EMI Claims Controversial Satriani/Coldplay Mashup Video Violates Coldplay Copyright

from the ironically-stupid dept

A few weeks ago, there was quite the lively discussion over a video mashing up Coldplay's song Viva La Vida with Joe Satriani's If I Could Fly. While the video had been on YouTube for quite some time, Satriani had decided to sue Coldplay over it, demanding all profits from its song. There are a number of reasons why this didn't make much sense, but folks in our comments did a fantastic job sniffing out the details -- including the fact that the video mashing up both videos had actually altered to make them sound alike, and if you listened to the originals, they were not nearly as close. They are in different tempos/keys to make them sound alike. That same user also pointed us to a Cat Stevens song Love/Heaven from (at least) 1973 that sounds quite similar as well, suggesting that if Coldplay owes Satriani any money, Satriani actually owes Cat Stevens quite a bit as well. Or there's the song Hearts by Marty Balin of Jefferson Starship... written in 1981. Or any of the other dozen or so songs that others have pointed out sound quite similar -- and if mixed professionally to change the tempo could probably sound like a pretty exact match.

Either way, it appears the story has now taken a turn towards the totally ridiculous, as EMI, who holds the copyright on Coldplay songs has gone around claiming copyright on the Satriani/Coldplay mashup videos that were out there. It is true that whoever put those videos together, did a really good job adjusting the two songs to make them work together. Because of that, many people hear the mashup and immediately assume that it's so close that Coldplay absolutely must have copied Satriani. But, there's little actual evidence to support that -- and, given that both songs were actually adjusted to make the video, it's quite misleading. Still, for EMI to then go and demand those videos be taken down (while leaving up plenty of other videos of just Coldplay's music) is just dumb. First of all, the mashup video is almost certainly fair use. It's used for criticism and/or reporting, and not for profit (well, unless you're Joe Satriani).

But, more importantly, in pulling down the video it makes it look like EMI and Coldplay have something to hide, while calling even more attention to the whole thing. It takes a special kind of short-sightedness to claim that a video supposedly demonstrating your own copyright violations violates your copyright. When the whole story first broke, Coldplay quickly denied any connection, saying that, if there were any similarities it was a coincidence. The band should have left it at that... or, if EMI were really smart (stop laughing), it should have produced a professional mashup of some of those other songs as well, demonstrating how common that particular melody is in music, and how one can distort a few songs to make them sound the same. Instead, it chose the worst option of all: acting guilty and abusing copyright law to try to hide stuff.

Filed Under: cat stevens, coldplay, copyright, fair use, joe satriani, mashup, music
Companies: emi

McCain Responds To Jackson Browne Lawsuit: Here's How Fair Use Works...

from the indeed dept

During the presidential campaign, we noted that singer Jackson Browne had sued the McCain campaign for the use of one of his songs in a commercial. The McCain campaign has filed a response to the lawsuit, first noting that it wasn't the McCain campaign that used the song in an ad, but the Republican Party of Ohio. Second, the campaign points out that the use of the song probably qualifies as fair use:

"Given the political, non-commercial, public interest and transformative nature of the use of a long-ago published song, the miniscule amount used and the lack of any effect on the market for the song (other than perhaps to increase sales of the song), these claims are barred by the fair use doctrine."

Of course, between this and the McCain campaign's attempt to get YouTube to apply different fair use rules to presidential campaign videos, it makes you wonder if Senator McCain will actually try to do something in the Senate to improve copyright law to make fair use more explicit and make it clear that it covers these sorts of actions. Somehow I doubt it.

Filed Under: copyright, fair use, jackson browne, john mccain

Parody Is Still Fair Use Last We Checked

from the but-it-won't-stop-the-lawsuits dept

The EFF is representing a NYC activist who is protesting redevelopment efforts for New York City's Union Square. The woman, Savitri Durkee, set up a website parodying the website of Union Square Partnership, a group that is pushing to heavily redevelop Union Square. Such a parody is certainly a reasonable and lawful way of making a point and protesting USP's actions. However, USP basically fired off multiple shots against Durkee to get the site taken down, starting with a DMCA takedown notice to Durkee's hosting company, followed by a copyright lawsuit against Durkee and a claim with WIPO that the domain name Durkee used violated their IP, and demanding that it be handed over to USP. As the EFF notes, parody is protected under fair use doctrine, and it seems quite clear that USP is doing all this to stifle Durkee's right to speak out against USP's redevelopment efforts.

