We've seen more than a few lawsuits over the years by the entertainment industry against various sites that merely link to infringing content. The entertainment industry likes to make the claim that this is inducing infringement, but if you're just pointing to a bunch of YouTube videos, it's difficult to see how that should be considered infringement at all. In one such case, over in the UK, a site called tv-links.co.uk, after years battling this in court, was found not to have infringed on the copyrights of movie studios. The case was brought by FACT, the "Federation Against Copyright Theft," but had little evidence of any actual infringement being done by the site, who merely linked to videos found on YouTube, Veoh, DailyMotion and other sites.
FACT originally claimed that the site "facilitated" copyright infringement on the internet, despite that not being a part of UK law. Eventually, the official charges were "Conspiracy to Defraud and breaches of the Copyright Designs and Patents Act," which is quite similar to what OiNK's admin was charged with. And just like how OiNK's Alan Ellis was found not guilty, the court has sided with TV links, noting that it didn't actually infringe on anyone's copyrights directly. Of course, this still took years of having to fight it out in court and a ton of resources -- some of which were frozen by a "financial restraining order" during the case itself.
So while it's great that TV Links prevailed in the end, it does show how the decks are usually stacked again those doing perfectly legal things. If the entertainment industry does decide to sue, you're basically facing a huge, costly and painful legal battle, no matter how strong your case is. The system is weighted way too heavily in favor of the entertainment industry, such that they can bully sites they don't like into compliance in many cases, even if they're legal. It's great that TV Links was able to make it through the process, but many other sites don't even have the chance -- and that's why these kinds of lawsuits keep showing up.
After Google announced plans to no longer censor content in China, we wondered if they would do the same in other countries, like Australia, which was pushing for much greater censorship online. So it's nice to see that Google is pushing back in Australia and telling the government that it will not voluntarily censor YouTube videos based on Australia's classification. YouTube already has rules in place to block certain types of videos, but it feels that Australia's rules go too far in blocking what could just be political speech that the government disagrees with. What's really amazing (and worrisome, if you're Australian) is that the government referred to the rather oppressive censorship of the internet done in China and Thailand as good examples of how Google should censor the internet in Australia.
Perhaps if you've been living under a pop culture rock for the past few years, you were unaware of the popular hobby of creating subtitled videos of an angry Hitler reacting to something going on in the world today, using a clip from the German movie Downfall. For example, here is Hitler responding to NBC's snafu with late night television programming with Jay Leno and Conan O'Brien:
"Someone sends me the links every time there's a new one," says the director, on the phone from Vienna. "I think I've seen about 145 of them! Of course, I have to put the sound down when I watch. Many times the lines are so funny, I laugh out loud, and I'm laughing about the scene that I staged myself! You couldn't get a better compliment as a director." Some of Hirschbiegel's favorites are the one where Hitler hears of Michael Jackson's death, and one in which the Fuhrer can't get Billy Elliot tickets
Of course, as director, and not producer, he probably does not hold the copyright and has no say in whether or not the clips are allowed -- but it is worth noting that he seems to quite enjoy them.
Over the last few years we've noticed a troubling trend for Italian politicians to push absolutely ridiculous anti-internet policies. Some have claimed that much of this comes from the fact that current Prime Minister Silvio Berlusconi owns a lot of the mainstream media outlets in the country, and the lack of control over the internet bothers him and his party -- which could explain why they use almost any opportunity to lash out at the internet. To make matters worse, there seems to be particular confusion over things like YouTube, leading to the ongoing lawsuit that could sentence Google execs to jailtime for not removing a video fast enough (Google took the video down within a couple hours of being alerted to it). Then there's the politician who tried to file lawsuits against thousands of YouTube commenters.
So perhaps it shouldn't come as a surprise that politicians in Italy are proposing that all web video in the country must first be authorized by the Communications Ministry (found via Slashdot). Officially, Italian officials say that they're just implementing an EU directive on how to deal with product placement, but others note that this clearly goes way beyond that, with many seeing Berlusconi trying to stomp out online video competition to his media holdings.
One of the more famous examples of abuses of the YouTube video takedown process was the case of Lenz vs. Universal Music, which involved Universal Music issuing a YouTube DMCA takedown to a woman who posted a very short clip of her baby dancing to a Prince song that was playing in the background. It was a clear case of fair use, and while after the woman filed a counternotice Universal chose not to sue, the EFF filed a lawsuit against Universal Music, saying that the DMCA notice was fraudulent, since it was such an obvious case of fair use. While Universal Music argued that since fair use is just a "defense" and not a "right" it need not consider fair use in sending a takedown, the court disagreed.
