Sad State Of Copyright: Guy Using Short Clips Of Music In Viral Videos Accused Of Infringement
from the ridiculous dept
Brian LaSorsa points us to the unfortunate case of Steve Kardynal, a pretty popular maker of funny online videos. There are all sorts of creative people who have been enabled to create and put their works out to the world thanks to things like YouTube. Kardynal makes funny sketches, with some of the most popular being his "Songs in Real Life" videos, in which he creates scenes where every so often the dialogue actually is a short clip -- between 3 and 10 seconds -- from a popular song. Unfortunately, as he notes in the video explaining what happened, the second one of these videos received a takedown from Sony (a year after it was posted):Realizing that getting three strikes on YouTube means he would lose his account -- which already has about 100 million views -- he's pretty freaked out. In response, he's set his other "Songs in Real Life" videos to private to hopefully avoid getting any other strikes while he tries to figure out what to do.
While his videos are no longer available, with a little searching you can find them elsewhere. I don't know how long this will remain available, but here's someone who put all three of the "Songs in Real Life" videos into a single video. It's difficult to see how this isn't fair use, and I'd argue that this is a clear case of Sony engaging in copyfraud.
As Steve notes, all of the video clips are between 3 and 10 seconds. No one is going to reasonably claim that this takes away from the market for that song. Furthermore, as he also points out, he listed all the songs that were used in the description of his video and made it easy for people to go buy the songs. In other words, it's difficult to see how these videos didn't actually help the market for these songs, rather than hurt it. The Lenz v. Universal case showed that copyright holders need to take fair use into account when they issue DMCA takedowns, and it certainly doesn't look like Sony did so in this case.
But, really, what's even more interesting about this story is just how much it has impacted Steve. He talks about how he's afraid to lose all that he's worked on and how it's like losing a family member. This is the exact opposite of what copyright law is supposed to do. Here it's being used to stifle and shut down creativity. And while some may claim that what Steve feels is no different than what an artist whose work is infringed on experiences, it seems quite different, actually. With an infringement, an artist hasn't lost anything. It's just that their own wishes for how the music is used or paid for gets denied. In this case, the content is actively being shut down. There's a real loss. That's unfortunate.
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Filed Under: comedy, copyfraud, fair use, songs in real life, steve kardynal, viral video
Companies: sony, youtube
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Re: Zakida Paul
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"Mine! Mine! Mine!"
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That, in a nutshell, demonstrates how you just don't get it. Having your rights violated is a loss, Mike. I'm amazed you don't understand that.
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That, in a nutshell, demonstrates how you just don't get it. Someone, somewhere, will violate any creator's rights. Most of the time, it will be done by someone who was not, is not, and never will be a customer; you cannot lose what you do not have.
And yet the creator will still have access to their creation, they will still own the rights, they can still sell their creation. Those who infringe violate the rights of creators less than Sony has violated Mr. Kardynal's rights.
I'm amazed you don't understand that.
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Ergo, all traffic laws should be abolished."
You people could not be more brain dead if you tried.
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What non-maximalists are saying is that instead of fining noncommercial infringers their whole lifetime's worth of income (49 years of working at $50k/year is about $2.5 million, close to Jammie Thomas' fine), you should have a proportional response to the actual damage done. Just like a cop will warn you for speeding 10mph, but if you're a drunk driver swerving through lanes your ass is going to jail.
You shills couldn't be more sycophantic if you tried.
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You can swing your fist but when it contacts my head you have committed a crime.
The overzealous enforcement of copyright in this case is the same and should be a crime.
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Swing and miss = Assault
Swing and hit = Assault and battery.
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What few realise is that our liberty is abridged (our right to copy annulled) by the privilege of copyright (since 1709).
Copyright is an instrument of injustice and should be abolished. For a short introduction to the rights of man see: http://en.wikipedia.org/wiki/Rights_of_Man#Arguments
For further reading see my comments to http://copyfight.corante.com/archives/2012/04/17/mike_masnick_no_wrong_stop_that.php
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However, I don't see how that invalidates Mike's position on the original purpose of copyright law. Mike's position is that copyright law as originally for the purpose of benefiting the public. Unfortunately, due to the maximalist philosophies of our nations leaders, that original purpose has been changed to what copyright law currently is. That is a major dogmatic shift that would not have happened if our leaders had kept in mind the original purpose of copyright law. It is the right of every citizen to challenge the direction government is going. Mike is saying that the head of the copyright office is going in the opposite direction of the original stated purpose of copyright law.
