The Coming Copyright Fight Over Viral News Videos, Such As Police Shootings

from the fair-use-clarification-please dept

Tue, Aug 9th 2016 3:20am — Mike Masnick

There are two subjects we write about frequently on Techdirt that we didn't think would ever have all that much overlap: copyright and people using their mobile phones to record events in real time. This can cover a lot of stuff, but lately it's been getting extra attention in the world of police shootings and police protests. We didn't necessarily think these two kinds of stories would overlap very often, but when you've got video, you've got copyright. Last year, for example, there was a bit of a copyright dustup when the guy who shot the infamous video of Walter Scott being shot in the back by police officer Michael Slager, started demanding to get paid. As we pointed out at the time, news programs using the video were almost certainly protected by fair use.

And that's still true. But... eventually this is going to go to courts. And that's especially true because of the new group of middlemen who are racing to buy up any viral video within hours (or minutes!) of it going viral, and then trying to license it everywhere. If you follow the space, you may have heard of some of these guys: Jukin Media is the most well-known, but there are others like ViralHog, ViralNova and Newsflare. And they don't seem all that thrilled about this part of the law called fair use.

The Connecticut Law Tribune has an article talking about how ViralHog bought a viral video taken by Michael Bautista from his mobile phone during the Dallas Shootings a few weekends ago, and now lawyers are debating whether or not news programs can use such videos under fair use. The answer should be yes, but since the situation here is a bit different than in the past, no one's entirely sure.

The problem, though, is that there are no cases dealing with the monetization of viral videos that depict serious news.

"Will someone challenge them? That's to be seen," said Emily Campbell, who leads the trademark and copyright group at Dunlap Codding in Oklahoma. "Will someone challenge these groups who are monetizing viral videos?"

The big differences here as compared to in the past are twofold: first, now that everyone has a device with a camera in their pockets, we're seeing a lot more viral videos, so there are a lot more situations popping up that may lead to a legal challenge. The second, and more important, is the fact that there are these viral video licensing chop shops, which are proving that there's a monetary value to these videos, which could complicate the fair use calculation a bit (since one of the four factors is the impact on the market of the use).

The most on point case is probably a copyright case from 1968 about the famous Zapruder film of the John F. Kennedy Assassination. The backstory here is fairly long and complex*, but Time Life at one point sorta had the copyright on the film, and sued Josiah Thompson for his book Six Seconds In Dallas that used an artist's rendition of some scenes from the Zapruder film. In that case, Time Inc. v. Bernard Geis Assocs, the district court ruled that it was fair use. So that's a point for fair use, but the details are still a bit different (it was a book that used artistic renderings of the film, for one). It was also just a district court ruling... and under the 1909 Copyright Act, rather than the more modern 1976 Copyright Act that we live under today).

I still think there's a strong fair use case for news programs using mobile phone videos. But, you know this is going to go to court eventually. These viral video companies are already making noises like traditional copyright maximalists, in which they ignore fair use and pretend copyright gives them full control over the work:

ViralHog founder Ryan Bartholomew, on the other hand, says the law is clear. "Whether a video is of a funny cat or a tragic event, the videographer owns their work and is entitled to control it," he told Fortune in July. "A viral video will always be monetized by someone, and representation can ensure a video's owner reaps the benefits rather than those who steal it."

And thus... it won't be long until one of these police shooting videos, or other viral videos of a newsworthy event, ends up in court. Hopefully fair use wins out. But, as we've seen over the years, fair use can be kind of a crapshoot when it comes to how judges feel about things.

* I couldn't come up with a way to fit this directly into the story above, but in that link there's the following amazing story about how CBS almost got it hands on the Zapruder film, which would have... made for an interesting legal test case had it happened:
Before Life had acquired rights to the film, CBS News’s Dallas bureau chief, a young Dan Rather, had informed 60 Minutes executive producer Don Hewitt that “a guy named Zapruder was supposed to have film of the assassination and was going to put it up for sale.” The best approach to acquiring the film, Hewitt decided quickly, was a bit more violence. “In my desire to get a hold of what was probably the most dramatic piece of news footage ever shot,” Hewett wrote, “I told Rather to go to Zapruder’s house, sock him in the jaw, take his film to our affiliate in Dallas, copy it onto videotape, and let the CBS lawyers decide whether it could be sold or whether it was in the public domain. And then take the film back to Zapruder’s house and give it back to him. That way, the only thing they could get him for was assault because he would have returned Zapruder’s property. Rather said, ‘Great idea. I’ll do it.’ I hadn’t hung up the phone maybe ten seconds when it hit me: What in the hell did you just do? Are you out of your mind? So I called Rather back. Luckily, he was still there, and I said to him, ‘For Christ’s sake, don’t do what I just told you to. I think this day has gotten to me and thank God I caught you before you left.’ Knowing Dan to be as competitive as I am, I had the feeling that he wished he’d left before the second phone call.”

