Sad State Of Copyright: Guy Using Short Clips Of Music In Viral Videos Accused Of Infringement

from the ridiculous dept

Mon, Apr 30th 2012 3:31pm — Mike Masnick

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

121 Comments

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Zakida Paul (profile), 30 Apr 2012 @ 3:40pm

I have discovered many a song from viral videos and found out what it was, checked out more songs from the artists and bought albums as a result. I suspect a lot of others have discovered music in that way, as well. It's sad that the powers that be can't work with people like this to gain valuable publicity for an artist.
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Rekrul, 30 Apr 2012 @ 3:49pm

Sony's attitude can be summed up in three words;

"Mine! Mine! Mine!"
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Anonymous Coward, 30 Apr 2012 @ 3:49pm

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.

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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DCX2, 30 Apr 2012 @ 3:49pm

Infringement and theft
Infringement isn't theft because the owner still has access to his creation.

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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MrWilson, 30 Apr 2012 @ 3:51pm

Re:
In that case the public has experienced far more losses than even the entertainment industry's made up numbers would cover.
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DCX2, 30 Apr 2012 @ 3:54pm

Re:
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.

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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Anonymous Coward, 30 Apr 2012 @ 3:55pm

Copyright, or Copywrong?
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Anonymous Coward, 30 Apr 2012 @ 3:57pm

Re: Infringement and theft
Sony are the true pirates, in this case. ^_^
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Atkray (profile), 30 Apr 2012 @ 4:00pm

Re:
Your rights end where they interfere with mine.

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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Crosbie Fitch (profile), 30 Apr 2012 @ 4:11pm

YouTube isn't Copyright
Don't confuse YouTube's policies with copyright. That said, YouTube has probably confused its own policies with 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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Anonymous Coward, 30 Apr 2012 @ 4:15pm

"It's difficult to see how this isn't fair use"

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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Anonymous Coward, 30 Apr 2012 @ 4:18pm

This is why DMCA needs to be fixed with some new amendments, in favor of fair use obviously.
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Anonymous Coward, 30 Apr 2012 @ 4:21pm

Re:
Sure makes culture boring.
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TtfnJohn (profile), 30 Apr 2012 @ 4:23pm

Re:
Oh, I see. Infringement, though I still have my creation completely intact and whole to do with how I please, assuming I haven't had to assign my copyright to Rapacious Publishing or We're Gonna Screw You Blind Records, is somehow the same as someone breaking into my house and stealing everything in it.

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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TtfnJohn (profile), 30 Apr 2012 @ 4:32pm

Re:
But, of course, copyright was intended to enrich culture not build walls around select parts of it, right?

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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Crosbie Fitch (profile), 30 Apr 2012 @ 4:37pm

You're missing the white elephant. It's not a matter of fixing the DMCA, nor even a matter of fixing copyright. It's a matter of abolishing copyright - repealing the Statute of Anne and every enhancement and ancillary law since.
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Anonymous Coward, 30 Apr 2012 @ 4:37pm

Re: Re:
What? That's not how the law works.

Swing and miss = Assault

Swing and hit = Assault and battery.
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PRMan, 30 Apr 2012 @ 4:38pm

Re:
Time to lengthen my Sony ban... Oh, wait, it's already lifetime...
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Anonymous Coward, 30 Apr 2012 @ 4:41pm

Re: Infringement and theft
I must be missing the part where Steve Kardynal had his hard drive cleaned of videos.

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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Grey Ferret, 30 Apr 2012 @ 4:47pm

Re: Re:
How about lifetime +70 years?
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Anonymous Coward, 30 Apr 2012 @ 5:25pm

Re: Infringement and theft
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

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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Anonymous Coward, 30 Apr 2012 @ 5:27pm

Re: Re:
Ahh, one day you will understand the difference between recorded performance and your spoken words. Until then you can live in ignorance, three words at a time.
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Digitari, 30 Apr 2012 @ 5:47pm

Re:
Warner Brothers and Daffy Duck are pissed now @ SONY, they have had the copyright since the 60's
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Lawrence D'Oliveiro, 30 Apr 2012 @ 5:54pm

Why Does It Have To Be YouTube?
If his account is terminated, can�t he just open another one?

