Dan Bull's 'Death To ACTA' Video Silenced After Claim From Rapper Who Used The Same Sample

from the wait,-what-now? dept

Mon, Apr 27th 2015 5:47am — Mike Masnick

Back in 2010 we wrote about rapper Dan Bull's excellent "Death to ACTA" song and video, which is a parody of Jay-Z's "Death of Autotune." In 2011, we further wrote about the MP3 of that song (which Bull distributes willingly on file sharing platforms) being taken down from Mediafire due to a questionable takedown request. Now, years later (well after ACTA is pretty much long dead), Dan's discovered that his video on YouTube was just silenced due to copyright claims.

He wondered what it was about and discovered two claims on the video -- one being ridiculous, with the other being merely questionable.

The ridiculous one is the claim about Bigg Brass's song, "Death of Fake Rapperz". That one, like Dan's, uses the backing track from Jay-Z's "Death of Autotune." The actual track that Jay-Z sampled is "In the Space" by Janko Nilovic and Dave Sarkys. It's likely that Jay-Z licensed that track (though he's run into legal trouble at times for failing to license some tracks). If anyone would have a claim over Bull's track then, it would likely be those guys. Here, it appears that Bigg Brass is working with the big digital distributor, The Orchard, who didn't even bother to figure out that Bigg Brass was using a sample of his own and just went hog wild stupidly going after others' music. The Universal Music Group claim is slightly more reasonable, but only slightly. Again, the actual music is not Jay-Z's but Nilovic's and Sarkys' and they don't appear to be the ones complaining.

At the same time Jay-Z has been quite public about his support for artists remixing his tracks into other songs saying that he's "honored" when it's done. It may be that Jay-Z doesn't hold the copyright for DoA, but even so... it seems like a pretty weak claim to go after Dan Bull. And, of course, you can find a ton of other videos that use the same backing track for their own songs. Here's one. And another. And another. And another. And another. And another. And another. And another. And there are a lot more. I'm just getting tired of cutting and pasting.

And none of those other ones are silenced.

Just Dan's. It almost makes you wonder if Universal Music has... a political reason for trying to silence Dan's songs, such as the fact that it mocks an international agreement that the recording industry was highly supportive of. And they say copyright isn't used to censor free speech...

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Filed Under: acta, bigg brass, contentid, dan bull, death of autotune, fair use, jay-z, samples, videos, youtube
Companies: youtube

22 Comments

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Anonymous Coward, 27 Apr 2015 @ 6:08am

DMCA notices for poltiical reasons should result int he utter loss of acess to DMCA tools. In addition, a $5m fine should be imposed on UMG for utter hypcrisy and twisting the law for political ends.
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Michael, 27 Apr 2015 @ 6:24am

So a 5 year old YouTube video that pretty much everyone has forgotten about is back in the news because someone is trying to silence it.

Apparently Dan's marketing strategy is working!
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Anonymous Coward, 27 Apr 2015 @ 6:33am

Response to: Anonymous Coward on Apr 27th, 2015 @ 6:08am
Just use the same penalty as infringement.
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HMTKSteve, 27 Apr 2015 @ 6:35am

Parody
If the song is a parody doesn't it fall under Fair Use? Perhaps YouTube could institute a parody flag into its system so that when a song is marked with a DMCA takedown the reviewer on the YouTube side can flag the video as a parody (and fair use) so future DMCA attempts are given a higher burden of proof rather than automatic blocking? Or would this run afoul of the Safe Harbor rules?
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Ninja (profile), 27 Apr 2015 @ 7:11am

Re:
Streisand Marketing and Publicity at your service.
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Ninja (profile), 27 Apr 2015 @ 7:19am

Re: Parody
If the system was balanced and the DMCA wasn't broken the takedown notice would me sent to the account owner (Dan) and he would be given some time to counter said notice with the option to go for a short route marking it as a parody or anything that makes sense. The copyright holder would then have another deadline set to resend the notice or let it go. If the holder chooses to re-send the dmca (manual process, no automation allowed) then Google could (COULD) send the claim to a HUMAN (do they exist there?) to double check if it's really a parody or something and then choose to forward or not. If the notice is forwarded then the account owner can still claim it is a parody which would take the thing back to the hands of the copyright holder and the only option would be to go to the courts. If Google refuses to forward the notice for the second time the copyright holder could still go for a lawsuit. Because that's where fair use should be decided and the deletion authorized or not.
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Anonymous Anonymous Coward, 27 Apr 2015 @ 8:00am

Re: Re: Parody
As an IP lawyer recently explained to us fair use is an affirmative defense. That means in order to assert fair use one must get sued and absorb all the attendant costs with being sued in order to make that defense.

Seems bassackwards to me.

Maybe, just maybe we could get someone to make a change in the law whereby the one suing for infringement must include an analysis of the four fair use tests in their suit and expect sanctions if their analysis is weak or non-existent, along with a summary judgement against, with prejudice. That just might stop some from filing the suit in the first place.

