SOPA Is So Bad, Political Cartoonist Comes Out Of Retirement To Create New Comics Warning About It

Big Entertainment Companies Issuing Wrongful YouTube Claims On Public Domain Works

from the that's-depressing dept

Tue, Dec 20th 2011 3:53pm — Mike Masnick

As Congress is debating SOPA, it seems worth taking a look at how copyright holders are already abusing existing copyright law to take down content they have absolutely no right to. Cory Doctorow has a column concerning how the "real pirates" of YouTube may be the big entertainment companies, who have been using YouTube's ContentID system (not the DMCA) to "claim" a ton of public domain works:

FedFlix is a charitable project launched by Carl Malamud, a "rogue archivist" who raises funds to digitise and upload videos created at US government expense. Under US law, government creations are in the public domain and can be freely used by anyone, but the US government is remarkably lax about actually making its treasures available to the public that owns them.
Malamud's group pays the fees associated with retrieving copies from the US government � sometimes buying high-priced DVDs that the government issues, other times paying to have unreleased videos retrieved from government archives � and posts them to YouTube, the Internet Archive and other video sites, so that anyone and everyone can see, download, and use them.
Malamud's 146-page report from FedFlix to the Archivist of the United States documents claims that companies such as NBC Universal, al-Jazeera, and Discovery Communications have used ContentID to claim title to FedFlix videos on YouTube. Some music royalty collecting societies have claimed infringements in "silent movies".

I've embedded that full report below as well. As Doctorow notes, under the ContentID system, getting too many strikes can get you in trouble, but there apparently is no way to defend yourself by saying "this work is in the public domain." The closest may be that it's fair use, but fair use doesn't apply to the public domain (fair use is an exception to copyright law, but there's no copyright on public domain material).

There are two issues here. One is the general over-claiming of material by others. That's generally known as copyfraud and should be punishable, but rarely is. The second, perhaps bigger, point is how this ContentID system -- the kind of pre-monitoring system that the entertainment industry has been trying to foist on every user-generated-content site for the past few years -- isn't always so benign. It can clearly catch perfectly legitimate things, and that's a problem if we're trying to encourage the free flow of information.

But, of course, nothing gets done to fix any of this because, as Cory notes, "there is no organized lobby for the public domain." And that's sad. Because, realistically speaking, Congress should be the lobby for the public domain, as they're supposed to (I know, don't laugh) represent the interests of the public.

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Filed Under: carl malamud, copyfraud, copyright, copyright abuse, public domain, takedowns

42 Comments

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Anonymous Coward, 20 Dec 2011 @ 4:10pm

Al-Jazeera, really? I find that hard to believe ... I thought they were cool. They even have a creative commons repository.

Well, I guess it may depend. If Al-Jazeera is claiming privileges over content because they don't want content they created claimed and removed by others (ie: Al-Jazeera wants to put it under creative commons), then that's fine, and only shows their (somewhat reasonable) response to our broken legal system. If our legal system wasn't broken, then this wouldn't be necessary.

If they're claiming privileges over content to have it removed then that's a different story.
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- Anonymous Coward, 20 Dec 2011 @ 4:18pm
  
  Re:
  Here, I searched the PDF to find some relevant text.
  
  " Al Jazeera has claimed rights to �Work Pays America� (item 117), a 1936 ﬁlm by the Works Progress Administration which we obtained from the FDR Presidential Library."
  
  (From that PDF).
  
  Since the article doesn't say much, I'll give Al-Jazeera the opportunity to respond. In the meantime, I'll give them the benefit of the doubt for now. I await their response.
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Anonymous, 20 Dec 2011 @ 4:10pm

Wow, what's with these companies' sense of entitlement?
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- FuzzyDuck, 20 Dec 2011 @ 4:21pm
  
  Re:
  What these rogue corporations do can be called by their own favorite term: copyright theft, they are stealing copyrights from the public and cashing in on those stolen goods.
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  - :Lobo Santo (profile), 20 Dec 2011 @ 4:26pm
    
    Re: Re: Ye Aulde News!
    "Copyright" and "theft from the public" are synonyms these days.
    [ link to this | view in chronology ]
Aaron (profile), 20 Dec 2011 @ 4:17pm

Idea.
Mike near the end of your post when it talks about there being no public domain lobby gave me an idea,

why doesn't someone try and get the EFF, Archive.org, (I would thinkthe ALA would also support it) et al to form some mega public domain lobby tasked with defending and expanding the public domain, it seems that having the groups fragmented has only hurt it. Maybe try and get some biggers names like Google in to the mix.

