ADM Says Video Mocking Them Is Copyright Infringement; Abuses Copyright Law To Stifle Free Speech
from the not-cool dept
So we just had that post about how a TV station in Boston was abusing copyright law to take down slightly embarrassing video of a weatherman it employs. In the post, I noted that while this was just over a potentially off-color joke, there were important free speech implications to it. Law professor Peter Friedman quickly points us to a more serious case of a giant company stifling criticism through DMCA takedown. Apparently, food conglomerate, Archers Daniel Midland (famous, among other things, for getting caught in a massive blatant price-fixing scheme that made pretty much all of your food a lot more expensive than it needed to be), doesn't believe criticism of its CEO should be allowed. Friedman had posted a link to a video that took a bland, boring video of ADM's CEO droning on about "agriculture's role in the growing economy," and edited it to "make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets." Honestly, the original video looks just like the ridiculous corporate video that is made in the movie Michael Clayton, about a company that is clearly supposed to be ADM.Friedman points out how this is a clear abuse of copyright law and a violation of free speech:
This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution's guarantee of free speech, all you need is to think of a situation like this -- one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it's unconstitutional censorship!The courts have tried to reconcile the question of how copyright law can possibly survive a First Amendment challenge (after all, the First Amendment says Congress shall make no law that interferes with freedom of speech... and yet that's exactly what copyright does) by saying that a robust fair use exception is the key to making it okay. But when fair use is trampled on repeatedly, it makes you wonder how anyone can still claim that copyright isn't a massive abuse of the First Amendment.
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Filed Under: copyright, dmca, free speech, takedown
Companies: adm, archer daniels midland
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Minor correction
Michael Crichton was a famous author.
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Re: Minor correction
Michael Crichton was a famous author
Dah. Absolutely true. Don't know how I made that mistake. Fixed.
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These guys are idiots.
I think notices like this should be ignored, and if ADM starts a lawsuit their counsel should be sanctioned.
Jonathan Swift is spinning in his grave right now.
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Re: These guys are idiots.
Well, right and wrong. Abuse of copyright law? Sure. A free speech issue? No. Only governments can be accused of violation of the 2nd amendment. Simply doesn't apply to any other entity. I can't suppress your ability to say anything you like, short of slander, which would go to a civil court anyway. Same thing here.
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Re: Re: These guys are idiots.
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Re: Re: These guys are idiots.
> be accused of violation of the 2nd amendment.
> Simply doesn't apply to any other entity.
But in this case, the private corporation is using a branch of government to enforce its attempts to shut down speech-- namely, the DMCA and the courts that enforce it.
If the corporation were just kicking and screaming and demanding the removal of the video, that's one thing, but when they turn to the government to use the legal system to enforce it, then it does become government action and the 1st Amendment is implicated.
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Re: Re: These guys are idiots.
And where, exactly, is there a gun involved in this?
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Re: Re: These guys are idiots.
Because copyright is often contentious, a metaphor may help. Let's say Congress enacted a law that said private individuals may shoot and kill anyone who speaks out against the current government, without repercussion, and that this law preempts any state law to the contrary. Such a law would clearly be facially unconstitutional because (among other things) it violates the First Amendment - the government would be creating a condition in which people could not speak. Admittedly, the government would not be applying the law in any case - it would not be doing the shooting - but it would have created a situation in which the shooting would occur.
So too here. Congress has created a condition in which speech is obviously and demonstrably stifled by giving private actors the ability to preemptively cut off speech based on its content and origin. Under the First Amendment, that is not a permissible exercise of Congress's power.
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Re: Re: These guys are idiots.
With the DMCA, online, you certainly can.
Free speech issues are not solely embodied by the second amendment. Yes, that's the sole law, but it is inadequate and the issue of free speech itself is larger than the implementation in the Constitution.
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Double Edge Sword
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Re: Double Edge Sword
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Re: Double Edge Sword
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Re: Re: Double Edge Sword
I would argue that the Copyright Clause is the source of the fair use doctrine: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I think it also strengthens the claim that not having any copyright at all is a "taking".
I seriously doubt that the ruling could survive a challenge, since parody is a clearly recognized fair use. If they're using a substantial portion of the video, perhaps that might tip the scales in the plaintiff's favor.
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Re: Re: Re: Double Edge Sword
A lack of copyright is certainly not a taking, and I don't see how you could logically come to such a conclusion. You physically cannot take a copyright away from somebody, it's simply impossible (you may be able to take their only physical copy, but that is theft, not infringement).