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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Digitari, 30 Apr 2012 @ 5:55pm

Re:
this is for you youngsters that missed some early culture

(and explains the *AA's and their ilk's IP philosophy)

http://www.theclassictoons.com/6/ali-baba-bunny/
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Digitari, 30 Apr 2012 @ 6:03pm

Re: Re:
sorry, 1957
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Anonymous Coward, 30 Apr 2012 @ 6:05pm

Elite vs Non-Elite
The standard technique for elite persons to get rid of inconvenient non-elite persons is to engage in false accusation against them. Sony perceives themselves as the elite persons. Steve Kardynal is the designated non-elite victim. All his uses were fair use, therefore legal, therefore the accusations are false. Isn't it funny how Sony will never be punished for engaging in false accusation, even though that itself is illegal?
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Mike Masnick (profile), 30 Apr 2012 @ 6:25pm

Re:
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.

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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Anonymous Coward, 30 Apr 2012 @ 7:22pm

Re: Re: Infringement and theft
You have no idea what creativity is.
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DC, 30 Apr 2012 @ 7:43pm

Re: Re: Re:
I like this. PRMan's children should have the right to inherit and benefit from his Sony ban.
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terry (profile), 30 Apr 2012 @ 7:44pm

Three Strikes Rule
Sony broke my three strikes rule about a dozen things like this ago. Our TV will be the last Sony produced item we buy and that includes music, movies, games and computers.
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DC, 30 Apr 2012 @ 7:47pm

Re: Re: Re:
While technically incorrect, the example is a common and cogent elucidation of the inherent conflict between the rights of two distinct entities, as well as the common understanding in the US of how the conflict is managed.
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DC, 30 Apr 2012 @ 7:49pm

Re: Re: Infringement and theft
True artists don't build on the work of others.

Is this shill trope 41, or 51, I can't remember.
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JMT (profile), 30 Apr 2012 @ 8:09pm

Re: Re: Infringement and theft
So to be clear, you're okay with Sony being a corporate bully and committing copyfraud. Nice.
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Cowardly Anonymous, 30 Apr 2012 @ 8:18pm

Re: Re: Re:
+ Swing and nothing nearby = Perfectly legal
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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Cowardly Anonymous, 30 Apr 2012 @ 8:31pm

Re: Re: Re:
Actually, the legal distinction in your sentence is entirely over performance, which is merely happening on a very small scale when someone recites a line from a movie in the character's voice. The law makes no distinction between written, spoken and recorded excepting what evidence is required to prove that the event took place.
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Anonymous Coward, 30 Apr 2012 @ 8:33pm

Re: Re:
"Here it's pretty clear that there's no negative effect"

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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TtfnJohn (profile), 30 Apr 2012 @ 8:33pm

Re: Re: Re: Infringement and theft
It's shrill trope 92 divided by the cube root of pi.
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Cowardly Anonymous, 30 Apr 2012 @ 8:37pm

Re:
Every year, take 10 years off of the term of copyright until it has been reduced to 30 years. Then start taking 5 years off of the term of copyright per year until it is reduced to 10 years. Then take 2 years off of the term of copyright per year until it is reduced to 5 years. From there, all copyrights run out at the end of that time-period (1 year per year).

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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Anonymous Coward, 30 Apr 2012 @ 8:41pm

Re: Re: Re: Infringement and theft
So to be clear, you're not okay with Sony asserting its legal rights because such rights happen to be associated with copyright law. I guess this means you would deny Sony the right to proceed in an action against this user of excerpts from its music portfolio.
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Atkray (profile), 30 Apr 2012 @ 8:52pm

Re: Re: Re: Re: Infringement and theft
I think I just broke excel trying to calculate that.
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Ed C., 30 Apr 2012 @ 8:53pm

Re: Re: Re: Re: Infringement and theft
Sure, if Sony had a legal basis for the suit, but this was a fairly basic case of fair use.
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Anonymous Coward, 30 Apr 2012 @ 8:54pm

Re: Re:
Fair use analysis is fact intensive and determined on a case by case basis. You seem inclined to predicate your comment of the 4th factor embodied in the fair use provision of copyright law, and disinclined to ascribe any significance to the 1st through 3rd, as well as any additional factors that a court may deem relevant.