Filed Under: copyright, dmca, fair use, parody, savitri durkee, union square
Companies: eff

The Web Thrived In Spite Of The DMCA, Not Because Of It

from the too-much-credit dept

While I was pointing out all of the reasons why the DMCA needs to be re-examined from scratch, Wired has put up an article detailing the one single positive aspect of the DMCA: the safe harbor provisions that protect service providers from liability for copyright infringement done by users. However, I think Wired, and the various people quoted in the article, give way too much credit to the DMCA for a variety of reasons. In fact, Wired goes way too far in claiming that the DMCA "saved" the web and allowed it to become what it is today, suggesting (incorrectly) that things like blogs and YouTube wouldn't be successes without the DMCA.

First, the claim by an MPAA representative that without the DMCA movie studios wouldn't have moved to DVDs is, at best, stretching the truth. While some studios would have been nervous, it wouldn't have taken long for some studios to more aggressively experiment with DVDs, and early success would have made studios unwilling to hold back. Besides, it's not as if the DMCA has actually done anything to protect DVDs. DVD ripping software is widely available.

As for the safe harbor provisions, there's plenty of reason to believe that we would have reached the same legal situation even without the DMCA's safe harbors. Two years prior to the DMCA, the CDA was passed, and while pretty much all of that law was thrown out as unconstitutional, the bit that remained was the famous section 230, which provides a very similar safe harbor for non-copyright issues. It's not difficult to believe that in the absence of a DMCA, section 230 would have been expanded to cover copyright. And, even if section 230 wasn't extended explicitly, one would hope that the courts would have established the exact same precedent by noting how ridiculous it is to blame a service provider for the actions of its users. The fact that we even need safe harbor provisions is ridiculous. It should be common sense that liability should be placed on the actual party to do the action, rather than any service provider that was used in the process.

Finally, Wired talks up the whole notice-and-takedown process, which has been a tremendous burden for many sites. While Wired does highlight how the notice-and-takedown process has been regularly abused, it still gives too much credit to the whole system. If Congress really had to have a formal takedown process, it makes perfect sense to have a notice-and-notice system, where the accused infringer would have a chance to respond to the charges before the content is taken down (innocent until proven guilty, blah blah blah).

So, yes, the safe harbors provided by the DMCA are a good thing -- but to extrapolate from that and a few other questionable points that the DMCA is responsible for the rise of things like blogging and YouTube is hard to square with reality. It's quite likely that things wouldn't be all that different in the absence of the DMCA -- except we'd have a lot fewer abuses of it.

Filed Under: copyright, dmca, fair use, notice and takedown, safe harbors

Will Either McCain Or Obama Commit To Reforming The DMCA?

from the unlikely dept

With the McCain campaign upset at how the DMCA (which he voted for) makes YouTube take down videos even if they might not have infringing content, we wondered if he would go beyond asking YouTube for special treatment, and instead push to fix the DMCA. So far, the campaign has been pretty quiet on that issue, but Paul Alan Levy from Public Citizen has written a letter (pdf) to both campaigns, asking them to commit to having the DMCA reformed in a few significant ways once Congress is back in session.

The suggested changes would definitely be a big step in the right direction -- effectively moving the system from a "notice-and-takedown" system to a "notice-and-notice" system, which allows whoever posted any content to respond before it's taken down. It would also require a lot more openness in the process, including an initial notification to whoever uploaded the content, as opposed to just the service provider, and a system for making the takedown notices public. As it stands now, the system allows anyone to claim infringement and get the content taken down, without the original uploader or the public understanding why. The proposal would also make it easier to punish those who send false takedowns, which might help alleviate some of the problems. Somehow it seems unlikely that either campaign will get behind these proposals, but considering that they've both now seen how the DMCA has worked against them, it would be nice for them to make a concerted effort to fix it.

