Insanity: Romney's Ad Featuring Obama Singing Al Green Shut Down Via Copyright Claim

from the seriously? dept

Tue, Jul 17th 2012 8:18am — Mike Masnick

YouTube campaign videos get pulled over bogus copyright claims with alarming regularity. And now, as we're entering silly season for the US Presidential campaign, it means we'll be seeing more high profile takedowns. Back during the 2008 campaign, the McCain campaign even sent YouTube a letter trying to explain fair use to the company (seriously), and suggesting that Presidential campaigns should get special treatment to prevent videos from being pulled down. Of course, what might be better is if the Presidential candidates spoke up about how they'd fix the "shoot first, ask question later" aspect of the DMCA takedown procedures, but no one seems willing to do that yet. Back in the 2008 primaries, Mitt Romney also had to explain fair use to Fox News, so he should be ready for this issue again.

In fact, he appears to be the first "fair use victim" this time around. Romney's campaign had posted a web video ad on YouTube that included some of the well-known footage of President Obama singing a single line of Al Green's "Let's Stay Together." Apparently, that triggered BMG to issue a takedown on the Romney ad.

This confuses me. If you look at the original footage of Obama singing, it's a grand total of 9 seconds long. If there ever were a clear-cut case of fair use -- a very brief snippet, used in a political ad -- this would be it.

One hopes that Romney, who spoke out against SOPA during the primaries, will start to realize that perhaps he should take a stronger stand in favor of digital free speech rights and against copyright excessiveness, now that he's (yet again) a victim of such things. But perhaps that's just wishful thinking.

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Filed Under: al green, barack obama, copyright, fair use, mitt romney, politics, youtube
Companies: bmg

72 Comments

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Anonymous Coward, 17 Jul 2012 @ 8:27am

Outrage fatigue
Four years ago, the McCain incident was news.

Now censoriship is just normal.
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SolkeshNaranek (profile), 17 Jul 2012 @ 8:29am

Like that's going to happen...
One hopes that Romney, who spoke out against SOPA during the primaries, will start to realize that perhaps he should take a stronger stand in favor of digital free speech rights and against copyright excessiveness

What, and cut off possible funds from Hollywood? Like that's going to happen...
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Pixelation, 17 Jul 2012 @ 8:30am

Re: Outrage fatigue
Just think of all the money Al Green lost because Romney is pirating content!
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Woot Woot, 17 Jul 2012 @ 8:33am

Penalty for perjury, etc... on DMC takedowns
Fake, misplaced and otherwise abusive DMCA takedown requests should get issuer automatically fined by a maximum of $150.000. We can imagine a six (actually 5) strike plan with the fine progressively raising to the max. Last step is to disconnect the mischievous robots or trigger happy copyright trolls from the internet entirely.
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Anonymous Coward, 17 Jul 2012 @ 8:35am

This just shows how good of a friend Obama really is with the labels.
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Nigel (profile), 17 Jul 2012 @ 8:43am

Nice
Man, he has some chops lol...

http://www.youtube.com/watch?v=y6uHR90Sq6k

Nigel
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Anonymous Coward, 17 Jul 2012 @ 8:44am

Re:
"This just shows how good of a friend Obama really is with the labels."

No, it just shows how quickly the labels will jump on anybody doing more than eight bars (the fair use limit, IIRC) in something even vaguely resembling commercial use.
If Romney could actually sing, Obama ads with him doing so would be shot down equally-quickly, boy
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MrWilson, 17 Jul 2012 @ 8:45am

Re:
This is the really sad truth.
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Howard the Duck, 17 Jul 2012 @ 8:51am

Yep
Wishful thinking
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Anonymous Coward, 17 Jul 2012 @ 8:52am

Re: Like that's going to happen...
What, and cut off possible funds from Hollywood? Like that's going to happen...

The core problem is that Romney is a stooge.

Romney throws his hat in the ring�climbs in after it�and takes a beating.

He'll make out handsomely, never worry. Oh, I don't mean looks: After a pro boxer has bashed your face in, you never quite look the same. But he'll still make out handsomely for taking the beating. Taking a fall in the ring. That's what a stooge does.
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Cory of PC (profile), 17 Jul 2012 @ 8:53am

Re: Re:
Then again, the only thing Romney would be "singing" is "America the Beautiful." I don't think he knows anything else... or does he?
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Chris-Mouse (profile), 17 Jul 2012 @ 8:55am

Re: Re:
No, it just shows how quickly the labels will jump on anybody doing more than eight bars (the fair use limit, IIRC) in something even vaguely resembling commercial use.