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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TtfnJohn (profile), 30 Apr 2012 @ 9:05pm

Re: Re: Re:
The amount of negative effect, what little the videos may have had, is mitigated by the credits assigned to the songs and links to where to get them from licensed vendors.

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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Anonymous Coward, 30 Apr 2012 @ 10:23pm

Re: Re: Re: Re: Re: Infringement and theft
You forget, the shills are against Fair Use.
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Anonymous Coward, 30 Apr 2012 @ 10:51pm

Re: Re:
If people 'knew this stuff' and agreed with you, the videos would still be up right?
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Crosbie Fitch (profile), 30 Apr 2012 @ 11:10pm

Re: Re: Re: Re:
There is no inherent conflict in natural rights. Our liberty to swing our fists is naturally delimited by another's right to life and privacy. Conversely, if another is invading our privacy and threatening our life by swinging their fists at us, then swinging our fists at them in defence is no longer a matter of liberty, but of life.

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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Anonymous Coward, 30 Apr 2012 @ 11:17pm

so the guy takes others music, makes his own video with the music he has no rights to use nad others defend this

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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Crosbie Fitch (profile), 30 Apr 2012 @ 11:27pm

Re: Re:
Like all folk who think the biggest problem with copyright is its term, it's not. It's the fact that it exists and is a clear and present danger to society - that can intimidate, fine, bankrupt, imprison, and extradite fundamentally innocent people. That should stop today, not even next year.

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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Anonymous Coward, 30 Apr 2012 @ 11:41pm

Re: Re: Re: Re:
"At least in posting this you've increased your billable time to Sony. I hope they pay trolls well."

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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Watchit (profile), 30 Apr 2012 @ 11:58pm

Re: Re: Re: Re: Re: Re: Infringement and theft
You forget some people come here and argue the contrary just for the sake of argument.
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G Thompson (profile), 1 May 2012 @ 12:20am

Re:
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.

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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G Thompson (profile), 1 May 2012 @ 12:27am

Re: Re: Re:
They are both still Trespass of person and in some countries Assault is Assault whether there is physical altercation or just the reasonable threat of physical altercation.
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G Thompson (profile), 1 May 2012 @ 12:34am

Re: Re: Re: Re: Infringement and theft
Oh I'm pretty damn positive that after 1yr of having this being accessible worldwide, Sony not doing their due dilligence, and if you could show that it is absolutely fair use and that the reasonable person (including copyright holders) would expect it to be fair use, then there is a good case against Sony based on Tortious Interference (both business and contract in this instance)
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G Thompson (profile), 1 May 2012 @ 12:44am

Re: YouTube isn't Copyright
It also doesn't help that with Statutory damages in the USA the copyright license holder has more of an incentive than anywhere else to go after organisations that actually allow them to recoup monies instead of just getting psychological "wins" like Jamie Thomas etc.

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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Mike Masnick (profile), 1 May 2012 @ 1:15am

Re: Re: Re:
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?

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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Crosbie Fitch (profile), 1 May 2012 @ 1:19am

Re: Re: YouTube isn't Copyright
Sure, copyright is ever more draconian, but don't confuse its minimal impact upon individuals of the 18th century (whose communications facilities were voice and, for the elite, writing) with what its impact would be upon individuals in the 21st (laser printers, etc.).

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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Mike Masnick (profile), 1 May 2012 @ 1:19am

Re: Re: Re:
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.

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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Anonymous Coward, 1 May 2012 @ 1:21am

Re:
HAHAHAHAHAHAHAHAHAHAHAHAHA
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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Anonymous Coward, 1 May 2012 @ 4:10am

since when has Sony been anything except an ARSEHOLE of a company?
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Jewell, 1 May 2012 @ 5:04am

Copyright
It is disturbing to hear this happened to him. He should understand, this action taken by Sony is a Power Play. He is commanding an audience larger then them and making MONEY. It is not about copyright. They don't want a single person to command an audience and make revenue from their music catalog when they are struggling to earn a profit. This is how big business reels in on lost earnings. If he reads this comment know this. You can take a million dollars from a smart man and he will earn it back. You can give a poor, uneducated man a million dollars and he will loose it and not recoup. This young man is smart and creative, he can rebuild. So lick your wounds and start finding your next big show. You have the audience. Show Sony you will NOT be beaten down. Peace
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Niall (profile), 1 May 2012 @ 5:04am

Re:
So what do I get for my 'loss' at having my rights to copy violated?
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Niall (profile), 1 May 2012 @ 5:07am

Re: Re: Infringement and theft
When he makes a viral video, it has negligible, if any, impact on Sony's ownership of the videos, let alone their ability to distribute.