To say that his argument is wrong is to say that anyone who questions the government's position or actions is in the wrong.
Also, for some reason, you can't keep your websites straight. You alternate between mike writing for Techdirt and Techcrunch.
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Privileges are created for the benefit of those privileged and those granting the privilege (to whom the privileged will be beholden - the state).
You've got to smell something fishy in any law that has to emphasise that it is in the public interest.
There is nothing in the US Constitution about copyright, but people are hypnotised otherwise.
If Mike is interested in challenging received notions about copyright, then there is nothing to be gained by accepting the pretext that copyright is intended to benefit the public.
I think "TechCrunch" is a typo by Alan Wexelblat.
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Article I Section 8 of Constitution says that Congress shall have the power:
8: 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;
My reading of Fitch's point (also from his other writings) is that (1) people have a natural right to exclude others from their writings and discoveries (2) others have a natural right to copy things (3) once a person makes his work public, he has little practical ability to prevent copying (4) the above Section 8 does not grant him or Congress the right to prevent copying, because that would violate a natural right (5) therefore the topic of Section 8 is not copyright.
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5) Section 8 makes no reference to the granting of copyright or patent. It is assumed that the granting of copyright and patent was in Madison's mind when he wrote it, but even if this is true (probably) this clause does not actually empower Congress to grant those privileges. In any case, one cannot go by Madison's intent, because the Constitution is an explicit piece of writing ratified on the basis of its words, not what Madison had in mind to assume the power to enact three years later.
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However, that so many were aware of this monopoly should make you wonder why the Constitution didn't explicitly empower Congress to grant it, especially when Jefferson suggested later to Madison to write that "Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding --- years, but for no longer term and for no other purpose." http://www.monticello.org/site/research-and-collections/patents
All knew full well the difference between rights and monopolies. See the Declaration of Independence. And, therefore, all knew full well the difference between securing an individual's rights, and granting monopolies such as were 'enjoyed' in England. This is why Congress was empowered to GRANT Letters of Marque, but to SECURE the author's exclusive right.
Madison was ethically obliged to recognise only the rights people were born with, and to only empower Congress to secure them - not to abridge them. This is why the clause is worded as it is. It would not have been ratified had it explicitly empowered Congress to GRANT monopolies.
To understand just how antithetical monopolies were you should read http://truth-out.org/index.php?option=com_k2&view=item&id=377:unequal-protection-jefferson-v ersus-the-corporate-aristocracy in order to see why Madison couldn't empower Congress to grant them (however much he wanted to) and the most he could do was put a clause in that he might later insinuate empowered the granting of copyright - that he could pretend secured the author's exclusive right to their writings (against copying by burglars) rather than as it actually did, annulled the people's right to copy (the writings they had purchased).
http://en.wikipedia.org/wiki/Rights_of_Man#Arguments
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x Swing and pointed at but far from another = Threat
- Swing and close to another = Assault
* Swing and hit = Assault and battery
x Swing and hit hard = Attempted murder
x Swing and hit the right place = Murder
+ Atkray's example
- AC's example
* Both
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Or it's the same as being assaulted, kidnapped or raped.
I'm glad I understand that now. And I understand how fair use is the same thing even if it results, in this case, to more sales and more income for me.
Bullshit.
One of us here is an idiot and it sure isn't me.
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This method of rationalization has been used by criminals for centuries.
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Prove it
Oh wait, just like the accusation of Infringement, you don't have to prove that you are correct we need to automatically assume so.
Maybe some nice American IP attorney would like to take on this kids case and ask a court to declare that these ALLEGED infringements are covered under fair use, and not just covered, but copyright owners should have reasonable knowledge that they are covered thereby allowing him to counter sue. Especially after 1 year of being publicised to the World. Sony's due diligence looks lacking
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Oh wait, there it is- just below my right to kick you in the balls repeatedly.
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Actually, that part's easy. it's basic property rights. I have the basic right to do anything I want with my property, even copy it.
Copyright laws don't change that. Copyright laws restrict my legal ability to redistribute the copies, and the DMCA anticircumvention clause(immorally, imho) says that I can't bypass copy protection, but leaves the underlying fact that I am technically allowed to make copies intact.
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Music is made to be listened to. Be it in pieces or as a whole. You don't get to speak and take back your words. You don't get to sing and take back your notes.
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The above sentence was censored by the Freehadists here at Techdirt.