The pro copyright board has the MPAA and the RIAA and a few others why not team up and fight back in a unify front, that way the lobby *may* even have funds to fight back on ways that would reach non techy people on TV, print, and radio.
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- :Lobo Santo (profile), 20 Dec 2011 @ 4:19pm
  
  Re: Idea.
  Sounds like much work.
  Let's just issue 'lobbyist hunting permits' which allow each hunter to bag no more than 5 lobbyists during hunting season.
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  - Anonymous Coward, 20 Dec 2011 @ 4:27pm
    
    Re: Re: Idea.
    and why such limitations?
    [ link to this | view in chronology ]
    - :Lobo Santo (profile), 20 Dec 2011 @ 4:30pm
      
      Re: Re: Re: Idea.
      We just want to thin the herd--in the future we may find the lobbyist had a unique ecological niche and be S.O.L. because we caused them to go extinct.
      [ link to this | view in chronology ]
      - Anonymous Coward, 20 Dec 2011 @ 5:46pm
        
        Re: Re: Re: Re: Idea.
        Nah, I say they should just go extinct.
        [ link to this | view in chronology ]
        
        The Devil's Coachman (profile), 21 Dec 2011 @ 6:11am
        
        Re: Re: Re: Re: Re: Idea.
        I second that. Death to all lobbyists!
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      - kirillian (profile), 21 Dec 2011 @ 6:52am
        
        Re: Re: Re: Re: Idea.
        Lobbyists grow on money trees. There should never be a concern with causing extinction. The entire species can be repopulated at any time.
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      - DOlz (profile), 11 Jan 2012 @ 7:57am
        
        Re: Re: Re: Re: Idea.
        You would have better luck driving mosquitos to extinction.
        [ link to this | view in chronology ]
  - Hephaestus (profile), 21 Dec 2011 @ 6:45am
    
    Re: Re: Idea.
    Come hunting season I think K street would be deserted.
    [ link to this | view in chronology ]
    - Hephaestus (profile), 21 Dec 2011 @ 7:01am
      
      Re: Re: Re: Idea.
      I just realized that isn't funny unless you know what K street is.
      [ link to this | view in chronology ]
ken (profile), 20 Dec 2011 @ 4:56pm

This from the same groups that say SOPA/PIPA will not be abused when they are some of the biggest abusers out there.
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- vegetaman (profile), 20 Dec 2011 @ 7:32pm
  
  Re:
  "You can trust us THIS time... We PROMISE!"
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Anonymous Coward, 20 Dec 2011 @ 5:38pm

It seems to me that unless one knows what was actually sent by rights holders to YouTube and how YouTube's Content ID system actually works, commenting on how well or badly the system works is a bit premature.

It is also useful to bear in mind that just because a copy of a work is retrieved from a USG archive it does not necessaryly mean that no private rights pertain.

USG works (defined at 17 USC 101) excluded from copyright comprise either works prepared by a federal officer or employee as part of his/her official duties, or works in which copyright is secured by the USG by bequest, assignment, devise, or otherwise from the rights holder (17 USC 105).

Works prepared by non-federal parties, even if under a federal funding agreement (contracts, grants, and cooperative agreements), are not USG works. Rights in these works are only extinguished should such parties transfer such rights to the USG by bequest, assignment, devise, or otherwise.

Hence, it is unwise to immediately assume that because a work was obtained from a government archive that copyright must not pertain.
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- Anonymous Coward, 20 Dec 2011 @ 5:47pm
  
  Re:
  I think you may be onto something here.
  
  This would appear at least on the surface to be an issue of the contentID system, and not of false claims. As an example, if Al Jazeera used part of "Work Pays America" in one of their reports, and then claimed copyright on the report, does contentID then tag any video that matches any part of that report as offending?
  