There is no fixed fair use limit. the only way to determine if the amount used is fair is for a court to make that determination. It is entirely possible to use all of a song and still have it considered fair use.

Of course, finding out whether or not you've guessed right is going to be expensive, especially if you've guessed wrong.
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Pixelation, 17 Jul 2012 @ 8:59am

Hmmm...
My post about censorship was censored. Too much sarcasm?
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jakerome (profile), 17 Jul 2012 @ 8:59am

Oh Daily Caller, you really are a special kind of crazy.
Preface by saying... it's a ridiculous system when a political ad is yanked for using 9 seconds of music (that's included in probably 10,000 other videos n YouTube). And whoever at BMG ordered the takedown is likely an idiot and probably a misguided Obama supporter.

But, really? Really? Here's what The Daily Caller wrote:

"But just imagine what they would be saying if Romney�s turnaround book had been published by a multinational conglomerate with ties to Nazi propaganda."
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dwg (profile), 17 Jul 2012 @ 9:01am

Re:
I'd love to see the two candidates try to differentiate themselves on this issue. Unfortunately, it would just be a question of who's "tougher on piracy," not of either of them being interested in a debate over what truly helps the economy and culture in this area.

They're both corporate shills of the highest order. Hell, at least Romney is consistent in portraying himself that way. Obama fakes populism on occasion. I vote Pirate Party.
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Anonymous Coward, 17 Jul 2012 @ 9:04am

Re: Re:
"They're both corporate shills of the highest order."

You just described both of the dominant parties. It's just different, but often overlapping corporations that they shill for.
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Anonymous Coward, 17 Jul 2012 @ 9:05am

When a politician gets bitten by a stupid law, they don't think "That's a silly law. Maybe I should work on getting that law fixed/repealed."

They think "That's a silly law. Who do I have to pay off to buy personal immunity from that law?"
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Anonymous Coward, 17 Jul 2012 @ 9:12am

Thank God that Americans are told constantly that they have ...
"Freedom of Speech". Otherwise, nobody would believe that they did.

Lets not forget that the whole country is based on the "biggest screwer wins" principle.
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Anonymous Coward, 17 Jul 2012 @ 9:13am

Re:
Where sad but true button?

WHAR
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Anonymous Coward, 17 Jul 2012 @ 9:14am

Re: Penalty for perjury, etc... on DMC takedowns
The problem is that these generally are not DMCA takedowns. Youtube has a way for content owners to request takedowns and Google will take them down. You can still send a DMCA takedown and Google will comply, but why do so when you have a way that doesn't require you comply with the law about false takedowns.
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Anonymous Coward, 17 Jul 2012 @ 9:16am

Re: Thank God that Americans are told constantly that they have ...
"biggest screwer wins"

America is a porn studio?
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RD, 17 Jul 2012 @ 9:17am

Bwahahaha
Bwahahahahaha! I can't stop laughing. I just got one phrase for you (congress/politicians):

You reap what you sow, assholes.
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RD, 17 Jul 2012 @ 9:21am

Re: Re: Penalty for perjury, etc... on DMC takedowns
"You can still send a DMCA takedown and Google will comply, but why do so when you have a way that doesn't require you comply with the law about false takedown"

With you up to this point, but WHAT law about false takedowns? There is NO repercussions for filing a false/fraudlent takedown.

NONE.

Oh its in the law, but it has NEVER been enforced, and will never, EVER be enforced unless its against an ordinary individual and not a corporation or politician.
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Mason Wheeler, 17 Jul 2012 @ 9:25am

Re: Like that's going to happen...
Umm... why would Hollywood want to fund Republicans? Aside from the occasional high-profile exception, (Lamar Smith, for example,) that doesn't seem to happen much.
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Larry, 17 Jul 2012 @ 9:25am

Re: Re: Like that's going to happen...
Not like Obama is championing all of Hollywood's "concerns" for them. Gotta keep the "campaign donations" rolling in, right?
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Anonymous Coward, 17 Jul 2012 @ 9:26am

Re: Re:
They're both corporate shills of the highest order.