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Infringement and theft
However, in this case, Mr. Kardynal stands to lose access to his creation. In that sense, Sony is much more of a thief than every intellectual pirate in the world combined.
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Re: Infringement and theft
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At the end of the day, he still has his creative output, it's just not on Youtube. Big whoop. Is Youtube really the only distributor in your world?
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And there is no lnoger a de minimis exception for infringement--the "3 to 10 seconds" discussed here. Should there be? Sure. Is there right now? No. And "de minimis" and "fair use" are two different concepts that are being muddled together here (not illogically, just incorrectly).
Is the use fair? Seems so to me. Seems that he's making transformative use of the song snips to make a new work, not taking too much, making a new and distinct thing, not injuring the market for the original (especially if he, himself, purchased the songs he used), etc. etc.
But is Sony's takedown CopyFraud? Let's see: there is no de minimis exception, so a takedown isn't over-reaching there. Is the use fair? Well, we'd have to take that to a court to find out--it's a defense. I'm not going to beat this dead horse here anymore, but I firmly believe that "CopyFraud" should not be trotted out whenever a content owner asserts infringement that may, after analysis in court, be successfully defended by a claim of fair use. The dead horse was killed here: http://www.techdirt.com/articles/20120419/18163418570/chilling-effects-copyfraud-blocking-researcher -fair-use-scaring-him-into-staying-quiet-about-it.shtml, for anyone who missed it.
Does this suck? Sure it does.
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Never stated it was CopyFraud, and from a legal (and grammatical) viewpoint I actually do not like the term either. Dealt with too many fraud cases, mostly digital based though a few with tangible components, to understand that fraud really isn't the correct suffix ever. *shrug*
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Can you lay out the tortious interference thought for me? It's an interesting one, and I'd like to hear more from you on it.
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Yes, but so would fair use doctrine. We're both wacky that way.
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Oh, abso-freaking-lutely. I would go farther. I would assert that Sony should lose their copyright as a penalty for this abuse of the legal system. Maybe then they would use caution and thought before threatening or taking legal action.
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Re: Re: Infringement and theft
Because he can actually suffer a loss here (loss of his channel, which is a scarce good), he stands to lose a lot more, and for the simple inequality of Sony attempting copyfraud by abusing the DMCA process.
Now, if Sony *only* sold stuff over their website, and someone hacked that so it was unusable, then they might begin to have a comparable loss.
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Re: Re: Infringement and theft
Those are all things that are not on his hard drive. Those are all things that would be lost.
Whether YouTube is the only distributor or not is irrelevant. And for that matter, why should anyone have any control over how an individual decides to distribute their creativity?
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Re: Infringement and theft
Wrong, wrong, wrong. He just has to be MORE creative.
Find a way to make funny videos without using someone else's work without their permission.
You guys want more creativity right?
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Is this shill trope 41, or 51, I can't remember.
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Remixing is a well-known source of creativity. Tying together various bits of culture into a new work is a creative act, whether you appreciate it or not.
This is not wholesale copying of someone's work. We're talking roughly 5% of a song, at most; just enough that the person watching can recognize, but no more.
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YouTube isn't Copyright
There is nothing a priori WRONG with infringing copyright.
Failing to realise this is probably where YouTube gets the idea of 3 strikes from.
Copyright is a privilege that means the holder can sue the infringer IF THEY WANT TO. If the holder has no issue with an infringement of their privilege then they simply do nothing, e.g. if they really like what someone has done with their published work. This is why copyright infringement is not wrong, not even illegal.
Unfortunately, the copyright cartel has hyped up infringement so much (they now class it as a 'cybercrime') that everyone now assumes that all copyright infringement is WRONG - a violation of a poor starving artist's human right.
YouTube similarly now supposes that all detected 'likely-to-be-infringements' are wrong (2 of which they so generously forgive with warnings).
Therefore YouTube is not a primary place for artists to publish their work that builds upon the work of others. A secondary place, perhaps - create a new account per work.
The Pirate Bay's Promo-Bay might be worth checking out.
Artists used to take their copyright infringing derivative works to record labels who'd do all the clearance for them. Self-publishing artists today are going to have to avoid any facility still contaminated by the 18th century privilege established by the Statute of Anne.
Perhaps Kutiman has some suggestions?
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So basically the likes of YouTube have to CYA (Cover Their Asses) just for legal and financial stability.