Filed Under: barack obama, copyright, dmca, fair use, john mccain
Companies: public citizen

YouTube Tells McCain He Doesn't Get Special DMCA Treatment

from the change-the-law-and-we'll-talk dept

Earlier this week, we pointed out the letter the McCain campaign had sent YouTube concerning observing fair use before complying with takedown notices on political videos. As we noted at the time, the problem with the situation wasn't with YouTube, but with the DMCA (which McCain voted for, by the way). Now, YouTube's Zahavah Levine has responded to the letter, and made the same point. YouTube won't change its practices because that would be granting special privileges to the campaign rather than everyone else. Instead, YouTube hopes that McCain will help fix the law so that this isn't a problem going forward:

While we agree with you that the U.S. presidential election-related content is invaluable and worthy of the highest level of protection, there is a lot of other content on our global site that our users around the world find to be equally important, including, by way of example only, political campaigns from around the globe at all levels of government, human rights movements, and other important voices. We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation or a candidate for public office.

The real problem here is individuals and entities that abuse the DMCA takedown process....

We look forward to working with Senator (or President) McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair use doctrine....

This is the right response. As problematic as the takedown process is, the answer should be to fix the law -- not make special exceptions for politicians.

Filed Under: campaign, copyright, dmca, fair use, john mccain, takedowns, videos, william patry, zahavah levine
Companies: google, youtube

Fair Use Project Sues Michael Savage For Stifling Free Speech Of His Critics

from the yet-again dept

You may recall the lawsuit earlier this year, where radio talk show host Michael Savage tried to sue one of his critics for copyright infringement. The group in question had a pretty clear fair use claim, as they were using Savage's radio broadcasts for commentary and to respond to Savage's attacks on the group. And, in fact, a judge wasted little time explaining fair use to Savage, and tossing out the lawsuit.

However, it appears that Savage hasn't yet learned his lesson on fair use, as he's apparently been sending more takedown notices to folks who use his recordings and respond critically to Savage's on-air claims. In this case, the production company Brave New Films created a similar video critiquing Savage's statements. Savage's syndicator sent out a DMCA takedown notice -- something it clearly should have known was questionable given the recent lawsuit results. So, now, the Fair Use Project is suing Michael Savage and his syndicator, Original Talk Radio Network, on behalf of Brave New Films, for misrepresentations in their DMCA takedown notice.

In the original case, we had some Savage fans show up here in the comments insisting that his misuse of copyright was a good thing, because it would help "expose" the group that was criticizing him as a terrorist front. That's a ridiculous statement of course. If the group were a terrorist front, then that's something for the government to deal with -- rather than a justification for misusing copyright law. Are we now going to hear that Brave New Films is really a terrorist front as well? Or is it just anyone who criticizes Savage must be a terrorist front, and thus it's perfectly fine to try to misuse copyright law to shut them up? Free speech doesn't mean just the speech of people who agree with you.

Filed Under: copyright, dmca, fair use, michael savage, takedowns
Companies: brave new films, fair use project, original talk radio network

McCain Campaign Sends Letter To YouTube Defending Fair Use

from the what-the...? dept

This is impressive, and somewhat unexpected. It's rather rare to see politicians (other than maginal ones, at least) showing any sort of recognition of fair use. It's certainly not an issue you'd expect to see raised by a presidential candidate (of either party). However, John McCain's campaign has sent a letter to YouTube complaining about the site's unwillingness to consider fair use in videos before taking them down. You can read the whole letter at that link or below (if you're not reading via a feed):

The letter basically notes that YouTube seems a bit too fast on the trigger in pulling down content based on DMCA takedown notices, in part parroting the some of the recent ruling where a judge said that those sending DMCA notices need to at least take fair use into consideration. Of course, that was directed at the sender of the DMCA takedown notice, not the recipient, as in this case. I'm sure the McCain campaign recognizes that YouTube is completely within its legal rights to automatically pull down the content, but in sending this letter the campaign is suggesting that, specific to videos put up by either political campaign (the letter cc's the Obama campaign), that YouTube take into account fair use.

