read your post that I linked to:
http://copyrightsandcampaigns.blogspot.com/2009/02/searching-for-mythical-lawsuit-over.html
and judge for themselves. It's quite clear from that post that you think it's no big deal at all: that it's a minor nuisance.
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Re:
Um. No. It's not. But, again, Weird Harold wants to display his ignorance.
A kid singing winter wonderland IS new creativity, and it is almost certainly protected under fair use. But, you know... details.
Don't look at the kids singing, look at the website with advertising around it making income (but no hint of a profit). That is the true problem.
You apparently are wholly ignorant of the safe harbor provisions of the DMCA. Given your history of being stunningly ignorant on nearly everything you've written about, this is no surprise at all.
By complaining about DMCA takedowns, you are suggesting that Youtube has the right to make money on copyright holders material without paying standard royalties or obtaining permission.
By suggesting that the issues is YouTube making money, you are suggesting that you are totally ignorant of the law and the safe harbor provisions of the DMCA. And, you're also ignorant of basic liability reasoning. You don't accuse the car maker of robbery because its car was used in a robbery. So why are you accusing YouTube of illegality because its tool might have been used illegally.
You don't need anything beyond a takedown notice - the objective isn't to sue the pants off of someone, it is to stop the violation.
Fine. If there's a violation. But when there's not, you create chilling effects and HINDER creativity.
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Re: Re: Re: (Weird Harold)
FAIL
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Chilling Effiects
You may say it's not a big deal but how many parents know what a DMCA notice is? Also not allowing videos to play online takes out a major marketing medium while pissing off customers which takes out the "word of mouth" medium. So let me think of how many artists I've discovered though friends and the internet. Most people don't watch any type music tv shows so the only thing you have going for you is the radio...
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Re: Re:
If the kids sang the song and made a video, and gave a copy to their grandmothers, that would be fair use.
When it gets posted to Youtube, and becomes part of a commercial venture, it is no longer a fair use.
The safe harbour provisions have been stretched to their absolute limits to consider that a site like Youtube would be considered an innocent host. Hosting is suppose to mean just holding the file and returning it in it's same format (you ask for this file, you get this file). Youtube (and many "file hosts") add advertising around the file, manipulate, catalog, and sort the files, group them and offer alternatives (related files) which exceeds the concept of a simple host.
Youtube doesn't make money by providing hosting, it makes money by aggregation of videos and re-presented uploaded files in a different context than the original upload.
Youtube has been very careful not to argue it's safe harbour provisions in front of a court of law too hard, because it won't take a very enlighted judge to realize that youtube isn't just hosting. They tried it in Viacom v Youtube, and well, it didn't play very well. Viacom's lawyers almost laughed them out of the room.
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Re: Re: Re:
But the copyright holders you argue for seem to disagree. Every DMCA takedown notice sent to Youtube is further evidence that *copyright holders* think Youtube falls under the Safe Harbour provisions; otherwise they wouldn't need to bother with a takedown notice - they could just sue directly.
If Youtube isn't a safe harbour then copyright law gets even worse. They would be liable for anything that I went and posted. If I upload any incriminating video they would be liable (if you think it's easy to detect copyright works, note the disagreement between Shepard Fairey and the AP. The Associated Press wasn't even aware infringement occured when Fairey's image was plastered all over the internet). To argue that Youtube is liable for all such uploaded videos is to argue that Youtube should be shut down.
You also ignored by previous reply about "large sums" being specifically mentioned in DMCA law. Do I take that as a concession that the DMCA does not, in fact, provide any penalty for a false-DMCA? I really want to be corrected if I'm wrong. I don't have time to do a detailed reading of the law, but from everything I see there's no provision for a false-DMCA notice...
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Re: Re: Re:
Actually, dear Harold, it's you who should consult a lawyer. Being a part of a commercial venture is not the only test of fair use. Plenty of "fair use" efforts are, in fact, part of a commercial venture. And, in fact, things are even trickier here because the commercial venture has nothing to do with the person who created the video... putting even more emphasis on the fact that this is fair use... something that Weird Harold is evidently entirely unfamiliar with.
The safe harbour provisions have been stretched to their absolute limits to consider that a site like Youtube would be considered an innocent host. Hosting is suppose to mean just holding the file and returning it in it's same format (you ask for this file, you get this file). Youtube (and many "file hosts") add advertising around the file, manipulate, catalog, and sort the files, group them and offer alternatives (related files) which exceeds the concept of a simple host.
No where in the statute does it say anything about a "simple host." By your definition above, fair use wouldn't exist at all. Any ISP is "making money." ISP safe harbors were originally designed to cover, say AOL, from being liable for content put online by folks like Weird Harold. But, Weird Harold was still paying AOL, thus AOL was profiting off of the "illegal content" and according to the law, THAT'S FINE.
Not that Weird Harold seems to be even remotely knowledgeable of the law.
Youtube has been very careful not to argue it's safe harbour provisions in front of a court of law too hard, because it won't take a very enlighted judge to realize that youtube isn't just hosting. They tried it in Viacom v Youtube, and well, it didn't play very well. Viacom's lawyers almost laughed them out of the room.
Uh, say what?!? You do realize that that case still hasn't gone to trial yet, so no one got laughed out of the room. And, in the *nearly identical* case between io and Veoh, the court SIDED WITH VEOH, saying that it was, in fact, protected by the safe harbors of the DMCA.
So, once again, Weird Harold displays his ignorance. He's ignorant of economics. He's ignorant of the law. He's ignorant of art and culture... and now he's ignorant of case law and current events.
What will Weird Harold be ignorant of next? Stay tuned!
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Take-downs
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