Web Sheriff Abuses DMCA In Weak Attempt To Hide Info Under UK High Court Injunction, Fails Miserably

Sony Thinks It Can Charge An 'Administrative Fee' For Fair Use

from the not-how-it-works dept

Tue, May 24th 2016 9:38am — Mike Masnick

Mitch Stoltz, over at EFF, has been writing about a ridiculous situation in which Sony Music has been using ContentID to take down fair use videos -- and then to ask for money to put them back up. As Stoltz notes, the videos in question are clearly fair use. They're videos of lectures put on by the Hudson Valley Bluegrass Association, teaching people about bluegrass music. They're hourlong lectures in a classroom setting, that do include snippets of music here and there as part of a lecture, with the music usually less than 30 seconds long.

HVBA’s use of clips from old bluegrass recordings is a clear fair use under copyright law. The clips are short, the purpose of the videos is educational, and the group does not earn money from its videos. Plus, no one is likely to forego buying the complete recordings simply because they heard a clip in the middle of an hour-long lecture.

Nonetheless, like so many others, HVBA had its videos disappear thanks to a ContentID match on some Sony music. Here's where the story gets much worse than the standard version of this story. HVBA reached out to Sony Music, asking it to release the claim, but Sony Music demanded money, saying it was an "administrative" fee.

When HVBA’s webmaster emailed Sony Music to explain that the use of music clips in the lecture videos was fair use, Sony’s representative responded that the label had “a new company policy that uses such as yours be subject to a minimum $500 license fee,” and that “if you are going to upload more videos we are going to have to follow our protocol.” Sony’s representative didn’t say that she believed the video was not a fair use. Instead, she implied that even a fair use would require payment, and that Sony would keep using YouTube’s Content ID system against HVBA until they paid up.

As the EFF post notes, this highlights (yet again) what a dangerous disaster "notice and staydown" would be. It would open up the ability for shakedowns and censorship like what happened above.

Of course, once EFF publicized the story, Sony Music quickly backed down, but not everyone will be able to have their story told by EFF.

Even worse, even in backing down, Sony Music refused to concede the point, and indicated it still believed that fair use needed to be paid use.

A Sony executive emailed HVBA to say that the company “has decided to withdraw its objection to the use of its two sound recordings” and “will waive Sony Music’s administrat[ive] fee.” That sounds like Sony was simply acting out of courtesy, when in fact the company had no right to demand a fee, by any name, for an obvious fair use. Other YouTube users with less knowledge of the law may have been convinced to pay Sony $500 or more, and provide detailed information, for uses of the music that the law makes free to all.

It does make you wonder if Sony Music has been successful in charging this $500 fair use "administrative fee" to others, in a move that would be pure copyfraud.

Either way, imagine how copyright trolls would react to this kind of situation if it were more global on the internet with a mandated notice and staydown provision. We've already written about cases where people falsely claim copyright on works to get stuff taken down on other sites, but if there's a way to not just censor with that, but also make money, you know it's going to get widely abused. Hell, we've even had a similar situation here, where a small publication in another country (which does not have a fair use regime) sent us a letter objecting to our linking and quoting them without reaching "an agreement." Giving more power to folks like that is a recipe for widespread censorship and shakedowns.

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Filed Under: administrative fee, bluegrass, contentid, copyright, fair use, fees, lessons
Companies: hudson valley bluegrass association, sony music, youtube

37 Comments

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Reader Comments

The First Word

“

New type of content removal?

Let's call this what it really is:
Notice and shakedown.

—Zengief

”

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Jason, 24 May 2016 @ 9:56am

It reminds me of dealing with customer service when I find a mistake on my bill. In the most recent example, my cable company charged me for a box they did not, in fact, actually deliver during a service call. After explaining the reality of the situation, and waiting for them to confirm it, the rep helpfully said he'd "waive that charge" on my account.