The Obama administration's Intellectual Property Enforcement Coordinator, Ms. Victoria Espinel, has coordinated a $35 price fixing scheme from the Whitehouse.

In previous administrations, both Democratic and Republican, price-fixing agreements have been just as illegal as agreements to knock over a liquor store�it doesn't matter whether you actually put a bullet in the liquor store clerk while you're grabbing the cash out of the till�the agreement itself is a crime.

Yet Mr Romney doesn't look like he's going to make that $35 Whitehouse-brokered price-fixing agreement into a campaign issue.

The game is rigged. Both candidates are playing for the same team. Romney is just a stooge.
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Ninja (profile), 17 Jul 2012 @ 9:28am

But perhaps that's just wishful thinking.

Back when Obama was elected I truly believed things would change at least to some degree. Well they did. And we are now worse than we were, specially when we think about freedom of speech. The US are flirting more and more with fascism. Corporations have so much control over the politics that even Senate/Congress has issues to control what's going on behind the curtain of renewed and heightened secrecy that covers Obama administration.

Don't get me wrong, Bush was just as bad. The difference is that things were a bit more subtle with him and the ones before.
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Snipes, 17 Jul 2012 @ 9:32am

Re: Outrage fatigue
The best part of McCain being pissed off about the DMCA take down of his video is that he voted for the process, along with every other member of the senate expect Judd Gregg (who just didn't vote).

http://www.govtrack.us/congress/votes/105-1998/s137
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Anonymous Coward, 17 Jul 2012 @ 9:32am

This confuses me. If you look at the original footage of Obama singing, it's a grand total of 9 seconds long. If there ever were a clear-cut case of fair use -- a very brief snippet, used in a political ad -- this would be it.

I disagree, Pirate Mike. The argument that it's not fair use, and thus is copyright infringement, is stronger than you let on. See Henley v. DeVore, 733 F.Supp.2d 1144 (C.D. Cal. 2010) (holding that political campaign's use of copyrighted songs was not fair use).

One hopes that Romney, who spoke out against SOPA during the primaries, will start to realize that perhaps he should take a stronger stand in favor of digital free speech rights and against copyright excessiveness, now that he's (yet again) a victim of such things. But perhaps that's just wishful thinking.

Always pulling on the heartstrings of the U.S. Constitution. (I'm saluting the flag as I type this, so I'm cool.) Free speech is alive and well. Both sides can say whatever they want. They just can't use other people's property for certain things. I know you can't process this, but it is what it is. Don't blame the messenger.
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Anonymous Coward, 17 Jul 2012 @ 9:35am

Is BMG stupid?
They just gave a presidential candidate firsthand experience with how the DMCA can be abused. And it won't help them sell a single thing.

The only way this makes sense for them is if they REALLY want Obama to be elected and would therefore issue the takdown just to disrupt Romney. On the other hand, who says it has to make sense? They probably just said "oh, our music" and issued the takedown without thinking anything through at all.
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Anonymous Coward, 17 Jul 2012 @ 9:39am

"suggesting that Presidential campaigns should get special treatment to prevent videos from being pulled down."

If none of our presidential candidates plan on fixing our broken IP system and use that as part of their campaign message then they deserve to be stifled by it more than anyone else. So I do agree that they should get special treatment, they should have all of their videos indefinitely pulled and replaced after the election or at least the amount of time it took Dajaz1 to get their site back up.
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Anonymous Coward, 17 Jul 2012 @ 9:42am

Re:
flirting more and more with fascism

They (US + Fascism) have been in bed together for forty years or more. Its just that the fresh kids in DC are too puerile and have too much unmitigated self-importantance to be able to maintain a ruse.

The War on Drugs cemented fascism as a cultural heritage for Americans. Yep, its a bad bad thing dealing drugs. Yep, it was actually much worse and much more harmful to Americans to curtail anyone's legal rights.