The letter is addressed to YouTube's founder, Chad Hurley, as well as Google's Senior Copyright Counsel, William Patry (who we've talked about and quoted here many times) and Zahavah Levine, who is General Counsel for YouTube, who I've met and spoken with in the past. Both Patry and Levine are well aware of the legal issues here (probably better than just about anyone else), so it will be quite interesting to see how they respond. The real issue here has almost nothing to do with Google/YouTube -- but with the way the DMCA itself is structured. Since it provides clear safe harbor for a recipient of a takedown notice if they take down the content, it's a reasonable business decision to simply take down the content and then follow the proper procedures for letting the uploader file a response notice.

While it certainly would be nice for YouTube to take into account fair use before deciding whether or not to pull down the content, the real problem is with the law itself, and the incentives it puts in place for any recipient of such a letter. If the McCain (or Obama) campaign were really concerned with that, they should not just ask for this special exception to YouTube's official policies, but should promise to push for a change to the DMCA that makes an explicit point that recipients of such takedown notices shall retain their safe harbor protections even if they refuse to take down content, if they have a reasonable belief that the content in question is being used in accordance with fair use rules.

Filed Under: campaign, copyright, dmca, fair use, john mccain, takedowns, videos, william patry, zahavah levine
Companies: google, youtube

MLB Backs Down When Someone It Bullies Explains Fair Use To Them

from the well,-that's-better-than-the-alternative dept

For years now, Major League Baseball's online division, MLB.com, has been over aggressive in claiming ownership and control over anything associated with Major League Baseball -- even though court after court has told them they don't get to control everything. However, MLB just keeps on claiming ownership of things anyway, such as sending out various DMCA takedown notices to YouTube for any clip of baseball put up by anyone else. Larry Lessig has the story, though, of one fan who fought back and filed a detailed counterclaim about how his video was fair use and MLB was repeatedly abusing its power in damaging ways. Amazingly, not only did MLB relent, it featured the video it had just demanded get taken down on its own blog. To be honest, there's a chance that the two things are unrelated, and the blogger had no idea that the parent company's lawyers were trying to shut down the video -- but the story is a good reminder that if someone is overreaching in their takedown attempts, it can be effective to respond with a counternotice that clearly states the issues.

Filed Under: baseball, fair use, josh hamilton, the natural
Companies: mlb

Is It Copyright Infringement For A Political Campaign To Use A Snippet Of A News Broadcast In An Ad?

from the fair-use? dept

Reader Video Savant alerts us to the fact that CBS Interactive is the latest entity to ding the McCain campaign for copyright violations. In this case, CBS has sent a takedown notice to YouTube concerning one of McCain's latest commercials. The commercial uses a brief clip of CBS Evening News with Katie Couric. CBS explains that it does not endorse a candidate for president, and it's inappropriate for either campaign to use a clip containing Couric. You can certainly understand why CBS (or any news station) wouldn't want to appear to have endorsed a candidate if they have not -- but it's difficult to see how those viewing the clip would assume that Couric was actually endorsing the campaign (or the ad, which appears to be almost entirely misleading -- isn't presidential politics great?).

So, the question, then, is whether or not this is fair use, and whether CBS is correct in having the ad taken down. It's a very short clip of Couric (about 5 seconds), and it seems quite likely that this would be found to be fair use. According to the article, it looks like CBS just sent the takedown to YouTube, while the ad remains on McCain's site. It would be interesting to see if CBS tries to take it down from McCain's site or other sites that are hosting the ad as well. While I think the ad is incredibly disingenuous (and, honestly, a totally stupid issue -- what happened to debating on the important issues?), it's difficult to see how this is copyright infringement.

Filed Under: campaign ads, copyright, fair use, john mccain, katie couric