Harry Fox Agency Claims Copyright Over Public Domain Work By Johann Strauss

from the of-course-they-would dept

Tue, Nov 6th 2012 10:02am — Mike Masnick

The Harry Fox Agency (HFA) is the main licensing agency for mechanical licenses (i.e., actual reproductions of recorded works -- which is different from things like ASCAP who handle licenses for performances). While it doesn't get into as many ridiculous copyright scrapes as others, it still has been known to insert itself where it doesn't belong at times. The latest, courtesy of BoingBoing is that HFA made a copyright claim on a YouTube recording of Thailand's Youth Orchestra (Siam Sinfonietta) playing the Radetzky March by Johann Strauss. The work is 164 years old and clearly in the public domain. Furthermore, since HFA only covers mechanical licenses, and this is a new performance, not a use of a recorded song that HFA has rights over, the whole thing is completely ridiculous. The director of the orchestra, Somtow Sucharitkul, sent a letter to HFA (and posted it to Facebook) expressing his amazement not only that HFA made the initial claim, but that it reinstated the claim after he initially disputed it:

I disputed this claim of course ... and in every case where I have disputed such a claim on youtube of ownership of a work clearly in the publc domain, the claim was released in a few hours.

I am amazed that Harry Fox Agency has reinstated the claim and that youtube now informs me that HFA may sue me or force me off youtube. The claim is patently absurd; Johann Strauss Sr. died in 1849.

Representatives of the Austrian embassy were at the concert from which the clip is taken and as this piece is practically a second Austrian national anthem, I am sure they would have objected to an improper violation against a national treasure.

Several well known music critics and artists have already written to you pointing out the absurdity of this claim as I tweeted a story about it.

I'm sure this will end in some sort of apology, but shouldn't we be concerned that we keep seeing these kinds of things happening? Copyright holders have become quite lax in doing any sort of verification before silencing content creators. It's a huge problem.

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Filed Under: copyright, johann strauss, ownership, public domain, radetzky march, somtow sucharitkul
Companies: harry fox agency

36 Comments

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Applesauce, 6 Nov 2012 @ 10:07am

Apology???
"I'm sure this will end in some sort of apology"

I'm NOT so sure.
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Lord Binky, 6 Nov 2012 @ 10:16am

Psh, can you piddly science prove he died in 1849? I think not!

Since the song is on their list they obviously hold a copyright on it, or else it wouldn't be on the list.
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Anonymous Coward, 6 Nov 2012 @ 10:17am

Abuses of Copyright are so common that they are no longer newsworthy, IMHO.

How does the saying go? Ten deaths are a tragedy, but 100.000 are just a statistic? Something like that.
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That One Guy (profile), 6 Nov 2012 @ 10:21am

There really needs to be a penalty somewhere...
Making a mistaken claim about a song once is understandable, somewhat, but when you get smacked down for a blatantly obviously incorrect(on several levels at that) claim, and then proceed to double down and insist that that you were right the first time, and send out the threats because of it...

I have to wonder if they even had a real person look over the counter-notice, or if it was just a bot that filed the counter-counter claim. Perhaps captchas should be part of the process of these takedown/ownership claims, would probably cut down on these obviously wrong claims of ownership.
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Anonymous Coward, 6 Nov 2012 @ 10:26am

So...
Can we now charge HFA with perjury for willfully and knowingly claiming copyright over something that they do not have rights over?
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Anonymous Coward, 6 Nov 2012 @ 10:30am

I'm sure this will end in some sort of apology
I'm sure this will end in some sort of apology

Apparently, it does.

Take a look at the second-to-the last comment in the thread over at BoingBoing. It's got a byline of �Somtow Sucharitkul� and it's marked �11/02/2012 11:52 PM�.

Hi Somtow:

The claim was released today. We apologize for the mistaken reinstatement yesterday. Our entire staff is working remotely this week due to the continuing power outage caused by Hurricane Sandy in NYC. We hope to return to our offices on Monday.Please be aware that HFA does not sue YouTube users. We are administrators of thousands of music publishers' direct license agreements with YouTube. We only become involved in these disputes when YouTube notifies us of what they have identified as a non-compliant use one of these publishers works.While many songs fall into the public domain, arrangers frequently copyright their arrangements of these songs and register them with HFA. For example, Jimi Hendrix�s version of the Star Spangled Banner is copyrighted. It was YouTube who identified that this was LEOPOLD WENINGER�s arrangement of RADETZKY - MARSCH, OP. 228. We continue to work with YouTube to reduce these incorrect identifications.HFA

Can't vouch for authenticity, but looks legitimate to me.