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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Niall (profile), 1 May 2012 @ 5:13am

Re: Re: Infringement and theft
Well then, Sony's artists have to be 'creative' and stop using the same notes as other people have been using - after all, if they've been in use for millenia, they're hardly original!
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Anonymous Coward, 1 May 2012 @ 5:19am

Re: Re: Re: Re:
Do you have the case cite?
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Niall (profile), 1 May 2012 @ 5:26am

Re: Re: Re: Re: Re:
You might as well work for them, because they're the only ones who are going to appreciate your efforts. If you're doing this on your own dime, then that's your 'loss'.
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Niall (profile), 1 May 2012 @ 5:33am

Re: Why Does It Have To Be YouTube?
You inevitably lose some people in the transition. And why should he suffer so disproportionately when he is actually doing 'free' advertising for Sony?
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Lawrence D'Oliveiro, 1 May 2012 @ 5:38am

Re: Why Does It Have To Be YouTube?
It�s still better than not having his videos online at all.
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Anonymous Coward, 1 May 2012 @ 6:50am

Re: Re: Re: Re: Re:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=510&invol=569
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Anonymous Coward, 1 May 2012 @ 7:09am

Re: Re: Re: Re: Re:
I ask this because it seems likely to be derived from Justice O'Connor's majority opinion in the "Harper & Row" case concerning a soon to be published book concerning President Ford's memoirs. Her use of the word "important" in lieu of "key" is, of course, of no moment.

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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Anonymous Coward, 1 May 2012 @ 7:17am

Re: Re: Re: Re: Re: Re:
Please see my comment at 69.
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E. Zachary Knight (profile), 1 May 2012 @ 7:37am

Re: Re: Re: Re: Re:
No matter what the MPAA and RIAA say, Google is your friend. They provide all kinds of useful services such as taking a quote and finding the source of said quote:

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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E. Zachary Knight (profile), 1 May 2012 @ 7:39am

Re: Re: Re: Re: Re: Re:
So if something is the "single most important", how is that different from being key?
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Anonymous Coward, 1 May 2012 @ 7:52am

So they don't want youtube then. Idiots.
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Anonymous Coward, 1 May 2012 @ 7:54am

Re: Re: Re: Re: Re: Re: Re:
As I noted, the two words used are of no moment. What is important is the Campbell case makes clear that all factors are of equal dignity (contra to the injudicious language in Harper & Row) and must be considered as a whole before fair use can be judicially determined.

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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E. Zachary Knight (profile), 1 May 2012 @ 8:01am

Re: Re: Re: Re: Re:
Ok. I read your post and the one you reference. I understand where you are coming from. The purpose of most government officials is to enforce existing laws.

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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Toot Rue (profile), 1 May 2012 @ 8:13am

Re: Re:
Excellent - thanks!
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Crosbie Fitch (profile), 1 May 2012 @ 8:28am

Re: Re: Re: Re: Re: Re:
The notion that copyright was created for the benefit of the public is a pretext - a lie.

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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Anonymous Coward, 1 May 2012 @ 9:13am

I would like to the thousands of comments that said amateurs using short clips in videos on youtube would not get sued if SOPA passed but why bother.
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dwg (profile), 1 May 2012 @ 9:56am

Re: Re: Re: Re: Re: Infringement and theft
Statute of limitations is longer: 5 years crim, 3 years civ. So the one-year period is immaterial.

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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Trails (profile), 1 May 2012 @ 10:02am

Re: Re: Re: Re: Infringement and theft
" I guess this means you would deny Sony the right to proceed in an action against this user of excerpts from its music portfolio."

Yes, but so would fair use doctrine. We're both wacky that way.
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Robert Doyle (profile), 1 May 2012 @ 10:10am

Re:
Riiiggghhhhttt.... so if an artist doesn't want, let's say, black people to listen to their music, or gay people, or white people, then they get to decide that? Fuck that shit. You put it out there, you don't get to decide how it gets used.