Possession doesn't hold 1/10th the sway of precedence in US law. Yep, fascism (while it may have lost its 'edge' as a word) is exactly what we're up against here.
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arcan, 17 Jul 2012 @ 9:47am

Re:
question. can we slip in a little definition into a random law that all intellectual property is now known as imaginary property?
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John Doe, 17 Jul 2012 @ 9:47am

Highest form of censorship?
Isn't censorship of political speech the highest form of censorship? Is this not now the poster child for why we need reform?
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Almost Anonymous (profile), 17 Jul 2012 @ 9:47am

Re: Re:
I quit asking for a "Sad but true" button once I figured out that I'd feel compelled to click it about a thousand times a day. I guess Mike is just doing his part to reduce carpal tunnel syndrome.
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Anonymous Coward, 17 Jul 2012 @ 9:48am

Well... if it is actually too intelligent to join this thread, I'll cover for it..

"Pirate Mike loves Pirate Romney. Neener neener whine, nanner nanner pirate."
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Almost Anonymous (profile), 17 Jul 2012 @ 9:50am

Re: Bwahahaha
Exactly this. Voted for draconian copyright protections? Then suck it up, buttercup!
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Almost Anonymous (profile), 17 Jul 2012 @ 9:53am

Re:
Dude, 10/10, extremely impressive trolling. I literally cannot tell if you are serious.
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Anonymous Coward, 17 Jul 2012 @ 10:03am

President Obama, number one copyright infringer.

How does this work? Does he now go about arresting himself?
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Anonymous Coward, 17 Jul 2012 @ 10:08am

Re: Re:
Dude, 10/10, extremely impressive trolling. I literally cannot tell if you are serious.

Well, you should read the case he cites. I'm afraid that US District Judge, James Selna (R) (Bush W appointee) was quite serious.

Fortunately, district court opinions are not binding precedent.
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Dark Helmet (profile), 17 Jul 2012 @ 10:16am

Re:
"See Henley v. DeVore"

Uh, I did see that case as counsel instructed, and I find it's applicability extremely lacking. In that case, both instances under review included direct recordings of either the music and/or lyrics performed by Henley. That isn't the case here, where (unless we're talking about different videos), Obama is singing A Capella.

Secondly, in that case, DeVore relied on a Fair Use argument hinging on his campaign adverts being parodies, which was stupid. If he had simply said the use was used as commentary, likely they would have prevailed.

Unless I'm missing something and Romney has already claimed "parody fair use" in this case, I find your citation to be of little to no relevance and ask the court to summarily "de-sack" you as punishment....
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Anonymous Coward, 17 Jul 2012 @ 10:16am

Re:
"Free speech is alive and well."

ACTA and SOPA were negotiated mostly in secret, with details only trickling down little by little as time went on, and politicians were hell-bent in passing that legislation, no matter what, without any sort of public consultation.

Only the threat of an electronic civil war put a stop to them. I don't know about you, but, to me, this doesn't seem like free speech in action. I shouldn't have to take a knife to your throat to get my point across in a Democracy.
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Anonymous Coward, 17 Jul 2012 @ 10:18am

Re: Re: Re:
Right, it's not binding. But I think it shows that just because it's a "political ad" doesn't mean it's fair use. And the argument that it's "9 seconds long" overlooks the fact that those 9 seconds are the heart of the work. The point is, this one isn't obviously fair use. In fact, I think the argument that it's infringement is quite tenable. It certainly isn't frivolous, and I think the take down notice is likely in good faith.
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Anonymous Coward, 17 Jul 2012 @ 10:20am

Re:
"I disagree, Pirate Mike. The argument that it's not fair use, and thus is copyright infringement, is stronger than you let on. See Henley v. DeVore, 733 F.Supp.2d 1144 (C.D. Cal. 2010) (holding that political campaign's use of copyrighted songs was not fair use)."

You have a partial point, in that the court found a political satire to be infringing. However, in that case:

"Relevant to this inquiry is the fact that the Defendants have taken the entire musical composition and have changed a minimal amount of lyrics."

http://scholar.google.com/scholar_case?case=7727335254602921725&hl=en&as_sdt=2&a mp;as_vis=1&oi=scholarr

But in THIS case, it features Obama singing a single line.