Copyright itself is a taking of the natural rights of society with the intent of providing overall benefit through the increased incentive to create works.
The portion of source material used is not a consideration as long as what is used is for the parody purposes. Meaning even if the whole work was copied, but the whole work was used a parody, fair use still stands strong.
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Re: Re: Re: Double Edge Sword
This is a signficant distinction. The Founders certainly did not believe in a natural or even a common law right in the author to copyright. That notion (which sprang out of a political debate in England around 1709,) had largely been debunked even in English law. American colonial printers aggressively reprinted British works that were still under British copyright, sometimes without attribution and almost uniformly without royalties to the author. The first US copyright law, passed in 1790, covered only books and maps created, printed, distributed, and registered in the US by a US citizen: sheet music would not be covered for another century, and recordings of music performances would wait until the 1970s. Foreign works were not covered until the mid 19th century.
In other words, "not having any copyright at all" is the default state of American law for most works. Only recently has copyright been extended. So no natural or common law right exists top copyright. Moreover, it cannot be a taking for Congress to stop giving away something Congress has no obligation to give away, and nothing in Constitutional or common law requires Congress to provide a copyright.
Incidentally, the argument that the IP clause is the source of fair use is interesting. If correct, it further weakens the holdings on this issue. After all, if the IP clause itself requires fair use, then the First Amendment must require _even more_ expressive rights. Note that the First Amendment is an amendment, adopted later in time to the original Constitution. That means that its mandate is not to be read _with_ the IP clause, but is to be read as _superseding_ the IP clause (this is the same procedure the Supreme Court uses with the 14th Amendment vis-a-vis the 11th) to the degree they conflict in any measure. If the IP clause includes limits on copyright (and I agree that it clearly does,) then the First Amendment acts as a further limit, that nothing Congress is empowered to do by the IP clause may in any respect abridge anyone's freedom of speech, or of the press.
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Too Close To Home
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Did a court order this to be taken down?
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Re: Did a court order this to be taken down?
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Re: Did a court order this to be taken down?
yay, the "LAW"!
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abuse of the law
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Re: abuse of the law
Yet again, you cannot blame the LAW for this. The courts are set up for a reason, and they do allow you to represent yourself. IF you cannot afford the attorney fees and feel your in the right, you can always stand up for what you believe.
The DCMA was put in place BECAUSE the court systems take so long to go through, the DCMA allows at least a cursory approach to limit losses to Copyright owners by those that chose to steel. There are processes for countering the DCMA, and the person has the right to counter it if they chose.
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Re: Re: abuse of the law
"The DCMA was put in place BECAUSE the court systems take so long to go through, the DCMA allows at least a cursory approach to limit losses to Copyright owners by those that chose to steel."
The DMCA also allows entities to force content to be taken down when there is clearly no cause to do so. Yes, there is technically a mechanism to counter this, but the mechanism is very weak and ineffective. The effect is that the law allows abuse and the repression of free speech rights.
As far as defending yourself goes, you are being either disingenuous or naive. If you cannot afford representation and court fees, not to mention having to take time off work, then you have no recourse through the law. The law, in practice, is only for those who can afford it.
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Re: Re: abuse of the law
btw, your spelling sucks
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Parody & Satire are Protected Speech
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Tom Cruise?
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satire, parody, and criticism
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Re: satire, parody, and criticism
Parody does at some point require context, what Kevin Smith calls the "tee-hee", where we all understand that there is some humor in the comments or they are made in jest.
Putting words in someone mouth without context, even if the words are correct, can be misleading. The old "idiot in a hurry" might understand the humor, and actually think this is what the person said.
Without seeing the video, it is hard to draw conclusions. I would say that the poster not contesting the take down notice says a whole bunch about the content, however.
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Re: Re: satire, parody, and criticism
No it doesn't at all. It only says something about the size of ADM's wallets. That's the ONLY real and reasonable conclusion you can draw. The video could contain praise of ADM, how do you know? Just because one side wields a larger sword doesn't make them the morally correct party. I swear TAM, sometime I think you like to simply see your comments up on the blog "just because."
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The silence is deafening, if you know what I mean.
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- If I do not like it, then it should be limited
"If the video was done in such a manner that people viewing the video would not be aware of the parody,"
- Lowest common denominator should be the rule of thumb?