With a change in the law like that, it would be easier to adjust the DMCA to allow for fair use.
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Anonymous Coward, 27 Apr 2015 @ 8:07am

Re: Re: Re: Parody
Fair use is a right, but that does not mean it cannot be challenged in court. The problem is that many people cannot afford to defend their fair use rights in court, and the legacy copyright industry uses this to get their way.
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Anonymous Coward, 27 Apr 2015 @ 8:08am

Re: Parody
The way the law is currently written, DMCA attempts don't really require a burden of proof at all. The question would be whether Google believes the takedown notice is legitimate. Once Google gets the notice, they have to remove the material claimed to infringe and if they don't, they'll lose Safe Harbor if a lawsuit actually happens.

Bull could counter-claim, which means that Google would need to restore the blocked material unless an infringement lawsuit was filed by the claimant, but Bull may not want to risk getting drawn into an expensive legal battle.

That said, a DMCA notice has to come from the copyright owner or their authorized agent. If Nilovic and Sarky (or their representative) didn't send the notice, then whoever did has committed perjury and is materially misrepresenting under 512(f), though that provision doesn't really seem to have teeth.
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Anonymous Coward, 27 Apr 2015 @ 8:22am

has Dan submitted an appeal?
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Anonymous Anonymous Coward, 27 Apr 2015 @ 8:30am

Re: Re: Re: Re: Parody

"Fair use is a right"

Right, but it appears the only way one can assert it if a complaint is made, is as a defense once one is sued, and it takes getting sued to be able to make that defense. At a very steep price.
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Anonymous Coward, 27 Apr 2015 @ 8:54am

Re: Response to: Anonymous Coward on Apr 27th, 2015 @ 6:08am
No, use a much greater base fine for abuse. Because this is an abusive behavior.
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Ninja (profile), 27 Apr 2015 @ 9:25am

Re: Re: Re: Parody
Yep but meanwhile there could be steps Google and the content providers can take to make the process better?
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Spaceman Spiff (profile), 27 Apr 2015 @ 9:27am

Homerisms
I think Homer Simpson owns the copyright to the term Doh! So does that mean I have to pay him a royalty every time I use it in public, something like performance rights payments?
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kallethen, 27 Apr 2015 @ 9:29am

Re: Re: Parody
The way the law is currently written, DMCA attempts don't really require a burden of proof at all. The question would be whether Google believes the takedown notice is legitimate. Once Google gets the notice, they have to remove the material claimed to infringe and if they don't, they'll lose Safe Harbor if a lawsuit actually happens.

It gets even more lopsided when you consider this was probably through the ContentID system, which is above and beyond getting into DMCA.
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PRMan, 27 Apr 2015 @ 10:04am

Re:
I believe it's Barbara Streisand's marketing plan...
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Anonymous Coward, 27 Apr 2015 @ 11:32am

Re:
He likely won't. If he submits a challenge to the request and the other party doesn't accept it means a lawsuit, which will easily bankrupt him, even if he's correct and wins the suit.

He's said this in videos about his other wrongfully taken down videos.
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Zonker, 27 Apr 2015 @ 1:12pm

Re:
Fraudulent DMCA notices should have an actual penalty under the law. I propose three strikes and you lose copyright protection over your work(s) claimed as infringed, thus releasing the work(s) to the public domain. If you are not the actual owner of the copyrighted work claimed to be infringed in a DMCA claim, instead you should pay the statutory maximum fine for infringement (as you are technically claiming the owner's copyrighted work as your own for profit).
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Bergman (profile), 27 Apr 2015 @ 8:33pm

Re:
Small potatoes. A false DMCA claim should result in the copyright holder losing the copyright to the work that is the subject of the false DMCA claim.

$5 million is pocket change compared to what the copyright is actually worth to them.
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Anonymous Coward, 28 Apr 2015 @ 1:11am

Re: Re:
Ah, but that would be *fair*.

As those opposed to reasonable copyright reform that post here will tell you, they don't want fair laws - they want all copyright law unreasonably biased in their favour.
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Just Another Anonymous Troll, 28 Apr 2015 @ 10:32am

Re: Re:
Sir, that is overkill. It is entirely possible to believe your work is being infringed when it isn't. I wouldn't be too opposed to your work being public-domained after multiple egregiously false DMCAs. Or, y'know, we could just charge them with perjury. Automated systems should also be banned; if you make an automated system that makes a false claim then both the creator and commissioner of the system are criminally liable.
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Dave, 29 Apr 2015 @ 5:42pm

re re etc Fair Use
Although the cost of fighting lawsuits is legit and an unfortunate reason for a lot of censorship, in this case it's even simpler: YouTube is under no obligation to host your content. The first amendment (and similar legislation outside the US) only protects you from government censorship, it does NOT guarantee a platform with which to express yourself. Even if Dan fought and won in court, YouTube would also face its own lawsuits. Since that's expensive for them (exponentially more so, since they have millions of users uploading questionably copyrighted content), rather than fight for YOUR right to fair use, YouTube does the lazy and affordable thing of just deleting your shit. Whatever copyright violation there may or may not have been is no longer their problem.
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