I would also note that BMG has not sued Obama for his apparently unauthorized public performance, and has not taken down the video linked above of Obama singing it despite it being up since January. I'm starting to really think BMG only did this to spite Romney. If Obama gets to sing the song for free but Romney can't use the EXACT SAME clip of Obama singing it, doesn't that constitute a campaign contribution to Obama by BMG? Have they properly reported this to the FEC?
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Colin, 17 Jul 2012 @ 10:24am

Re: Re: Thank God that Americans are told constantly that they have ...
The way politicians bend over for the entertainment industry...yeah, basically.
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Anonymous Coward, 17 Jul 2012 @ 10:26am

Re: Re:
You are right that the two cases can be distinguished. The point I was using it for was that a political ad doesn't automatically equate with fair use. The analysis is obviously more nuanced than that. Reasonable arguments exist that it's not fair use, and I think the take down notice clearly reflects a reasonable position that there is infringement and not fair use.
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Anonymous Coward, 17 Jul 2012 @ 10:33am

Re: Re:
A plaintiff can choose which tortfeasors he wants to sue, though. BMG can enforce their rights against Romney and not against Obama if they choose to. I don't see how that'd be a campaign contribution.
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Dark Helmet (profile), 17 Jul 2012 @ 10:38am

Re: Re: Re:
I mean, perhaps from a broad standpoint your making the point that campaigns can infringe is fine, but this case just doesn't seem like one of them. Too short of use, not the artist's recording, clearly used for commentary....I'm just not seeing it....
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Anonymous Coward, 17 Jul 2012 @ 10:48am

Re: Highest form of censorship?
In other news, MAFIAA goes back in time to abort the poster child for reform
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Dave (profile), 17 Jul 2012 @ 11:04am

DMCA Takedowns
Actually they treat it more like the "Wild Wild West" version of "Shoot First, Shoot again, Shoot some more, and when everyone's dead, start asking questions".
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dwg (profile), 17 Jul 2012 @ 11:06am

Re: Re: Re:
+1
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dwg (profile), 17 Jul 2012 @ 11:06am

Re: Re: Re:
+1
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Anonymous Coward, 17 Jul 2012 @ 11:13am

Re:
Yes they can if that imaginary property is news or being used to point something out like in criticism, which it is allowed by law, also as I recall the bar for political speech is even higher so censoring that is definitely a no, no.

note: I feel dirty now for defending Romney who I believe is just another moron.
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dwg (profile), 17 Jul 2012 @ 11:14am

Re:
In this case, the only copyright that's been infringed is Obama's in his own recorded performance.
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Anonymous Coward, 17 Jul 2012 @ 11:16am

Re: Re: Re:
They can also ordinarily GIVE their rights away to whoever they like, but THAT would obviously be an in-kind contribution.

According to the FEC, "Anything of value given to influence a Federal election is considered a contribution." Clearly, the rights to the song have value, and taking down a political ad influences the election. The question is whether purposely allowing Obama to use it and not allowing Romney to reference Obama's use constitutes "giving" it to Obama. If I had to guess, after carefully reading the law, I would say that it would not be considered a gift. "The provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services is a contribution." But, they didn't really "provide" it so much as it was taken from them. Honestly, if it ever went to court I'm not sure how the ruling would go.

http://www.law.cornell.edu/cfr/text/11/100.52
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Anonymous Coward, 17 Jul 2012 @ 11:40am

Re: Re: Re: Re:
But now I feel like I have to add that it may well be considered a gift. Imagine if Obama "trespassed" at a banquet hall for a fundraiser and the owner just declined to press charges, but Romney tried the same thing and was arrested. I think the intent may well matter.
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Chuck Norris' Enemy (deceased) (profile), 17 Jul 2012 @ 11:41am

Re: Re: Like that's going to happen...
Take a peek at campaign contribution disclosures and you will see that the same organizations/corporations donate to both sides of the coin...can't lose that way and end up with an elected puppet nonetheless. God bless America!
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Kayla S, 17 Jul 2012 @ 11:45am

Nice to see copyright infringement put to good use for once.
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Anonymous Coward, 17 Jul 2012 @ 12:11pm

Re:
"Nice to see copyright infringement put to good use for once."

What copyright infringement are you referring to? I don't see any.
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btr1701 (profile), 17 Jul 2012 @ 12:58pm

Re: Re:
> No, it just shows how quickly the labels will jump on
> anybody doing more than eight bars (the fair
> use limit, IIRC) in something even vaguely
> resembling commercial use.

Oh, nonsense. It's Obama's buddies in Hollywood using copyright law as a way of silencing the competition for him.