Also note that this comment over at BoingBoing contains an additional followup (purportedly) from Somtow Sucharitkul.
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Michael, 6 Nov 2012 @ 10:30am

Re: So...
Good luck. Let me know how that works out.
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Michael, 6 Nov 2012 @ 10:32am

Re: I'm sure this will end in some sort of apology
"Our entire staff is working remotely this week due to the continuing power outage caused by Hurricane Sandy in NYC"

...so we have just set our Exchange server to auto-reply "Take it Down!" for all incoming messages.
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DannyB (profile), 6 Nov 2012 @ 10:36am

Re:
If it is so common, then that is evidence that the DMCA and maybe even Copyright itself are fundamentally broken.

If the dinosaurs* don't want to fundamentally change the rules of how DMCA takedown works, then they should be required to police all misuses -- just as they seem to think Google should somehow magically police all infringement. Sauce for the goose is sauce for the gander.

This is why six strikes should work both ways. If a single party can't get their DMCA notices in order, correct, and legally in proper form, and signed under real penalty of perjury, then they shouldn't be allowed to file DMCA takedown notices. They would expect no less of everyone else filing DMCA takedowns against them. Sauce for the goose is sauce for the gander.

* if they don't like that name, then I should call them what they are: Pirates
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Shadow Dragon (profile), 6 Nov 2012 @ 10:36am

Re: So...
And hope it stick.
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DannyB (profile), 6 Nov 2012 @ 10:37am

Re: Re: I'm sure this will end in some sort of apology
...so we have just set our Exchange server to auto-reply "Off With Their Heads!" for all incoming messages.
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Anonymous Coward, 6 Nov 2012 @ 10:45am

And the copyright bots strike again.
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Shadow Dragon (profile), 6 Nov 2012 @ 10:48am

In my case,I have gotten a good counter-notice forward yet,It's been a more then month since I sent one. When I sent first ones back in July,I was so livid and said things I shouldn't.
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Atkray (profile), 6 Nov 2012 @ 10:59am

Re: So...
No he can't.
All they have to do is say the honestly believed they held the copyright, shrug their shoulders and say sorry it was just a mistake.

So I guess he really can sue them but it is pointless.
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Anonymous Coward, 6 Nov 2012 @ 11:06am

A nitpick, but you may wish to clear up that the "Radetzky March" was composed by Johann Strauss Sr. (most of the works that are attributed to 'Johann Strauss', such as "The Blue Danube", were composed by his son Johann Strauss II).
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art guerrilla (profile), 6 Nov 2012 @ 11:42am

copyrights push us down the rabbit hole...
'first the beheading, then the trial ! ! !'
to paraphrase lewis...
this goes against the grain of all principles of 'fairness', and for what is -to society- a nothingburger...
these greedy bastards aren't upholding culture, they are locking it away and destroying it...

art guerrilla
aka ann archy
eof
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Ophelia Millais (profile), 6 Nov 2012 @ 12:16pm

Re: So...
The perjury clause in 17 USC 512 only covers the assertion that the sender of the infringement notice (HFA) is an authorized agent of the copyright owner (of the work they think was infringed by the clip on YouTube). Criminal charges are otherwise not an option.

Civil relief is likewise limited: 17 USC 512(f) only allows the uploader to sue for actual damages. But what economic harm did he suffer when the video was pulled from YouTube? Zero I think.
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Anonymous Coward, 6 Nov 2012 @ 12:19pm

High time they introduced a fine for wrongful copyright claims. These corporations aren't going to pay any attention to whether their claims are valid if they get away scott free when they're invalid. A hefty fine per offense would quickly turn the "spam everyone with claims and hope some stick" into a very bad idea financially.
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Jeff, 6 Nov 2012 @ 12:44pm

As far as I know...
This Harry Fox Agency is a troll company. They seem to put false claims on videos, hoping to cash in on some free money, off content that isn't by them.
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DogBreath, 6 Nov 2012 @ 1:09pm

Re: As far as I know...
Next, the Harry Fox Agency will claim it was not the music they will sue for, but the "copyright infringement" of the applause that the live performance received at the end.

Because only a "copyrighted performance" is worthy of applause.
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Bad Panda, 6 Nov 2012 @ 2:49pm

so insane
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Anonymous Coward, 6 Nov 2012 @ 3:56pm

Re: As far as I know...
Apparently, you don't know very far.
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John Fenderson (profile), 6 Nov 2012 @ 4:03pm

Re: I'm sure this will end in some sort of apology
Our entire staff is working remotely this week due to the continuing power outage caused by Hurricane Sandy in NYC.

That's shameless, using that as an excuse. If the hurricane has impacted their ability to conduct business (and I don't doubt that it did) to the extent that they can't do due diligence, the default response should not be "take it down" -- twice. It should be "make a note of it, we'll check it out properly when we can."
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G Thompson (profile), 6 Nov 2012 @ 6:11pm

Re: Re: So...
On the actual DMCA they could claim that pedantry, though they now have been sent a counter claim (under the provisions of the DMCA) and are now refusing the counter claim meaning they have stated they have now examined the counter claim, performed the due diligence of examining it (whether they have or not is actually irrelevant since it is reasonable to state they have) and now stated they are still using there 'good faith' based on original oath under the first DMCA.