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Filed Under: copyright, fair use, journalism, news, police shootings, viral news
Companies: jukin media, viralhog

46 Comments

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That One Guy (profile), 9 Aug 2016 @ 2:26am

Win/'Win'
When a case like this makes it to court it will be either good or telling.

If it's found to be fair use due to reporting and/or commentary it will help solidify the idea that yes, reporting and/or commentary of something is fair use, even when done in a commercial fashion.

On the other hand it's not found as fair use it will act as yet another example of how screwed up the law has gotten, that one of the more obvious examples of fair use, use for news and/or commentary has been found to be less important than The Almighty Copyright.
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Yes, I know I'm commenting anonymously, 9 Aug 2016 @ 4:01am

Twist the Law
"Whether a video is of a funny cat or a tragic event, the videographer owns their work and is entitled to control it,"
First off, the work is not owned, only the copyright on it.
Secondly, the potential troll misrepresents both the limited monopoly granted by the public and the fair use exceptions to that.
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Anonymous Coward, 9 Aug 2016 @ 4:17am

It's really simple. Restore the requirement that copyright requires registration. Something that has gone viral is already past the point of copyrightability.
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Alya, 9 Aug 2016 @ 4:38am

"The big differences here as compared to in the past..."
I don't see a fundamental difference except the money involved. Now that there is more money involved lawyers are starting to drool over the thought of getting the law changed to expand copyright once again. Everything must be owned and everybody must pay and pay, don't ya know?

Abolish copyright.
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Anonymous Coward, 9 Aug 2016 @ 4:47am

Could this be another vector in the attack upon the peoples right to document and disseminate actions of their tormentors?

The police state does not like the light of day and runs to hide whenever the spotlight approaches.
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Anonymous Coward, 9 Aug 2016 @ 4:49am

https://www.youtube.com/watch?v=egRgweL12Uc
Prophetic to say the least...Thanks for the memories George.
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PaulT (profile), 9 Aug 2016 @ 5:07am

"“I told Rather to go to Zapruder’s house, sock him in the jaw, take his film to our affiliate in Dallas, copy it onto videotape, and let the CBS lawyers decide whether it could be sold or whether it was in the public domain. And then take the film back to Zapruder’s house and give it back to him. That way, the only thing they could get him for was assault because he would have returned Zapruder’s property"

Really? If you return the property you stole from someone, you can't be charged with stealing it any more? I... don't think that's how it works...
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Vidiot (profile), 9 Aug 2016 @ 5:23am

Sucks the "intellectual" out of IP
"A viral video will always be monetized by someone..."

... just like all intellectual property. What's the point of creating something unless you claim ownership and monetize?

/s/
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PaulT (profile), 9 Aug 2016 @ 5:33am

Re: Sucks the "intellectual" out of IP
Well, there's also the next part of that, which is equally ridiculous:

"and representation can ensure a video's owner reaps the benefits rather than those who steal it"

Well... most of the time the reason why something becomes viral is because there's huge platforms with millions of users that allow easy sharing of videos for free. Mainly because they can indirectly monetise the content that's shared.

So, not only *must* the content be monetised, but it should be done by the owner alone and not by the platforms that help it go viral, and thus valuable, in the first place.
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David, 9 Aug 2016 @ 5:35am

Soooo...
How long until the paparazzi taunt the police in order to get valuable footage? Calling them chicken for sitting out a gunman?

Copyright is that thing that can turn a catchy tune into millions. Contract killers kill for less. And manipulating police into action should be reasonably easy with the "everybody's out to get you" narrative and the hard caps for police IQs. And they got qualified immunity anyway, so if they choose the deadlier of several options, nobody will have to serve time.