I don't know what secret training school that all these folks get sent to, but why can't they just say they've reversed or voided or whatever the charge, instead of acting like they're doing me a big favor by not charging me for something they didn't deliver? Is "we're sorry, that was charged by accident, here let me fix it for you" really that hard to say? Or are they living in terror of "admitting fault" and having me sue them for a million dollars of pain and suffering on account of my $40 overcharge?
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- John85851 (profile), 24 May 2016 @ 10:26am
  
  Re:
  I'm sure most customer service reps go through training to make sure they never say "Sorry about that, we messed up" or to admit guilt in any way. Instead, like you said, they act like they're doing the customer a favor for things like reversing fees that shouldn't have been charged in the first place.
  I wonder if this because the legal department figures that admitting guilt could leave them open to some kind of lawsuit.
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- Anonymous Coward, 24 May 2016 @ 11:35am
  
  Re:
  The secret training came from law school. Real or not, lawyers tend to fear that any statement of apology or other corrective action is an admission of liability or culpability that would cost them in a lawsuit.
  [ link to this | view in chronology ]
  - John Fenderson (profile), 25 May 2016 @ 7:34am
    
    Re: Re:
    Doesn't matter why. When customer support does this, it's little different than just flipping the bird to customers.
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Anonymous Coward, 24 May 2016 @ 9:57am

Abuse without cost
Since they have continued to file false takedown notices for never taking fair use into account, ban SONY for at least 1 year. They can't make any takedown claims, or notify anyone until they apologize for abusing the system and agree to never ignore the required fair use possibility for every notice they send in the future. By taking down clearly fair use videos, they are making a mockery of the entire legal system.
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- Anonymous Coward, 24 May 2016 @ 11:27am
  
  Re: Abuse without cost
  Problem is the DCMA doesn't allow for this. Don't follow through on the notices and you loose your safe harbor. At least that is the way I understand it to work.
  
  So if you want to destroy a company send as many claims as possible and hope they cannot respond to them all. That way if they miss one of the real claims you can take them to court.
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- Anonymous Coward, 24 May 2016 @ 12:35pm
  
  Re: Abuse without cost
  Since they have continued to file false takedown notices for never taking fair use into account
  Court rulings have required companies to consider fair use before sending DMCA takedown notices, but this was not a DMCA takedown. ContentID is a private agreement between Sony and Youtube, and only the (non-public) contract between them governs these takedowns. "Fair use" is a defense against copyright infringement, and no such infringment was alleged.
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- DigDug, 24 May 2016 @ 1:05pm
  
  Re: Abuse without cost
  No, no no.
  
  Here's how you fix "takedown abuse".
  
  1st offense - Whatever "copyright" that was incorrectly claimed as violated is immediately dumped into the public domain with absolutely no chance of ever regaining the copyright.
  
  Couple that with a 1 billion dollar fine, payable to the people that they incorrectly accused of copyright violations.
  [ link to this | view in chronology ]
Zengief, 24 May 2016 @ 10:01am

New type of content removal?
Let's call this what it really is:
Notice and shakedown.
[ link to this | view in chronology ]
- Prashanth (profile), 25 May 2016 @ 4:19am
  
  Re: New type of content removal?
  I was about to say something along the same lines: how is this not just a protection racket?
  [ link to this | view in chronology ]
David Neal, 24 May 2016 @ 10:12am

"Fair Use" is a defense against infringement, not a right
Caveat: I am not a lawyer. Any use of someone else's work makes you a target for litigation for copyright violation. "Fair Use" is a defense in this situation. Whether the use is fair is determined by a court. There is no way to predetermine a favorable judgement of fair use. You can, however, start the litigation as the "infringer," you don't have to wait for the copyright owner to sue you. Even things that seem fair have been shot down by a judge. Use other people's work at your own risk!
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- Daniel (profile), 24 May 2016 @ 10:22am
  
  Re: "Fair Use" is a defense against infringement, not a right
  It was an unsubstantial use of music clips for educational purposes, presented in a clearly educational manner; the use is obvious fair use as defined by the law itself.
  [ link to this | view in chronology ]
- Mason Wheeler (profile), 24 May 2016 @ 10:25am
  
  Re: "Fair Use" is a defense against infringement, not a right
  That's simply not true. Lawrence Lessig famously likes to say that, but he's wrong. Fair use is the rights of the public to make use of public culture; copyright is a set of temporary exceptions to those rights, carved out in the name of encouraging the further development of culture. Calling fair use "an exception to copyright" is putting the cart before the horse.
  [ link to this | view in chronology ]
- Anonymous Anonymous Coward (profile), 24 May 2016 @ 10:26am
  