You would think, then, that any takedown notices on similar short videos of kids dancing to music would avoid a similar scenario. Copycense points us to the news that a guy has received a notice from Google of potential infringement for his short clip of his kid dancing along to what appears to be a version (not the original) of the Kool & The Gang song "Celebration." As in the Lenz case, this video is a kid dancing to somewhere around 30 seconds of a song:
The notice claims that the video contains content for which the copyright is held by record label Razor & Tie. The guy who got the takedown seems a bit confused, in that he appears to be blaming McDonald's for the mess, when it appears McDonald's had nothing at all to do with the takedown. In fact, the record label Razor & Tie may not have anything to do with it either... as I'll explain below. The song used in the video was from a CD that came with a McDonald's Happy Meal. Looking around, it appears that in April, McDonald's announced a promotion with record label Kidz Bop to issue music CDs. Razor & Tie is the parent company of Kidz Bop. The problem here is clearly not McDonald's. All it did was include the CD in Happy Meals. It's got nothing to do with the takedown, and the guy's anger at McDonald's is misplaced (though, you could make the argument -- and it's a stretch -- that McDonald's should tell its partners to avoid these sorts of ridiculous copyright claims that scare people away from buying Happy Meals).
The next assumption, then, would be that Razor & Tie is guilty of sending the takedown, but I don't think that's true. If Razor & Tie had sent a DMCA takedown, the video would be down. When Google receives a DMCA takedown, it almost always (or perhaps always) pulls down the content immediately in order to retain its DMCA safe harbors. The user would then need to file a counternotice to start the process of potentially getting the video back up. The fact that the video is up and the notice the guy received simply tells him to review the videos suggests that no DMCA takedown was sent.
Instead, the blame almost certainly lies with Google's content recognition engine/filters that the record labels pushed them to use to try to catch copyright infringement ahead of time. Now, Razor & Tie is somewhat complicit here, in that it appears to have uploaded its catalog to train Google's filters (if I remember correctly -- and correct me if I'm wrong -- Google needs the copyright holder to submit copies for its filter to work). So, Google had this particular song on file, and noticed the similarity. Google's filter algorithms don't appear to consider fair use (or, perhaps more likely, they do a bad job of it in many cases) and the guy then is sent the automated notification, even though it makes everyone -- McDonald's, Razor & Tie and Google -- look bad, though the blame from the recipient appears to be in almost reverse order of culpability.
Unfortunately, the guy who received the notice also appears to be confused concerning his own rights. He says he is going to take down the video, though he clearly has a strong fair use case in asking for the video to be left alone. It seems likely that Google would allow the video to stay up, and I highly doubt that Razor & Tie would do anything else (it would be ridiculous to try to claim that this was not fair use).
Either way, this highlights a variety of interesting things. First, despite all the publicity of the Lenz case, these types of "takedowns" (even if it's not a DMCA takedown) still happen. Second, people on the receiving end of these notices assume that there is no recourse that would allow the video to stay up. People get official sounding notices and they assume they need to jump. Third, Google's content match filter isn't particularly good on fair use issues. Fourth, when these sorts of bogus notices are sent, it reflects very poorly on a variety of companies. In this case, McDonald's is getting most of the blame, despite being almost entirely blameless (well, it did decide to put out these silly music CDs, but that's a separate issue). Even Razor & Tie may be getting misplaced blame (though it may depend on the "rules" it set for Google's filter). Amusingly, it may be Google that deserves the most blame, and it appears to be getting the least.
Still, no matter what the situation, it's simply ridiculous that a guy filming 30 seconds of his kid dancing should have to worry about any of this.
Copyright maximalists who hate the DMCA's safe harbors often claim that service providers can easily tell what content is infringing and which is not. This is, in fact, a key part of the argument made by Viacom in its lawsuit against Google over YouTube. It claims that YouTube must know that the clips are infringing and should be taken down. There's just one problem: even Viacom doesn't seem to know which clips are infringing and which are not. It turns out that, among the many YouTube clips included in the lawsuit, approximately 100 were uploaded on purpose by Viacom. Yes, you read that right:
Viacom sued Google over clips it claimed were infringing, that Viacom purposely uploaded to YouTube.
That alone should show how ridiculous Viacom's claims are in this lawsuit. There is simply no way for Google to know if clips are uploaded legitimately or not. Oddly, however, the court has now allowed Viacom to withdraw those clips, but lawyers like Eric Goldman are questioning how this isn't a Rule 11 violation for frivolous or improper litigation. But, more importantly, it demonstrates that even Viacom has no idea which clips are infringing and which are authorized. Given that, how can it possibly say that it's reasonable for Google to know?
With Vimeo recently getting sued by EMI for supposedly encouraging infringement of their music in videos, it's interesting to note that Vimeo is apparently arbitrarily and ridiculously aggressive in cutting off anyone who uses the service for any sort of "commercial" purpose (found via Shocklee). The story is quite bizarre, but apparently Vimeo has buried in its terms of service that you can't use the service for commercial reasons -- though almost no one knows this. Yet, Vimeo itself seems to decide rather arbitrarily if your videos are commercial or not and then gives you a 24-hour notice to remove your videos. This is rather disappointing. Vimeo's player is actually quite nice (much nicer than YouTube's), and I've recommended many others to use its service. I had my own odd problem with Vimeo last year when for some unknown reason the company completely deleted my account and locked me out of using the service. Eventually they restored the account, but no explanation for the deletion was ever given (and it made me look bad, because I had been discussing stuff with someone, who then accused me of deleting my posts).