Though I have to say I wouldn't equate the Statute of Anne with what it has devolved into nowadays. The original would be acceptable nowadays by all one would think (well accept the RIAA/MPAA's et al), and at least it wasn't trying to stop private communications
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Re: Re: YouTube isn't Copyright
It would be just as wrong to bankrupt or imprison pirates for printing copies of Daniel Defoe's Robinson Crusoe today* as it would have been to do the same in 1719.
* No, copyright's term has not been extended to life + 300 years - yet.
The privilege of persecuting individuals for their liberties, sharing and building upon their own culture is an injustice - do not accept it. Abolish it.
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Re: YouTube isn't Copyright
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There is no fair use here. It's not educational, it's not parody (of the songs in question), and so on.
It is however, a use that requires the content to be funny, which appears to be a clear case of licensed use.
How hard is that to understand? It's only fair use if you are clueless, or if you are trying REALLY hard to extend the meaning of fair use to areas where is doesn't apply.
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Remind me not to toss out wanton quotes from Monty Python or mention a certain number of words which cannot be uttered on television to try to be funny or to make a point. I'd have to pay someone, somewhere because I did that.
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It is however, a use that requires the content to be funny, which appears to be a clear case of licensed use.
How hard is that to understand? It's only fair use if you are clueless, or if you are trying REALLY hard to extend the meaning of fair use to areas where is doesn't apply.
It's really cute when you pretend to understand fair use. You're wrong on nearly every point by the way. The key factor in a fair use analysis is the effect on the market. Here it's pretty clear that there's no negative effect. Separately, the amount of use was so small. It would be surprising if anyone claimed this wasn't fair use. Whether or not the use is educational or a parody is basically meaningless.
But, do keep trying. It amuses lots of people who actually know this stuff.
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Not sure about that. More importantly, how would you go about showing that there is nor negative effect? Seems to be on par with trying to explain losses due to piracy, no?
"Separately, the amount of use was so small."
Since the courts have already determined that the small use of a sample is still infringement, the length of use may not be a sole determining factor. That the entire piece hinges on the use of the copyright material (otherwise it's not "funny") might lead one to consider that the length in time isn't as important as the sample's importance to the piece.
"The key factor in a fair use analysis is the effect on the market"
No, that is only ONE factor in determining fair use. Nice of you to misrepresent things.
Mike, I thought you had promised not to be an arrogant prick. Why keep it up?
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Each instance or case of alleged infringement is different so while you're correct on past rulings should this one ever hit the courts it's still not a certainty what the court would find. As you say, in your sneering way, one has to take the artistic intention and use into consideration. Whether or not you find it funny is immaterial.
I'm sure Mike will stop being an "arrogant prick" the moment you cease being a complete waste of space. In your case it's well night impossible to stop being an "arrogant prick" when you consider anyone disagreeing with your world view of being one.
At least in posting this you've increased your billable time to Sony. I hope they pay trolls well.
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More and more, you become an idiot in my books. Do you honestly think I work for them (or anyone else) as a paid troll? Are you that desperate to try to discredit me and mock my opinions that you cannot accept them at face value?
Mike is being a prick because he doesn't like to get called out on his wide ranging "it should be fair use" type posts that are so full of it, and he knows it. Fair use is fairly narrow, and Mike knows it. Yet, he is more than willing to be a prick about it when called out.
As for the videos, considering that Mr Kardynal has his own section on youtube, I would suspect he is doing this not just for fun, but as a commercial venture - or certainly at least for promoting his "brand".
" As you say, in your sneering way, one has to take the artistic intention and use into consideration. Whether or not you find it funny is immaterial."
it's not if I find it funny - it's that the "funny" is in the clips being there. Without the copyright content, the bit is either lame or totally meaningless. It's not me calling it funny or not, it's just a comment on the involvement of the copyright clips and the whole joke of the video.
My entire point, which Mike hates, is that while he is saying "It's difficult to see how this isn't fair use" - it's pretty easy actually to see ways that it could very likely not be fair use. To make it sound like this is a normal fair use claim is to distort the reality of precedent setting cases in the realm of sampling.
Should it be TOLERATED use? Perhaps. That is a different story.
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Courts do this all the time. Read some case law.
Since the courts have already determined that the small use of a sample is still infringement
*bzzt*. The case you're referring to didn't consider fair use -- only de minimis. So, um, you're displaying your utter cluelessness again.
No, that is only ONE factor in determining fair use. Nice of you to misrepresent things.
But the courts again have said it is the *key* one of the factors. Nice of you to again display that you're an ignorant fool.
Seriously. Stop this. You look totally clueless. This isn't me being arrogant. This is me saving you from making a total ass of yourself again. But, as per usual, you can't resist proving yourself ignorant, so carry on.