  Re: "Fair Use" is a defense against infringement, not a right
  I am not a lawyer either, but I think you might have that backwards. Fair use could only be a legitimate defense if it is a right, or otherwise acceptable under current copyright law. While you may be correct that only a court can determine if a particular use is fair, there is a four step test that is supposed to be considered by a rights holder, or one that claims such. That test is not that difficult to parse.
  [ link to this | view in chronology ]
- Anonymous Coward, 24 May 2016 @ 10:28am
  
  Re: "Fair Use" is a defense against infringement, not a right
  The big publishers want to kill fair use because it makes the use of automated tools much easier. However, without fair uses, all discussion and critique of a work, along with the study of history of an art form can only exist if the copyright holders permit.
  [ link to this | view in chronology ]
  - Anonymous Coward, 24 May 2016 @ 11:39am
    
    Re: Re: "Fair Use" is a defense against infringement, not a right
    The publishers want to kill fair use so they can do exactly what they did here: make people pay for every use of their content, over and over and over again.
    [ link to this | view in chronology ]
    - limbodog (profile), 25 May 2016 @ 7:21am
      
      "Fair Use" is a defense against infringement, not a right
      I think what the OP on this comment was trying to say was that no judge will ever throw out a case because of fair use. You can use it, but you may get sued. And the ones suing you have deeper pockets than you.
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- bureau13 (profile), 24 May 2016 @ 10:32am
  
  Re: "Fair Use" is a defense against infringement, not a right
  Not even close. Fair Use is the exception to copyright that makes copyright itself work under the First Amendment, and it is absolutely a right.
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  - DerZeus, 25 May 2016 @ 8:35am
    
    Re: Re: "Fair Use" is a defense against infringement, not a right
    "it is absolutely a right"
    
    "legal doctrine"
    
    https://en.wikipedia.org/wiki/Fair_use
    
    "framework through which judgments can be determined given a legal case"
    
    https://en.wikipedia.org/wiki/Legal_doctrine
    
    Although two sentences later it tries to shoehorn in it is an "authorized right", if that were the case, copyright itself wouldn't still be a thing. Regardless, to be considered fair use, a work must be scrutinized under a four factor "balancing test".
    [ link to this | view in chronology ]
- David Neal, 24 May 2016 @ 2:47pm
  
  Re: "Fair Use" is a defense against infringement, not a right
  see: http://fairuse.stanford.edu/overview/fair-use/ for a lawyerly take on fair use. I am not saying that this example would not be considered fair use. It probably would, at large legal expense to all involved. If it were me, I would consider paying a nominal fee for permission, in which case there would be no infringement because I would have permission. Much cheaper than legal fees.
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Anonymous Coward, 24 May 2016 @ 10:19am

This suggests an important enhancement to ContentID
Given that ContentID can apparently spot short uses of "owned" material embedded in a larger work, it would be very helpful if the position data was recorded and used in the takedown. Instead of disabling the entire work, disable the sections of the work which matched the "owned" material. This should be relatively easy from a technical side, and would mitigate the damage done in situations like this where the "owned" work is a tiny portion of the overall content. It would serve the supposed purpose of "blocking access to an owned work," while allowing the unquestionably non-infringing portions of the overall work to remain available. In cases of intentional infringement, it would thoroughly cripple the infringing upload since most of the work would be matched. In cases like this, where the usage is minimal, the lecture components would remain available while waiting for someone to beat Sony into fixing the problem. The only non-technical downside I see to my proposal is that, by mitigating the damage ContentID does, it would mitigate the political will to pursue real reform.
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- Anonymous Coward, 24 May 2016 @ 10:25am
  
  Re: This suggests an important enhancement to ContentID
  The damage may not be so minor. For instance, with the lectures under discussion, many people are not familiar with music terminology or music history, and a lecture loses much of its value without the snippets to illustrate a point.
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- Quiet Lurcker, 24 May 2016 @ 11:19am
  
  Re: This suggests an important enhancement to ContentID
  Uh, no.
  