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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xebikr (profile), 1 May 2012 @ 10:31am

Re: Re: Re: Re: Infringement and theft
So to be clear, you're not okay with Sony asserting its legal rights because such rights happen to be associated with copyright law. I guess this means you would deny Sony the right to proceed in an action against this user of excerpts from its music portfolio.

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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Anonymous Coward, 1 May 2012 @ 11:04am

Re:
"Having your rights violated is a loss, Mike. I'm amazed you don't understand that."

The above sentence was censored by the Freehadists here at Techdirt.
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Anonymous Coward, 1 May 2012 @ 11:05am

Re: Re:
Please point to me where you have a "right to copy".

Oh wait, there it is- just below my right to kick you in the balls repeatedly.
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Anonymous Coward, 1 May 2012 @ 11:09am

Re: Re:
Make sure to compare your crime with more heinous crimes. Makes you feel like your crime is no big deal.

This method of rationalization has been used by criminals for centuries.
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Anonymous Coward, 1 May 2012 @ 11:13am

Re: Re:
"Someone is going to speed and someone is going to run red lights.

Ergo, all traffic laws should be abolished."

You people could not be more brain dead if you tried.
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John Fenderson (profile), 1 May 2012 @ 11:16am

Re: Re: Re:
Actually, it's the maximalists who compare copyright violations with more heinous crimes. We just run with the comparison to demonstrate its falsity.
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John Fenderson (profile), 1 May 2012 @ 11:19am

Re: Re: Re:
Please point to me where you have a "right to copy".

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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Anonymous Coward, 1 May 2012 @ 11:24am

it's basic property rights. I have the basic right to do anything I want with my property, even copy it.

You never graduated from high school, did you?
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John Fenderson (profile), 1 May 2012 @ 11:35am

Re:
Why do you hate collage so much?
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G Thompson (profile), 1 May 2012 @ 11:42am

Re: Re: Re: Re: Re: Re: Infringement and theft
Ah wasn't aware that limitations was that long with civ. And I agree de minimus really doesn't come into play anymore and is luck of the draw/judge.

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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Anonymous Coward, 1 May 2012 @ 11:48am

Re: Re:
I disagree with what you say, I defend your right to say it, and I like your subtle humor...:)
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Anonymous Coward, 1 May 2012 @ 11:50am

Re: Re: Re: Re: Re: Re:
Point taken.
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JP, 1 May 2012 @ 12:09pm

Re: Re:
I'm pretty sure it was settled that it's not censorship if you can view it by clicking the "Click to show the comment" text.
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DCX2, 1 May 2012 @ 12:25pm

Re: Re: Re:
LOL, it's got nothing to do with "abolishing traffic laws". Ever had a cop let you off with a warning instead of a ticket? Now imagine that cops never let you off with a warning, and speeding 5mph over the limit on a flat, empty road at night results in millions of dollars in fines, and you've got some idea of what our current copyright system is like.

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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DCX2, 1 May 2012 @ 12:31pm

Re: Re: Infringement and theft
There's a lot of inertia with the video. There are websites that link to it. There are comments on the video. There are a number of views.

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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DCX2, 1 May 2012 @ 12:34pm

Re: Re: Infringement and theft
If his use was fair, he doesn't need their permission.

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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Mike Masnick (profile), 2 May 2012 @ 1:20am

Re: Re: Re: Re: Re: Re:
You stated that the SC had never referred to it in such a way.

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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Anonymous Coward, 2 May 2012 @ 6:07am

Re: Re: Re:
By your argument, it is also a crime if big content tries but fails to suppress people's rights.
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Nordico, 2 May 2012 @ 7:21am

Re: Re: Re: Re: Re: Re: Re:
There is nothing in the US Constitution about copyright, but people are hypnotised otherwise.

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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Anonymous Coward, 2 May 2012 @ 7:27am

Re: Re: Re:
But it's not in the spirit of free debate.
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Crosbie Fitch (profile), 2 May 2012 @ 7:49am

Re: Re: Re: Re: Re: Re: Re: Re:
4) Section 8 does not empower Congress to annul the right to copy, or thereby abridge an individual's liberty, or similarly GRANT a privilege that does so - because it ONLY empowers Congress to SECURE the author's natural exclusive right to their writings (not GRANT copyright per the Statute of Anne aka US � act 1790).