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I have seen a few cases where the 4th factor weighed heavily in a decision, but in no instance have I ever seen it referred to as the "key factor", and certaily never in a case decided by the Supreme Court.
Words count, and your choice of words here are a bit off the mark.
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Really?
"The Court correctly notes that the effect on the market "is undoubtedly the single most important element of fair use."" -- Supreme Court.
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While several subordinate courts have "jumped on it" in an almost Pavlovian manner, this statenebt was, in the words of Bill Patry, "Fortunately, in Campbell, the Supreme Court quietly jettisoned Harper & Row on this point, holding that the fourth factor "no less than the other three, may be addressed only through a sensitive balancing of interests." 510 U.S. at 591."
Make no mistake, the fourth factor is certainly important, but it is merely one of the several factors articulated in the Fair Use provision of our copyright law, and it is the totality of these factors considered as a whole from which a court is to decide if a particular use is fair or not.
In view of this I believe it is inaccurate to say that in this instance the use is clearly fair. Please understand I am not saying that the use is unfair, but only that focusing on the fourth fair use factor misses the point being made in Campbell.
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BTW, and importantly, the four factors enumerated in the statute must each be considered, but courts are free to consider additional factors in light of the cases before them.
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You were wrong. Yet you fail to admit that. I wonder why...
There are other cases as well that have made the same point. It's pretty well established that while the 4 factors (and more) will be considered, the one that most frequently gets the most weight is the 4th factor.
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The same can be said of your "key" statement, since it was cast aside by the Supreme Court about 17 years ago.
BTW, perhaps you overlooked my comment at 70 where I attempted to clarify my comment at 43.
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http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=510&invol=569
htt p://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=471&invol=539#566
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If a major collapse occurs across a given copyright affected industry (with care to be certain you include every single business model), return the length of the term to what it was in the year preceding this collapse for that particular industry.
Instead of just declaring one way or the other, let's sound out the depths.
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Thus the only ethical reform to copyright that doesn't actually abolish it is to exempt human beings from infringement.
Even so, you'll just end up with wealthy individuals and corporations suing corporations - much like the complete farce that occurs with patents. Nevertheless, these privileges even when applicable only to corporations are still thermodynamically ridiculous (except to lawyers).
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Why Does It Have To Be YouTube?
Or, failing that, put up his videos on another service? After all, it�s just as easy to post a link to one as to another.
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Re: Why Does It Have To Be YouTube?
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Re: Why Does It Have To Be YouTube?
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Re:
(and explains the *AA's and their ilk's IP philosophy)
http://www.theclassictoons.com/6/ali-baba-bunny/
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Elite vs Non-Elite
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Three Strikes Rule
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if he is soooo creative, let him create something without stealing other peoples work to make his own little "funny" videos
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Re:
You really don't have a clue do you?
Voted you funny, because while it's wrong to laugh at idiots, you sometimes can't help yourself
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Re:
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Re: Re:
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Copyright
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You never graduated from high school, did you?
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See boycottsony.org for why we launched the boycott.
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steve
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I like his videos, but if he wants to be paid for them he has to make the video. I think all "fair use" is bs and causes people to remain unoriginal.
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copyright
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youtube
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Every creator breaches copyright
But now copyright is so overreach that even derivative works are outlawed. Knowing how creativity works, you realize how ridiculous this is.
Composers such as beethoven actively encouraged their students to copy and recreate their masters pieces. Creativity works in this way. You copy, recreate (derivative work) and learn. Or you take in the world around you (copy), recreate (derivative work) and gain experience for your next project.
So effectively copyright makes every creator a criminal, since no one creates in a vacuum. 2 people can paint a photo, 1 artist paints realism, one paints abstract. They both paint a copyrighted photo. The first artist gets prosecuted for copyright infringement but the 2nd is left alone. Why? Because you can tell one comes from the photo? You're just penalizing someone for their person creativity.
If you create something and put it out into the world, you cannot stop people from taking that in and recreating with it, no matter how that is done - whether its youtube, music or anything. I am more of a performer than a composer - does that mean my creativity has to be stifled because my creativity centres around how I play an instrument? Copyright now stifles creativity and has done for a long time. The law needs to be rewritten. All these people breaking the law - why? Its because as a species we need to create. You cannot stop that, even with the threat of years in prison people have a need to create from inspiration around them. That is what needs to be protected.
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دوربین مداربسته
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