  For me, this story just smacks of "didn't check it" journalism, proving once again that Techdirt is not much more than an advocacy group against copyright - dare I say lobbyist front?
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  - Anonymous Coward, 20 Dec 2011 @ 6:40pm
    
    Re: Re:
    Watching you prove that you don't actually read the articles is amusing.
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  - Anonymous Anonymous Coward, 20 Dec 2011 @ 6:42pm
    
    Re: Re:
    Hey pot, you calling the blue kettle black?
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  - Vincent Clement (profile), 20 Dec 2011 @ 7:31pm
    
    Re: Re:
    You seem to be missing the point that the contentID system is unreliable. Yet, this is the kind of system the MPAA and the RIAA want in place. Public domain content be damned.
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    - Anonymous Coward, 20 Dec 2011 @ 9:15pm
      
      Re: Re: Re:
      I know of not a single content-producing company that wants a site content identification system that is unreliable. Such systems create unnecessary work for them as well.
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      - TtfnJohn (profile), 20 Dec 2011 @ 10:01pm
        
        Re: Re: Re: Re:
        They may not WANT contentID to be unreliable but that doesn't make it reliable just because they want it to be.
        
        And it isn't reliable.
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      - That Anonymous Coward (profile), 21 Dec 2011 @ 4:01am
        
        Re: Re: Re: Re:
        Umm they want the contentID system google uses now, they like that it is insanely out of whack. There is no work for the content producing companies in these checks, if it even thinks about looking infringing it is taken down without them having to dirty their hands.
        [ link to this | view in chronology ]
- Vincent Clement (profile), 20 Dec 2011 @ 7:28pm
  
  Re:
  Explain this:
  
  "Al Jazeera has claimed rights to �Work Pays America� (item 117), a 1936 ﬁlm by the Works Progress Administration which we obtained from the FDR Presidential Library."
  
  and this:
  
  "Some music royalty collecting societies have claimed infringements in "silent movies".
  
  Al Jazeera was launched on November 1, 1996. And how does a music collection agency claim an infringement on a silent movie?
  
  You constantly miss the point of the articles.
  [ link to this | view in chronology ]
  - Anonymous Coward, 20 Dec 2011 @ 7:54pm
    
    Re: Re:
    "And how does a music collection agency claim an infringement on a silent movie?"
    
    "Silent" movies still have music, boy.
    In some cases, the music used may (repeat MAY) not be PD, either because the actual recording used is still under copyright or the music itself is still copyrighted.
    S#!t happens...
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    - TtfnJohn (profile), 20 Dec 2011 @ 9:58pm
      
      Re: Re: Re:
      No, silent movies were silent as the sound track hadn't been developed when they were made. Pianists and ogranists in theatres would often play something "on the fly" that would accompany the picture to accompany it, help to increase tension and all that stuff. Later some movie companies would send out music to play while the movie played and the musicians in the theatres would riff on that. It's that that you can sometimes hear on copies of silent movies made after the sound track came along. The rest of the time the music is just someone jamming and riffing as the movie goes on.
      
      If the music played was in the public domain before the movie was made and the sound track (much later) was added containing that music the music itself is still in the public domain. It's just the specific combination of music and pictures that is subject to a new copyright.
      
      That didn't work to combat talkies so that soon died, anyway.
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      - Anonymous Coward, 21 Dec 2011 @ 6:22am
        
        Re: Re: Re: Re:
        John, silent movies may have no sound, but most of them had music played with them when they were shown. What would appear online may be a version of the silent movie with music added.
        
        "If the music played was in the public domain before the movie was made and the sound track (much later) was added containing that music the music itself is still in the public domain. It's just the specific combination of music and pictures that is subject to a new copyright."
        
        Yes, and if they are part of a public performance together, then there is copyright, and there is performance rights fees to collect.
        
        Since Mike didn't put enough information up for us to really know what is going on, it's all guess work.
        [ link to this | view in chronology ]
        
        Ed C., 21 Dec 2011 @ 10:05am
        
        Re: Re: Re: Re: Re:
        Yes, and if they are part of a public performance together, then there is copyright, and there is performance rights fees to collect.
        
        No, transient public performances are NOT copyrightable. Even if the two were combined in a recorded form, such a derivative is not copyrightable. I guess you feel it's OK to take and profit from the works of others, but I doubt you would feel the same if someone else were to reuse your composition. Some would say that such blatant "remixing" is plagiarism, no THEFT, and that such criminal acts must be dealt with as swiftly and harshly as possible--without due process.
        