That's knowing. Therefore there is a good cause for perjury against them.
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G Thompson (profile), 6 Nov 2012 @ 6:13pm

Re: Re: So...
It's now according to the article and source now gone beyond the DMCA since counter claim has occurred and rejection of said claim. And as I state above, perjury could be actionable. Interference could also be a good stick to throw at them.
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G Thompson (profile), 6 Nov 2012 @ 6:15pm

Re: Re:
But But.. that would be equitable..

Blasphemer!!!!!

;)
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zem, 6 Nov 2012 @ 6:30pm

Time for a consumer 3 strikes policy
It's time we had a new 3 strikes policy.

1st false takedown. Fair enough mistakes happen.
2nd false takedown on the same item. Warning
3rd false takedown on the same item. You have just surrended your protected work to the public domain. Forever.

If the takedown issuer is not the owner. Then the person issuing the notice does jail time. If hey try and hide behind a company, then the company goes into Chapter 7.
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MikeVx (profile), 6 Nov 2012 @ 6:36pm

Well, he can always adapt this experience into a Mallworld story...
Irritating a music director who is also a successful science-fiction writer is kind of like donning a red shirt and walking into a phaser fight.

I wondered why I hadn't heard of him for a decade or two. This has to be a lot more interesting than leaving warped messages on my answering machine. (Yes, it was really that far back the last time I spoke to him.)

I saw the name and had to DuckDuckGo it because I figured the odds of there being two of that name were rather long, and yes, it's the same guy.
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Eric, 6 Nov 2012 @ 8:39pm

"Furthermore, since HFA only covers mechanical licenses, and this is a new performance, not a use of a recorded song that HFA has rights over, the whole thing is completely ridiculous."

Not that it makes a difference as to the ridiculousness, but HFA doesn't license recordings, they license musical works for the purposes of recording them, so the fact that this is a new recording isn't actually germane. However, not all mechanical licenses have to go through HFA, so even if it were a copyrighted work and they didn't have an HFA license, HFA still wouldn't have standing to sue anyway.
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Miff (profile), 6 Nov 2012 @ 11:56pm

Like I keep saying
I'd be okay with a "strikes" system if it also extended the metaphor to include "balls".
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PaulT (profile), 7 Nov 2012 @ 12:54am

Re: I'm sure this will end in some sort of apology
In other words, excuses. "We're having a hard time so we'll just shut down as much content as we come across because it's too hard for us to do it properly. It's OK since we aren't suing anyone though". Nobody cares that you're struggling because of a storm, least of all the current working musicians whose work is being shut down by you, even if you excuse yourself by noting you're not issuing lawsuits.

I love the example of Hendrix, btw. A live arrangement played 42 years ago by an artist who died 43 years ago is the excuse for shutting down a 164 year old work - even though copyright at the time of the event (if I understand correctly) means that both works should be in the public domain. If that doesn't tell you how damaging and far reaching copyright has become, I don't know what does.
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That Anonymous Coward (profile), 7 Nov 2012 @ 3:46am

Re: Re: I'm sure this will end in some sort of apology
I'm sorry you missed the blame shift.
This isn't our fault its Google's fault.
Content ID is flawed, and we want to make it better.
See also - Bird Song claimed by morons, who doubled down and claimed to have verified it only to be slammed harder on the net, and fell back on oopsie not our fault Content ID and a sad employee who can't tell music from bird song.
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Buffalo Bill, 1 Aug 2013 @ 12:21pm

http://buffaloemploymentagency.weebly.com
People complain so much yet no one says anything about hip hop music that reuses old song
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Will, 7 Aug 2013 @ 11:23am

Re: I'm sure this will end in some sort of apology
They are so full of it. They should be banned from Youtube. They know full well they are manipulating the system. I have 3 Youtube channels and I am a Youtube partner. I have had this happen to me with this organization multiple times. And have also received ridiculous responses. One time I even had to pay my attorney to go after them because they ignored me. They are as bad as Orchard. Both entities should pay penalties for their incorrigible behavior. What they do is just as illegal as copyright infringement.
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Greg, 17 Oct 2013 @ 7:19am

I received a Copyright Notice too
Today, I received a Copyright notice from Harry Fox Agency that my own song, my own voice and my own recording I just uploaded on Youtube. It's funny because it's my own voice. How can it be mistaken as someone else. If they remove it, I will sing and record it again because no one can take my voice away from me.
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Brian Crain Fan, 7 Nov 2013 @ 9:39pm

Re: I received a Copyright Notice too
Same here and this was like my own favourite pianist's own arrangement, which sounds different from the original. They've now removed that video as well. This is like me getting a copyright infringement notice for someone doing a cover.
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