One only has to look at the fact that the *only* video BMG has complained about is the one Romney's campaign made. There are dozens of *other* videos on YouTube of Obama singing that song that BMG (coincidentally, I'm sure) has no problem with. They certainly haven't issued takedowns on them. Just the Romney version.

This is just a bright line example of how copyright is being used as a censorship tool more and more every day..
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JaseP, 17 Jul 2012 @ 1:01pm

Re: He Doesn't
He doesn't go about arresting himself. He'd only do that if he was living in New Zealand.
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btr1701 (profile), 17 Jul 2012 @ 1:08pm

Re: Re: Re: Re:
> But I think it shows that just because it's a "political ad
> doesn't mean it's fair use.

And you're missing the point that whether it's fair use or not, the Romney video is the *only* video out of dozens on YouTube of Obama singing that song that BMG had a problem with. They haven't sent takedowns on any of them, nor have they complained about Obama himself originally singing that song without permission in a public venue. Yet the moment Romney puts it in an anti-Obama ad, suddenly it's copyright infringement?

Give me a break.

This is nothing but someone using copyright as a convenient way of silencing the competition and paying back political favors.
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Almost Anonymous (profile), 17 Jul 2012 @ 1:26pm

Re: Re: Re: Re:
I humbly retract my trolling comment, I can see the possible relevance of that case. Since you actually took the time to respond in a clear and rational manner, and did not tell anyone to die in a fire, I'm assuming you are not one of our usual cave dwelling denizens. Why, then, did you begin your thread with name calling? Or do you really think "Pirate Mike" is a term of endearment?
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silverscarcat (profile), 17 Jul 2012 @ 1:32pm

Re: Nice
No longer available in the United States.
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silverscarcat (profile), 17 Jul 2012 @ 1:33pm

Re: Re: Thank God that Americans are told constantly that they have ...
Then why are their virgins past the age of 18?
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silverscarcat (profile), 17 Jul 2012 @ 1:35pm

Re:
Nah, he'd just give himself a pardon.
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JMT (profile), 17 Jul 2012 @ 3:07pm

Re: Re: Re: Re:
"In fact, I think the argument that it's infringement is quite tenable. It certainly isn't frivolous, and I think the take down notice is likely in good faith."

I totally agree that this is a serious matter requiring firm action. Obama's outstanding performance of this song, even in truncated form, has obviously devastated the market for the song, and has simply crushed the original artist's... oops sorry, copyright holder's ability to ever make any more money from it, despite the remote possibility of actually increasing general awareness of it. Income streams will be slashed, legacies destroyed, children's futures jeopardised. Oh the humanity...
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Steve R. (profile), 17 Jul 2012 @ 3:08pm

The Insanity Will Get Worse
In terms of SOPA, both Obama and Romney made a temporary tactical retreat based on public outrage. It didn't change their minds. Romney has been absolutely livid concerning the "theft" by China of so-called "Intellectual Property".

Irrespective of who wins the election, I expect a re-emergence of proposals for ever "stronger" legislation to protect so-called "intellectual property".
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Anonymous Coward, 17 Jul 2012 @ 5:12pm

Re: Re: Re: Thank God that Americans are told constantly that they have ...
Good news everyone, I've invented cloning!

Now neither you nor the clone will be virgins!
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Anonymous Coward, 17 Jul 2012 @ 5:14pm

Re: Re: Re: Like that's going to happen...
I think you missed the point.

Who wins is likely to be determined by who will polarize most. Obama seemed worse to the other side than Hillary, and McCain was sane. That's why his advisers threw the Palin ball at him.

The extremism in the GoP and the polarization of Americans is very desirable to a select few, as is the ineffectualism and lip-servicism of the Dem Party.
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Dave (profile), 18 Jul 2012 @ 12:56am

Re: DMCA Takedowns
The exact quote, at 17:20 into the movie, is:

"And you West, not every situation calls for your patented approach of shoot first, shoot later, shoot some more, and when everybody's dead, try to ask a question or two."

Sounds a whole lot like Hollywood's approach, too.
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Eric, 26 Nov 2013 @ 8:56am

Mitt Romney ad and video
Hi guys, I just want to chime in and tell you all that the youtube Romney video is still very much down. Although I actually saw the (same) video up and live over at vimeo. Cheers.
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