        Myself however, as most around here, would argue that the use wouldn't get copyright, but could be considered "fair use".
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    - Rich, 21 Dec 2011 @ 5:48am
      
      Re: Re: Re:
      Wow, what an ignorance statement, and a smug "boy" to top it off.
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      - The Devil's Coachman (profile), 21 Dec 2011 @ 6:12am
        
        Re: Re: Re: Re:
        Sounds like the AC needs a couple dozen kicks to the nads.
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- Vincent Clement (profile), 20 Dec 2011 @ 7:29pm
  
  Re:
  Explain this:
  
  "Al Jazeera has claimed rights to �Work Pays America� (item 117), a 1936 ﬁlm by the Works Progress Administration which we obtained from the FDR Presidential Library."
  
  and this:
  
  "Some music royalty collecting societies have claimed infringements in "silent movies".
  
  Al Jazeera was launched on November 1, 1996. And how does a music collection agency claim an infringement on a silent movie?
  
  You constantly miss the point of the articles.
  [ link to this | view in chronology ]
  - Atkray (profile), 20 Dec 2011 @ 8:37pm
    
    Re: Re:
    He doesn't read.
    1: It takes too long.
    2: He would have to clean the spittle off the c=screen to see it.
    3: That takes too long.
    4: Since he has not been able to comprehend anything he read after the second grade, he would have to find someone he can trust to explain it to him.
    5: That would take too long.
    
    Is anyone else wondering how it is that FedFlix got their design past the lawyers over at Netflix?
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- PaulT (profile), 21 Dec 2011 @ 1:08am
  
  Re:
  "It seems to me that unless one knows what was actually sent by rights holders to YouTube and how YouTube's Content ID system actually works, commenting on how well or badly the system works is a bit premature."
  
  In that case, I hope you're not the same AC who's always in here attacking YouTube and similar services for not magically identifying copyrighted material without intervention from copyright holders. Or do such distinctions only matter when it's the corporations who are in the wrong?
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- TechnologyJunkie (profile), 21 Dec 2011 @ 8:17am
  
  Re: Government copyright exclusion
  The article was talking about videos created at us government expense, not simply material retrieved from the government archives. The difference is perhaps subtle but meaningful. A library (say that of Congress) is a government archive in which there are works not created at government expense and for which you could go to jail if you started copying and reselling works obtained from said library.
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disfit (profile), 20 Dec 2011 @ 10:06pm

Criminal?
I have always assumed that claiming something is yours when it isn't was a criminal offence, i.e. fraud or falsification of records.

Silly me.
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- Anonymous Coward, 21 Dec 2011 @ 4:36am
  
  Re: Criminal?
  I have always assumed that claiming something is yours when it isn't was a criminal offence, i.e. fraud or falsification of records.
  
  Silly me.
  
  Silly you, indeed. � I'm not joking.
  
  Suppose that I tell you right here and now, �I own the Brooklyn Bridge.� It's not criminal to say that. Nor should it be.
  
  But it isn't just limited to �Brooklyn Bridge� type statements. The test isn't even whether I'm trying to deceive you, or whether you believe me or are likely to believe me. Instead, as it turns out, the Supreme Court has a case right now which will further settle the contours here: United States v. Alvarez.
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Bikerelc (profile), 20 Dec 2011 @ 11:02pm

If I were big media I would simply post something like:
This comment closely resembles comments elsewhere and may violate my own copyright, as such I am requesting that techdirt.com be removed from all dns servers immediately.
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DannyB (profile), 21 Dec 2011 @ 6:05am

What's good for the goose
Is good for the gander.

There should be statutory damages of, oh, let's say $150,000 per instance of false claim of copyright ownership and per false take down request.

Software tools that YouTube (and others) offer to content owners should be expressly recognized as DMCA take down requests under penalty of perjury. After all, these mechanisms wouldn't have been built if it weren't to automate DMCA take downs. Whoever, probably in management, that made the decision to offer certain parties automated take down tools could be deposed to discover exactly why these tools were created. It can only be a concession YouTube made to that would not have been made except for the existence of the DMCA.
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Renee Marie Jones, 21 Dec 2011 @ 8:08am

Ownership society
The Republican ideal of an "ownership society" is based on the concept that only corporations have the rights of ownership. Companies and "rights" organizations cannot comprehend the idea that anything belongs to the public.
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Miff (profile), 22 Dec 2011 @ 10:52am

The other day I actually came up with an idea to prevent copyfraud: "Three strikes" should go both ways: if one gets three claims on the same copyrighted material refuted, then the copyright it revoked and that material enters the public domain.
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