Man Who Used Facebook Live To Stream Birth Of Child Loses Bid To Sue All The News For Copyright Infringement

from the abort! dept

Fri, Feb 17th 2017 11:57am — Timothy Geigner

The saga of Facebook Live marches on, I suppose. The social media giant's bid to get everyone to live-stream content that mostly appears to be wholly uninteresting has nevertheless produced some interesting legal stories as a result. The latest of these is the conclusion of a string of lawsuits filed by a man who used Facebook Live to stream the birth of his child over copyright infringement against many, many news organizations that thought his act was newsworthy.

It was in May of 2016 that Kali Kanongataa accidentally publcly streamed his wife birthing the couple's son. He had intended for the stream to only be viewable to friends and family, but had instead made the stream viewable by pretty much everyone. Even after realizing he'd done so, Kanongataa kept the stream public, leading over 100,000 people to view the video -- including some folks in several news organizations, who used snippets of the stream in news stories about the couple's decision to stream this most intimate of moments.

And then came the lawsuits.

In September, Kanongataa filed suit (PDF) against ABC and Yahoo for showing portions of his video on Good Morning America as well as the ABC news website and a Yahoo site that hosts ABC content. He also sued COED Media Group and iHeartMedia. In October, he sued magazine publisher Rodale over a clip and screenshot used on the website for its magazine Women's Health. Last month, he sued Cox Communications.

In November, ABC lawyers filed a motion (PDF) calling their client's use of the Kanongataa clip a "textbook example of fair use." ABC used 22 seconds of a 45 minute video in order to produce a news story that would "enable viewers to understand and form an opinion about the couple's actions."

ABC's motion, embedded below, goes on to patiently explain to the court and, presumably, to Kanongataa's crack legal representation, that the entire point of the Fair Use defense was to allow small amounts of works to be used for the purpose of commentary and in news stories. Were lawsuits like this one to be victorious, news in the era of the image would come to a screeching halt. And, since the stories generated by these news organizations centered on the newsworthy nature of a couple streaming this sort of thing in the first place, use of such clips and images was perfectly in line with Fair Use usage in their reports.

The presiding judge, Lewis Kaplan, appears to have understood this correctly, having tossed the lawsuit against ABC and the other defendants.

Judge Kaplan's order shuts down Kanongataa's lawsuit against ABC, NBC, Yahoo, and COED Media Group. A lawsuit against CBS and Microsoft was dropped in November, possibly due to a settlement. The case against Rodale is still pending and is also being overseen by Judge Kaplan. Kanongataa's lawsuit against Cox was filed in a different district and remains pending in the Eastern District of New York.

This really is about as textbook a case of Fair Use as there could possibly be, leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place.

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Filed Under: copyright, facebook live, fair use, kali kanongataa, news, reporting
Companies: abc, coed media, cox, iheartmedia, rodale, yahoo

26 Comments

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Anonymous Coward, 17 Feb 2017 @ 12:03pm

Stupid People
World is full of them...

But this will be a great go to story for the idiots that just post their shit to places with TOS's that state they are giving up their rights to their personal memories as well!

Let the bitching and moaning begin!!!!
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I.T. Guy, 17 Feb 2017 @ 12:04pm

Funny thing... use "snippets" of their content and all of a sudden you get hit with copyright infringement. So some guy on YouTube posting political commentary using "snippets" gets shut down, but the conglomerates use their wealth and influence to get off the hook using fair use. That doesn't sound so fair to me.
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Roger Strong (profile), 17 Feb 2017 @ 12:22pm

"Birth Control" - You're doing it wrong; it's not about related IP.
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Mononymous Tim (profile), 17 Feb 2017 @ 12:32pm

At least he filmed the result and not what caused it. I wonder if he's learned how to use the Facebook app yet...
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Anonymous Coward, 17 Feb 2017 @ 12:33pm

Re: Stupid People
Is that what you took from this? Yup. You sure are right. Stupid people everywhere.
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Anonymous Coward, 17 Feb 2017 @ 12:53pm

Kali Kanongataa you are an idiot.
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afn29129 (profile), 17 Feb 2017 @ 12:56pm

Exhibitionism Disorder.
Exhibitionism Disorder. There seems to be quite a few people who don't understand what having a private and personal life is but feel the need to show everyone everything about themselves. Quite sick actually.
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Anonymous Coward, 17 Feb 2017 @ 1:02pm

... leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place

They were thinking: 'You can't get paid for winning the lawsuit that you don't file in the first place.'
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That Anonymous Coward (profile), 17 Feb 2017 @ 1:05pm

One could understand his confusion...
Look at the takedowns on YT.
A 5 second snippet of a song gets your media taken down.
A bird call can be claimed by a label, who then doubles down that they OWN a wild bird song.
The only people who get punished are those without the all powerful copyright.