The other oddity is the claim that Vimeo says you cannot embed Vimeo videos on sites that show ads, as that's "commercial use." Once again, we get into the difficulty of figuring out what is commercial use? If I embed a Vimeo video in a blog post is that commercial use? This is a blog, but it's part of our business. Similarly, some of the speeches I've given in the past couple of years were put online using Vimeo. Are these "commercial use"? Are they then commercial use if I happen to embed the video in the blog? What if I embed someone else's video in this "commercial" blog? Like -- as we did with the Vimeo getting sued story -- embedded a video from Vimeo itself? It's nearly impossible to figure out what is and what's not commercial. About the only thing you can say is that you probably shouldn't use Vimeo for anything, because its policies appear to be totally arbitrary and prone to suddenly losing the videos you thought you had legitimately posted.
We've been absolutely stunned by the Italian attempt to prosecute Google execs over a YouTube video. If you don't recall the story, apparently some schoolboys taunted a disabled boy by throwing a tissue box at him. They filmed the entire ordeal and posted it to YouTube. Because of the video, the kids in the video were actually held liable for the taunting. It actually helped bring those kids to justice. Meanwhile, Google took down the video as soon as they were alerted to it by the authorities (within a couple hours of finding out about it). But Italian prosecutors insist not only that Google should have blocked the video entirely, but the fact that they left it up means that its execs are guilty of criminal violations and deserve jailtime.
In pressing the case forward, prosecutors are claiming that Google must have known about the nature of the video because there were comments on the YouTube video expressing disgust over the video. It's as if they believe that Google execs read all the comments posted to YouTube and use those to pick and choose which videos should stay up and which should be taken down.
In the meantime, I'm still wondering why Italian prosecutors are not trying to push the tissue manufacturer in jail as well, as I would argue that those who made the package of tissues thrown at the boy are at least as, if not more, responsible for the actions of those kids as Google.
Once again, we're left wondering how Hulu can survive, given that its ownership has too much interest in restricting what its customers want to do. Following braindead efforts to block specialized browsers, even though they access Hulu content just like regular browsers, combined with blocking anonymous proxies, even those used for perfectly legitimate reasons, Hulu is apparently now cracking down on sites that embed a lot of its videos -- yes, despite having embed functionality specifically allowed.
You may recall that one of the key reasons why YouTube became so popular in the first place was a little javascript hack that made it incredibly easy to embed the video directly into any other website (while still hosting the content on YouTube). Suddenly, rather than having to link to the video, it was easy to have video on any other website. Hulu of course recognized the value of that and included embed code functionality as well, but quickly found itself unsure how to deal with the fact that people actually used it. Back when Hulu was still in private beta, requiring invites to access the sites, some other sites quickly decided to just embed all the videos on their own sites, pulling in the traffic that Hulu could have generated for itself. Many sites apparently are still embedding lots of Hulu shows, and Hulu has simply decided to tell those sites to stop. As NewTeeVee notes in the link above, nothing good will come from this policy. It comes across as being rather against how the web works and how people expect the web to work. In the end it just appears like yet another "but we can stop people from doing what they want to do" move that all too often comes from those in legacy industries.
If you haven't been paying attention, over the last couple of months, the "buzz" over "augmented reality" has been building. It seems likely that it's going to be one of those topics you hear a lot about in 2010, so get ready for it now. The basic concept is that you'll be able to overlay digital information on the real world, and conceptually, it could be really cool. If you had heads-up displays or a contact lens, it could actually be quite useful. The concept itself isn't new. This video from five years ago shows that people have been working on the concept for quite some time:
Yet, in the last few months, it's reached new levels of buzz, in part due to the fact that new augmented reality apps for mobile phones have started showing up. Some of these are cool, some are gimmicky -- but all are pretty early in development. It's going to take some time before they're really useful.
But that isn't stopping some folks from trying to get ahead of the curve in jumping on the augmented reality bandwagon. Unfortunately, the end result seems kinda gimmicky and useless -- more for show, rather than to do anything useful. Last week, all the buzz was about singer John Mayer releasing an augmented reality video, but if you watch the following video, you might wonder what the point is:
Beyond being complicated (you need to either print out an image on a piece of paper, or have the image show up on your iPhone, and then you need to turn on your webcam and line up the image on the paper/iPhone with one on the screen), it's not clear what value the augmented reality adds, other than the fact that you can rotate the video in 3D as it's playing.
And, now, Esquire magazine is trying to do the same thing. An image in the magazine, when held up to a computer webcam and lined up correctly, and Robert Downey Jr. will apparently show up on your screen and say stuff. I give Esquire some credit for trying, and making the paper magazine have something different that might attract some buyers, but it doesn't seem like they're using the augmented reality for anything useful.
My guess is that we'll be seeing a lot more of these useless augmented reality experiments, combined with lots of press coverage and hype -- and most people won't even bother, because it's not that useful. Perhaps, then, the hype can die down and some really useful augmented reality apps can start to show up.