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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Anonymous Coward, 2 May 2012 @ 8:39am

Re: Re: Re: Re: Re: Re: Re:
Because I was speaking from memory, and memory is not infallible. I was also speaking from what is current law, and the Supreme Court's Acuff v. Campbell case articulates that which governs. My comment was created in haste, and, like the Supreme Court in Harper & Row v. Nation, contained injudicious language.

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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Anonymous Coward, 2 May 2012 @ 10:01am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Equally involved in the preparation and submission of proposals that led to the current provision was Pinckney of South Carolina. It is also useful to note that the original Congress under the Articles of Confederation urged the individual states to enact legislation relating to works of authorship. All but one of the states did so prior to ratification of the Constitution.
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Crosbie Fitch (profile), 2 May 2012 @ 12:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Undoubtedly, copyright was attractive to printers in many states prior to 1787. Madison himself was a fan.

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

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect � that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few... They... consequently are instruments of injustice.

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.
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dwg (profile), 2 May 2012 @ 1:51pm

Re: Re: Re: Re: Re: Re: Re: Infringement and theft
I don't mean this in an Eddie-Haskell kind of way:

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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RichardM Stallman, 6 May 2012 @ 9:09am

This is another reason to boycott SONY.
See boycottsony.org for why we launched the boycott.
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Steve fan, 11 May 2012 @ 3:57pm

Re: Zakida Paul
This will always be up at this site if others take it down
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Diana, 4 Sep 2012 @ 1:54pm

steve
Steve Portugal is with you!!!!
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Canadian Librarian, 18 Sep 2012 @ 6:38pm

Re:
At least in Canada, 3-10 second clips do not need to fall under fair dealing (a similar concept to American's fair use). Copyright only comes into effect if a significant portion of a work is reproduced. A few seconds of a song or one page of a book are, at least in Canada, examples of copying that can be done at will.
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Anonymous Coward, 21 Oct 2012 @ 8:22am

If you make a video and any part of the video or audio belongs to someone else and you haven't taken steps to use this content with the purpose of making money, you have broken copyright and deserve everything that comes with it.

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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Anonymous Coward, 25 Mar 2013 @ 7:39pm

Re: Re: Re:
Both are battery now.
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Anonymous Coward, 25 Mar 2013 @ 7:40pm

Re: Re: Re:
Both are assault now.
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Random Opinion, 28 Jun 2013 @ 4:07pm

Re: YouTube isn't Copyright
Try vimeo. That's what my friend does. They are a small film producer, and when they use personal and/or family movies with copyright music, you can find it on vimeo.
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Anonymous Coward, 3 Aug 2013 @ 12:58am

being anonymous isnt cowardice but inconspicous now sir, you who calls being anon a coward in return you are the true fool.
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David MacDonald, 1 Oct 2013 @ 11:43pm

copyright
I posted a video of a speedway meeting and Sony had Youtube take it down in Germany because ;The final countdown' was playing in the background from the speedways's PA. You could barely distinguish what it was on the video but Youtube slavishly let Sony tell them what to do. Youtube was supposed to be for the people who post the videos. I don't advocate copyright infringement but Youtube should make complainents at least prove the infringement instead of immediately complying with all ridiculous requests.
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Youtube user, 30 Apr 2015 @ 12:32pm

youtube
I'm tired of seeing the same exact video clips or songs remain on youtube after getting a copyright strike on mine. The latest one on me was from taking an existing video clip and making it a little brighter. Mine was there for about 7 years, but is down while the original posted still remains. I'm not speaking law, just common sense. The clip was from some old dark lousy vhs tape. If anything, it's a free advertisement for them.
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AdeyJ, 31 Jul 2015 @ 5:03am

The only reason he's squitting is because he makes money of the million or so people that watches his video... Sony righly think he's taking the piss using their material to make money.
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sandra, 9 Aug 2015 @ 2:23pm

Every creator breaches copyright
Copyright was originally invented so that no one could pass off something as their own work if it was created by someone else. IE, I reproduce a copy of someone elses song and sell it as my own. Very bad!
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, 2 May 2018 @ 3:44am

دوربین مداربسته
دوربین مداربسته
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