It's just one step away from "The Running Man". And really: why shouldn't the people creating entertainment value at high risk not be entitled to profit? Give the criminals a good share, and a single mugging might yield enough to let them get an education. It would also make it a lot safer to walk down dark alleys: insufficient lighting for newsworthy coverage. Who would want to bash your head in for mediocre viewing numbers?
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Anonymous Coward, 9 Aug 2016 @ 5:37am

Re:
More like, "runs to shoot the spotlights out whenever they are switched on"
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wshuff (profile), 9 Aug 2016 @ 5:55am

Man, I want to see the video of Zapruder kicking the crap out of a young Dan Rather. That would have been gold.
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Anonymous Coward, 9 Aug 2016 @ 6:00am

Notice how money does not come into the equation until some blood sucking middleman decides that they can make money from the works of others.
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aidian, 9 Aug 2016 @ 6:02am

Another example
Another example might be the chopper photogs who shot Reginald Denny getting hit with a brick during the LA riots post Rodney King verdict. They've been busy suing news outlets for the last couple of decades every time that video pops up. A terrible example, but one very much on point to this issue.
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Peter Orlowicz (profile), 9 Aug 2016 @ 6:10am

Re:
Most theft statutes require an intent to deprive the owner of the property. Texas' current theft statute (because I can't be arsed to look up what it was in 1963) says to deprive someone of their property means to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner, to restore property only upon payment of reward or other compensation, or to dispose of property in a manner that makes recovery of the property by the owner unlikely. Assaulting someone to make a copy of a film, then returning it, could well be conversion or some other violation of law, but it's not necessarily theft.
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TheResidentSkeptic (profile), 9 Aug 2016 @ 6:15am

Back on point here...
PUBLIC servants, on PUBLIC payroll, doing PUBLIC service, out in PUBLIC...

of course it needs to be locked away and kept out of the PUBLIC domain...
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Dan (profile), 9 Aug 2016 @ 6:18am

Re:
Under the old common law, yes, that's how larceny worked. One of the elements was the intent to permanently deprive the personal property of another. If you always had the intent to return it, and did in fact return it, it wouldn't be larceny.

Many states have changed those rules by statute, so that may or may not have been the state of the law in Texas in 1963--but there was a time when it was.
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PaulT (profile), 9 Aug 2016 @ 6:27am

Re: Re:
OK, I'll have to defer to both of you. I've just never heard of "I took his property but I brought it back!" being a way of evading charges before.
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Anonymous Coward, 9 Aug 2016 @ 6:33am

Re: Re:
"to withhold property from the owner permanently"

Sorta like what happened to many home owner's during the recent fraudclosure debacle.
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Anonymous Coward, 9 Aug 2016 @ 6:37am

Re:
Well in that case all the people that commit copyright infringement if they were to give back the files that they uploaded/downloaded back to the copyright holder then those people can't be charged with copyright infringement.

I somehow doubt that the copyright holders and Hollywood would see it like this and will still demand the death sentence be given to the person that committed copyright infringement even if that person gives the files back to the copyright holder.
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Peter (profile), 9 Aug 2016 @ 6:44am

Fair use?
Commercial television and news organizations make megabucks with amateur videos they 'borrow' from youtube and other internet sources. Why should they not pay the creators a license fee? Following that logic, why can professional cameramen and photographers charge for their work?

And how can it be that they get the video free under a fair-use exception, then charge their customers for viewing it? Is it really that more creative to slam a logo on a video than to record it in the first place?
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Mason Wheeler (profile), 9 Aug 2016 @ 6:57am

Re: Re: Re:
I wouldn't imagine you'd have heard of it; how often does it happen?
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Oblate (profile), 9 Aug 2016 @ 8:25am

Just waiting for the day...
If I ever have the opportunity to film a police beating of a copyright maximalist, I will not place any copyright restrictions on it. It's the kind of thing that should be freely enjoyed by all.
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TripMN, 9 Aug 2016 @ 9:46am

Re: Re: Re: Re:
Ever heard of "Joy Riding" in a car?

Intention is to go for a ride but bring the car back so you don't get punished for Grand Theft Auto.

I've never done it. Just heard about it from some of the old-timers I knew growing up.
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John Fenderson (profile), 9 Aug 2016 @ 9:49am

Re: Re: Re: Re: Re:
I'd be willing to bet every joy-rider has tried that excuse. I've never heard of it actually working.

The law is pretty clear -- if you steal something, you're guilty of theft regardless of whether you intend to, or actually do, return whatever you stole.
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Nathan Harding, 9 Aug 2016 @ 10:18am

So a Content Producer says that I should be free to steal his words.
So I should have the right to copy this article word for word put in on my website and be able to justify it as "fair use" because the authors words are deemed newsworthy opinion?

Theft is Theft even if it is news worthy or really funny. Now commenting on a video that you have linked to is entirely fair game, but posting an entire viral video so you can steal views from one site to your site is theft.
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RD, 9 Aug 2016 @ 10:36am

Re: So a Content Producer says that I should be free to steal his words.
Techdirt doesn't enforce copyright on any Of Its articles. You ars free to use them hover youwish. It still not theft anyway, it's INFRINGEMENT, hence the use of that term in th e copyright law. Might want to look up what that means compared to theft.
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Alya, 9 Aug 2016 @ 10:46am

Re:
Really? If you return the property you stole from someone, you can't be charged with stealing it any more? I... don't think that's how it works...