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Satire, Parody & Criticism
A Modest Proposal
For Preventing The Children of Poor People in Ireland From Being Aburden to Their Parents or Country, and For Making Them Beneficial to The Public
Jonathan Swift (1729)
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parody
El Steevo and btr: thanks for concisely and accurately kicking out of the game that frivolous argument that this is nothing but a private actor suppressing speech on its own. How ADM could do it in this case without hiding behind the purported authority of the courts is utterly beyond me.
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Re: parody
ADM likely used copyright because it is the most expedient way to get the video removed. Going to the courts and trying to get an injunction to get the video removed could lead to a protracted argument, court dates, depositions, and all sorts of other things that would take time and continue to, as they would say "injure their client's reputation" or something similar. ADM owns the video footage in question, and thus their DMCA notice is right and proper, although done for other reasons. DMCA pretty much requires prompt action by YouTube, everything else would take time.
We may not like this sort of use of DMCA, but it is within the law to do so.
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Re: Re: parody
But I agree that the DMCA permits and even mandates a knee-jerk reaction whereas injunctive relief demands some process and at least the application of the judge's reason to the question of likelihood of success. And I agree that that is an excellent reason for a company that is unlikely to face litigation for doing so, to overreach. That does not for a moment make its conduct legal. As I'm sure you would agree, the fact that people get away with illegal conduct does not legitimize it.
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Re: Re: parody
Not really. The DMCA only legally allows the takedown of copyright violations. Since parody is defined under law as not infringing and therefore not a violation, using the DMCA to suppress a parody is an abuse of the DMCA.
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Re: Re: Re: parody
I am not defending ADM (I think they are aggressive jerks in many ways) but this is not the method to get back at them. As I said in another post:
"I would say the person who posted the video (who is probably working very hard to stay anonymous) will be lucky if they don't get a very fat legal spike up their butts."
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Re: Re: Re: Re: parody
> attempt to defame a person, and put words in their mouth.
The courts give wide latitude and great deference to the 1st Amendment when it comes to parody. Basically they err on the side of parody. Look up Hustler Magazine vs. Falwell and you'll see both a prime example of that as well as the controlling law on the matter. Below is a brief summary of the case, which involved Rev. Jerry Falwell suing Hustler Magazine and Larry Flynt for libel. Hustler's (successful) defense was parody. There's no question that if Hustler's ad was protected parody, as debased as it was, then this ADM ad surely would be covered by the same standard.
Hustler Magazine vs. Jerry Falwell, 485 U.S. 46 (1988)
The satire at issue was a takeoff of an advertising campaign for Campari, an Italian apéritif. The real ads were tongue-in-cheek interviews with celebrities talking about their “first time.” The ads played off a double entendre, with the headline (“X talks about his first time”) and the interview first sounding like a discussion of the star’s first sexual experience, then revealing that the discussion actually concerned the subject's first time drinking Campari.
The Hustler parody featured a picture of Falwell, and an "interview" in which "Falwell" describes his first sexual experience as occurring “with Mom” in an outhouse while both were "drunk off our God-fearing asses on Campari." In the spoof interview, "Falwell" goes on to say that he was so intoxicated that "Mom looked better than a Baptist whore with a $100 donation," that he decided to have sex with his mother since she had "showed all the other guys in town such a good time" and that they had intercourse regularly afterwards. Finally, when asked if he had tried Campari since, "Falwell" answered, "I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?" The ad carried a disclaimer in small print at the bottom of the page, reading "ad parody—not to be taken seriously." The magazine's table of contents also listed the ad as "Fiction; Ad and Personality Parody."
Falwell sued Larry Flynt, Hustler magazine, and Flynt's distribution company in the United States District Court for the Western District of Virginia for libel, invasion of privacy, and intentional infliction of emotional distress. Before trial, the court granted Flynt's motion for summary judgment on the invasion of privacy claim, and the remaining two charges proceeded to trial. A jury found in favor of Flynt on the libel claim, but found in favor of Falwell on the intentional infliction of emotional distress charge, and awarded Falwell $150,000 in damages.
The United States Supreme Court reversed the lower court ruling and held on appeal, in a unanimous 8-0 decision (Justice Kennedy took no part in the consideration or decision of the case), that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them.
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Do you think the EFF monitors all the YouTube takedown notices? How do you think this stuff comes to the general public and the EFF's attention? It's thanks to people like Mike.
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Your effort to make a point betrays a misunderstanding about something fundamental to copyright. ADM might own a particular copy of the video that, if it were stolen, ADM would have a legal claim right to recover. So, for example, if someone broke into ADM's offices and stole a videotape or a cd-rom with the video, ADM could recover that videotape or cd-rom.