  By doing this, you may be authorizing the "rights holder" to materially affect the nature of the material. A lecture about music (as in this case) without recordings as examples (or scores, depending whether it's a class on music theory) is pretty much pointless.
  [ link to this | view in chronology ]
  - Anonymous Coward, 24 May 2016 @ 1:24pm
    
    Re: Re: This suggests an important enhancement to ContentID
    The rightsholder already materially affects the presentation when they make the entire video unavailable and it remains blocked until either they clean up their act or the uploader takes the substantial risk of filing a counternotice. If instead the video was only blanked in the sections that ContentID matched, innocent victims such as Hudson Valley Bluegrass Association would suffer less while waiting for the rightsholder to fix the mistake. I will grant that the lecture is less useful, possibly much less useful, when the copyrighted sections are missing. However, if you only wanted to watch the video for some other purpose, such as transcribing some of the lecturer's comments or reviewing a slide, having access to the parts which are unquestionably not infringing would be helpful.
    
    To be fancy, YouTube could offer a choice between having the video made unavailable or having sections of it blanked out. Uploaders who absolutely must have a perfect video can choose to be knocked offline when rightsholders go crazy.
    [ link to this | view in chronology ]
    - Anonymous Coward, 24 May 2016 @ 2:03pm
      
      Re: Re: Re: This suggests an important enhancement to ContentID
      What you suggest would open up even more abuse of contentid. such as politicians censoring quotes from their speeches, while claiming that they are not censoring free speech.
      The big problem is a legal system where that results in people only having the rights that they can afford defend through years of litigation.
      [ link to this | view in chronology ]
Anonymous Coward, 24 May 2016 @ 11:09am

Administrative Fee, I like the sound of that
Can my hosting company charge Sony an "administrative fee" for the time spent processing a bogus DMCA?

(I won't hold my breath)
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Anonymous Coward, 24 May 2016 @ 11:25am

Sounds unfair and deceptive. Someone should tip off the FTC.
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JustMe (profile), 24 May 2016 @ 12:02pm

This is why
I don't buy any of Sony's crap. No hardware, no music, no DVDs, nada. If it happens to show up on one of the movie channels I might watch it, but that isn't directly profiting Sony.
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- Anonymous Coward, 24 May 2016 @ 5:28pm
  
  Re: This is why
  Me either. I used to like Sony's hardware, now I refuse to buy it.
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That One Guy (profile), 24 May 2016 @ 12:28pm

Sleazy, but not surprising
This is simply a more blatant example of what I've noticed several maximalists say or imply over the years, that there is no fair use unless it's paid use. I've no doubt that if they had their way there would be no fair use whatsoever, if you wanted to use something, no matter how much or for what fashion you'd be required to pay for it, and pay dearly.
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- Anonymous Coward, 24 May 2016 @ 12:46pm
  
  Re: Sleazy, but not surprising
  Without fair use they would be able to regain control over what is published by refusing a license unless they were publishing it. At the same time the license fees would come out of the authors and artists royalties driving them even further into poverty.
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Anonymous Coward, 24 May 2016 @ 1:32pm

"with the music usually less than 30 seconds long."

How about you inform readers exactly how long the performances flagged were?

It kinda matters.
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- That One Guy (profile), 24 May 2016 @ 1:45pm
  
  Re:
  No, not really. Fair use doesn't have a set limit, 30 seconds or otherwise, it's possible to use an entire work and still qualify for fair use, and conversely it's been found at least once that even a very short excerpt out of a much larger work can fail to be fair use.
  
  How many seconds the clips were matter a lot less than how they were being used, and given this case involved non-profit use for educational purposes there's a pretty strong fair use argument to be made.
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- Anonymous Coward, 24 May 2016 @ 8:06pm
  
  Re:
  Everyone knows how long it took - long enough for you to get your panties in a bunch. Which isn't saying a lot since even one second of fair use makes you lot break out in hives, admittedly, but you have cried wolf so often it's very hard to care.
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- PaulT (profile), 24 May 2016 @ 11:27pm
  
  Re:
  "It kinda matters."
  
  Not really. Unless you can point to the time limit in the fair use rules, of course.
  
  But, thanks for nitpicking about a minor point rather than addressing the actual issue.
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- Anonymous Coward, 25 May 2016 @ 9:44pm
  
  Re:
  How about you inform readers exactly how long the performances flagged were?
  
  Just exactly how does it matter?
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Aaron Walkhouse (profile), 24 May 2016 @ 10:57pm

This is a criminal offense.
By demanding a licensing fee for an acknowledged fair use,
Sony has just committed one count of extortion for each one.
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