Sure, rob a bank and get caught? Just offer to give the money back and all's forgiven. Oh, wait, we're not talking about CEO's, are we?
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David, 9 Aug 2016 @ 10:53am

Re: Fair use?
How is recording a video of police action with a camera phone in any way creative? Is the recording party going to direct it, tell actors to repeat a scene, arrange it, change the lighting?

It's documentary, not creative. Are people going to claim copyright on witness reports too? Those are actually nonlinear weighted and worded narrations and recollections and would be much more "copyright-worthy" than switching your camera on.

What the fsck is wrong with people that they think they are entitled to a payout for any difference they make to the world? If you stop a mugger, does that mean that you get to have half the handbag's content? Why not? It's "value" you "created" by being there at the right time and doing the right thing. Aren't you entitled to it?
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Enif, 9 Aug 2016 @ 10:54am

Re: Re:
Yeah, that's why shoplifting is perfectly legal in Texas. If you get caught, all you have to do say "I was gonna bring it back later" and they have to let you go. Works every time.
/s
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That One Guy (profile), 9 Aug 2016 @ 11:06am

Re:
I could totally see that happening. Troll company buys up the rights to the video, police department buys up 'exclusive rights' to video and demands that it be taken down wherever it's found. Just like that 'inconvenient' video is no longer up to trouble them.
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That One Guy (profile), 9 Aug 2016 @ 11:22am

Poor example
The TD staff have said repeatedly over the years that people can feel free to repost the content from this site all they want elsewhere and they've got no problem with it.

Also, get your terminology correct, it's 'copyright infringement', not 'theft'. Not only is it inaccurate I'm pretty sure you really, really wouldn't want it to be treated as theft, so don't use the word.
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orbitalinsertion (profile), 9 Aug 2016 @ 11:32am

The problem is... this is what the news organizations do, and they get away with it.

There is always someone who wants to make a buck off something intangible that involved roughly zero cost just because there is high demand. But the bigger issue here is it's the "little guy" who doesn't get to monetize their video or whatever, to the extent large organization can, and the "little guy" is the one who tends to get nailed with infringement cases or takedown notices they can't really fight.

Balance that inequality, and enshrine at least some specific basics of Fair Use so it isn't always a damn trip to court, and a lot of this will stop.

For the big whiners, they can offer some organization a period of exclusive scoop time before they post it to the world, but those organizations like to have exclusive rights and then yell infringement if anyone else uses the clips.

So fair use or not, the system and power differential is unfair, and yeah i can see why someone might want a slice of the goodies that others, especially large organizations, have made using their (admittedly usually zero-investment) content. (Although in a lot of these cases, with police, there are levels of risk to sticking around, recording, and hoping to get away with your phone.)
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nasch (profile), 9 Aug 2016 @ 12:15pm

Re: Re:
Well in that case all the people that commit copyright infringement if they were to give back the files that they uploaded/downloaded back to the copyright holder then those people can't be charged with copyright infringement.

Except that copyright infringement isn't theft to begin with.
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Dan (profile), 9 Aug 2016 @ 12:29pm

Re: Re: Re: Re: Re: Re:
Yes, but you're assuming the conclusion. The legal definition of "steal" includes that you intend to permanently deprive the owner of his property. It's a question for the jury, just like every other element of the offense, and it's up to them to decide whether the defendant had that intent.
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Zonker, 9 Aug 2016 @ 12:49pm

Copyright restriction is the anti-viral video
ViralHog founder Ryan Bartholomew, on the other hand, says the law is clear. "Whether a video is of a funny cat or a tragic event, the videographer owns their work and is entitled to control it," he told Fortune in July. "A viral video will always be monetized by someone, and representation can ensure a video's owner reaps the benefits rather than those who steal it."
No, what makes a viral video viral is that it spreads rapidly and widely like a virus to be viewed by a large part of the population beyond anyone's control. Monetizing the video by enforcing copyright restrictions puts a swift end to the viral sharing of the video by creating a toll booth for access.

"Companies" like ViralHog are old media. Buy your competition to control your competition for profit and politics.
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That One Guy (profile), 9 Aug 2016 @ 1:05pm

Re: Copyright restriction is the anti-viral video
Perfect opportunities for schadenfreude though.