Copyright is completely screwed up.
The cartels like to pretend Fair Use isn't a thing, and far to often they get courts to agree with them.
The problem is when a regular person tries to assert these magical rights other copyright holders have, but since they are not a corporate person they discover they have many fewer rights and leeway.

1 - He streamed it publicly and left it that way.
2 - The fair use was part of commentary on the story & his actions.
3 - We can only hope that losing these cases will keep him from creating new works so that he can try to support them by extorting cash from media outlets.
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DannyB (profile), 17 Feb 2017 @ 1:05pm

Re: Stupid People
Stupid People . . . are born every minute.
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Roger Strong (profile), 17 Feb 2017 @ 1:06pm

Re:
You miss 100% of the shots you don't take.
- John Wilkes Booth
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DannyB (profile), 17 Feb 2017 @ 1:07pm

Re: Re: Stupid People
Even if this were about a TOS, you would still have your personal memories. Sort of like how copying digital files works.
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DannyB (profile), 17 Feb 2017 @ 1:09pm

Re: FaceTwit Disorder
Facebook Disorder?

Twitter Disorder?
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Anonymous Coward, 17 Feb 2017 @ 1:15pm

Re:
It's not just about wealth. Those very same news agencies claim that using "snippets" of content is suddenly the most outrageous of infringements when Google does it. To them, it's fair use if and only if they're the ones doing it.
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Anonymous Coward, 17 Feb 2017 @ 1:31pm

Re: Re: Stupid People
I know this was not about the TOS, but the situation has a lot of parallels. And very much worth mentioning that, he still would have been in the same boat, but just that the WHOLE video instead of just snippets were shown.

Kinda like that guy who saw his Family on that billboard.
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Anonymous Coward, 17 Feb 2017 @ 1:42pm

Re: Re: Re: Stupid People
Well, now that everyone knows... are they still personal?
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Patrick, 17 Feb 2017 @ 3:34pm

Even though they argued fair-use, I wouldn't be surprised to find out that the clip ABC etc used gets claimed by ABC etc through various copyright bots like Content ID.
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Anonymous Coward, 17 Feb 2017 @ 10:07pm

Re: Re: Stupid People
Stupid People . . . are born every minute.

And many of them vote. But they are not a majority.

Anyone see a trend here? https://en.wikipedia.org/wiki/United_States_presidential_elections_in_which_the_winner_lost_th e_popular_vote#Comparative_table_of_elections
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Ryunosuke (profile), 18 Feb 2017 @ 6:48am

Maybe Shiva and Kali should get together... oh...
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John85851 (profile), 18 Feb 2017 @ 9:43am

Hold the lawyer accountable
I say this every time there's a story like this...

There are 2 options here:
1) The lawyer didn't know about Fair Use and filed a lawsuit.
2) The lawyer does know about Fair Use and files a lawsuit anyway, at the direction of the client.

The lawyer should be held responsible for either not knowing the law or ignoring the law to please a client.
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Anonymous Coward, 19 Feb 2017 @ 6:00pm

If FB gets upset over boobies, how did a birth make it through? Unless it was a birth that showed absolutely nothing, which would make it a pretty boring livestream.
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Wendy Cockcroft, 20 Feb 2017 @ 5:37am

What was the legal team thinking?
This really is about as textbook a case of Fair Use as there could possibly be, leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place.

It's my property and I'll cash in if I want to, Cash in if I want to, Cash in if I want to, You would cash in if it happened to you!

Here's hoping I don't get dinged for infringement since parody is deemed fair use.
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Wendy Cockcroft, 20 Feb 2017 @ 5:40am

Re:
Shush! I hear the footsteps of Charles Harder galloping forth, his nose twitching as he sniffs for cash.
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whooweeee, 20 Feb 2017 @ 4:43pm

Really?
Ummmm the obvious answer is what the legal teams thought was a quick buck. Found out that it wasn't gonna be
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Anonymous Coward, 21 Feb 2017 @ 7:23am

Re: Re: Re: Stupid People
Yet if you look on a map by counties and not states, it's a sea of red other then the blue in some big city's.
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Anonymous Coward, 21 Feb 2017 @ 7:26am

If you're dumb enough to put your private life on Social Media like this, especially open to everyone. You've given up your personal rights to that Data!!!

There's any number of things he could have done to protect the Data yet only give access to those he wanted to and all having nothing to do with Facebook. Wake up people, the Internet is not just Facebook like so many younger people think it is.
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