But ADM does not "own" the video we're talking about in the sense that ADM can exert control over ANYTHING that is done with the digital information that the video consists of. ADM can only exert control over uses of the video that are copyright infringements or trademark infringements. Thus, for example, ADM could stop someone from using the video to exploit a market for the original work if that market had been created by the original work (copyright). And ADM could stop someone from using the video to fool people into thinking that the someone might really be ADM (trademark).
But this is no such case. ADM posted the video online. Merely copying the video is not illegal. The redubbed video could not have been mistaken as something ADM had produced. Nor did it exploit any market ADM had in mind for the video when it produced the orignal video.
And the fact that ADM's reputation might have been hurt by the redubbed video does not change anything. If mere harm to reputation could be enjoined, no one could create a parody, a negative review, a critique, or anything else of a negative nature (have you seen the web lately?) without being subjected to a lawsuit.
That is precisely why this is a First Amendment issue. It's as if ADM had sent a takedown notice to Mike because something someone wrote on Mike's blog was critical of ADM.
Harm to reputation would only be the foundation of a lawsuit directed at critical material or parody if the material were defamatory. But to be defamatory, the criticism has to be something people would take as true but was not true. Again, one could not see this video and think it was really ADM's CEO boasting proudly of awful things ADM had done.
I have no doubt that ADM sent a takedown notice because the video reflected poorly on the company. But if ADM's lawyers had done anything to review the legitimacy of the redubbed video's presence on YouTube, they would have realized there was no legal basis for ADM's claim. Yet, because ADM can afford to litigate in a no-holds, scorched earth manner, and because there are so many people who so misunderstand what "property" is (I can copy and rework your digital video even if I can't steal and rework your car), baseless takedown notices like ADM's more often than not result in the copyright holder getting what it wanted.
In short, if ADM went into court (with depositions and court dates and all that other legal stuff), ADM would lose.
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Re:
ADM owns the video, and all the rights that go with it. The only exceptions would be the standard run of fair use items (which are still really a defense, essentially admitting violation "but....").
ADM posted the video online. Merely copying the video is not illegal.
For your personal consumption, yes. For use as part of a news story, yes. To use in other ways, well, now it depends.
The redubbed video could not have been mistaken as something ADM had produced. Nor did it exploit any market ADM had in mind for the video when it produced the orignal video.
You see, that is where you hit a problem. First, we don't have the dubbed video to make that distinction. However, I can say from looking at what the content was of the dubbed message, it's intent was to exactly mimic the original speaker, and to create confusion. There was no "tee-hee" as Kevin Smith would call it.
It's Mike's old "moron in a hurry" thing. If the average person, without knowing the details, might be mislead by the dubbed video, then it is likely not a parody.
I have no doubt that ADM sent a takedown notice because the video reflected poorly on the company.
Actually, I suspect they used DMCA because it was expedient to stop what would appear to be a misleading and slanderous video from making the rounds. Humor is humor, but putting hateful and nasty words into someone else mouth and making it like they said them isn't funny, it is mean, nasty, and slanderous.
I would say the person who posted the video (who is probably working very hard to stay anonymous) will be lucky if they don't get a very fat legal spike up their butts.
So your whole post is entertaining, but I think you start from the wrong point. It is difficult to see the parody in any of this, and yes, ADM owns the video and can control much of what happens with it.
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Re: Re:
That's illegal. The DMCA is to be used solely for copyright infringement claims. Using it because you don't like something or even if you believe it is defamatory is not a reason that you are allowed to make a DMCA claim.
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Re: Re: Re:
"That's illegal. The DMCA is to be used solely for copyright infringement claims. Using it because you don't like something or even if you believe it is defamatory is not a reason that you are allowed to make a DMCA claim."
Bah! Legal-schmegal. TAM doesnt care about the law (or truth, or accuracy, or reason...) he only cares about GETTING PEOPLE. If it takes breaking the law to do so, so be it! But ONLY for his corporate butt-buddies, mind you. Its DIFFERENT if you or I chose that path.
Big Corporate Butt Masters DMCA takedown: JUSTIFIED! No matter what, in every case
Little Guy/Private Citizen fighting back against DMCA: FUCK YOU serf, you will suck the teat of Big Corp and LIKE IT! We will TELL you what is right and wrong, and you will ABIDE!
This is what Traitor Against Mankind thinks.
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