1) Person A takes video, posts it online.
2) Video spreads like wildfire, with tons of people seeing it.
3) Toll company B buys up rights to video, sends out payment demands.
4) Rather than pay video is removed.
5) What was previously widely known and shared is now replaced by something else and quickly forgotten.
6) A and B are now stuck holding the 'rights' to a video no-one cares about, all thanks to their greed and short-sightedness.
7) Everyone else gets to have a hearty laugh at A and B's expense.
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John Fenderson (profile), 9 Aug 2016 @ 1:06pm

Re: Re: Re: Re: Re: Re: Re:
That must vary from state to state, then. In my state, that is absolutely not the definition of theft. Theft is when someone:

(1) Takes, appropriates, obtains or withholds such property from an owner thereof;

(2) Commits theft of property lost, mislaid or delivered by mistake;

(3) Commits theft by extortion;

(4) Commits theft by deception; or

(5) Commits theft by receiving stolen property

There is no requirement that the deprivation be "permanent" or lengthy.
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Anonymous Coward, 9 Aug 2016 @ 1:53pm

Re: So a Content Producer says that I should be free to steal his words.
You might want to look up a few words in the dictionary before you continue to prove how stupid you are. Start with theft and infringement.
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Anonymous Coward, 9 Aug 2016 @ 2:45pm

A clear case of copyright as censorship. Fair use does exist...
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aidian, 9 Aug 2016 @ 5:39pm

Re: Fair use?
"Commercial television and news organizations make megabucks"

No, they don't. TV news operations are profitable, but they haven't made megabucks anytime this century. Lots of reasons for this, at least some of them self-inflicted, some of them because of the factors affecting TV, some because of the factors affecting news.

"amateur videos they 'borrow' from youtube and other internet sources"

For breaking news from amateur sources, youtube is a distant second to facebook, instagram and even twitter (though twitter has more professional media people on it).

In every organization I've worked for, we will attempt to contact the source and ask permission. Depending on the situation, we may offer a fee -- never huge money, $100 is about the max.

If we can't contact the source we may use some of the video on the grounds of fair use. If you're going to 'fair use' anything you've got to be very careful -- there's no video worth getting your boss sued for big money -- so I never go even anywhere near the boundaries of fair use.

And the point of doing the news isn't to charge anyone -- even in situations where there's a subscription requirement it's just because the hard working journalists who spend every day trying to bring you important news are trying desperately to keep the lights on while they find ways to make news reporting self-sustaining in the new media landscape.

There's lots to criticize about news operations, especially in the MSM, but the people working in the trenches are pretty much all trying hard to do good work, so quit hating.
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Katlyn (profile), 9 Aug 2016 @ 11:24pm

Re: Re: Sucks the "intellectual" out of IP
Copyrighted videos may be shared without a licensing fee. It is those who rip and upload videos to wrongfully benefit who get in trouble, and blocking them does little to stop a good video from going viral.
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Katlyn (profile), 9 Aug 2016 @ 11:30pm

Re: Re: Copyright restriction is the anti-viral video
This isn't quite accurate. Most viral videos die out in popularity rather quickly no matter what; the vast majority of views come during a short window, and licensing companies often acquire the rights before or during this spike. Also, some videos continue to generate interest for years, bringing revenue with it. Finally, those who use a video without proper rights don't necessarily get away scott free by removing it when asked. Many habitual copyright infringers run up large liabilities that eventually are tapped by lawsuits to repair the damage done.
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Govindan, 10 Aug 2016 @ 2:33am

Viral video
No disputes over this viral video: https://www.youtube.com/watch?v=L3xIeg33Qp8
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Anonymous Coward, 10 Aug 2016 @ 6:35am

Why do they need the video? Paint me a movie with words. Why would the use of this video be more beneficial to the public than say medical aid?

Maybe they shouldn't use the video and should inform the public about imaginary property laws. Explain to us how we are paying to enforce laws to enrich the public domain and how much the public domain has expanded decade after decade.
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That One Guy (profile), 10 Aug 2016 @ 9:55am

Re: Re: Re: Copyright restriction is the anti-viral video
Most viral videos die out in popularity rather quickly no matter what; the vast majority of views come during a short window, and licensing companies often acquire the rights before or during this spike

There's a difference between people losing interest and that interest being killed off because the video has been removed thanks to some short-sighted putz demanding payment. Later vs Now, the interest would have died off later, but thanks to someone demanding money it instead died off now.

Also, some videos continue to generate interest for years, bringing revenue with it.

Not if it's removed thanks to someone demanding money, that rather quickly kills off any interest it may have generated, and any revenue that might have come from it.

Many habitual copyright infringers run up large liabilities that eventually are tapped by lawsuits to repair the damage done.

'Damage done', doing to go with a 'citation needed' there. Exactly what damage has been done that needs money to 'repair'?
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