Danny points us to yet another story of copyright being used to stifle creativity, rather than enhance it. It's the story of Jodie Rivera, better known as VenetianPrincess, for years "the most subscribed to female on YouTube." She creates video parodies of famous pop songs, such as the Lady Gaga parody below, which has nearly three million views:
However, apparently she hasn't been releasing videos lately, and a few weeks ago, took to YouTube to explain the unfortunate reasons why. It seems that various music publishers are telling her that parody is not fair use, and, from the sound of it, have been threatening her if she doesn't pay up. You can see her explanation here:
She doesn't explain the full details, but it's not hard to guess what happened. The publishers, who represent the songwriters, not the performers, can likely claim that while the song may be a parody of the musicians, it's still using the actual music, and thus is not fair use (there are some other legal arguments as to why it might not be fair use as well). But, if you look at it from a common sense standpoint, it's ridiculous. These parodies don't take anything away from the original songs, and, if anything, probably serve to make them even more popular. So, once again, we have a case of copyright law being used to stifle creativity, rather than enhance it.
With the recent fighting over NASA funding, a lot more interest has been put on private space flights by companies like SpaceX (and, indeed, the new funding bill encourages NASA to make more use of such efforts). But it's neat to see that you don't have to be a company or the government to at least launching something that gets a good ways up towards space (if not really that close to the border). One guy named Luke Geissbuhler (with his kids and some friends) launched a video camera 100,000 feet into the air connected to a weather balloon. The video is amazing (or if you don't have the time to watch the whole thing, beneath that, there's a still shot from the apex:
As Geissbuhler notes in the video:
In August 2010, we set out to send a camera to space.
The mission was to attach a HD video camera to a weather balloon and send it up into the upper stratosphere to film the blackness beyond our earth.
Eventually, the balloon will grow from lack of atmospheric pressure, burst, and begin to fall.
It would have to survive 100 mph winds, temperatures of 60 degrees below zero, speeds of over 150 mph, and the high risk of a water landing.
To retrieve the craft, it would need to deploy a parachute, descend through the clouds and transmit a GPS coordinate to a cell phone tower.
Then we have to find it.
Needless to say, there are a lot of variables to overcome.
The results are impressive, to say the least. Of course, if you want to quibble, 100,000 feet really isn't space. Some would argue it's not even that close to space (though, the images sure are impressive), but to those who are quibbling: how high have you launched an HD camera via a balloon and then retrieved it?
Just a few weeks after a German court ruled that YouTube was somehow responsible for copyright infringement done by users, a Spanish court has ruled in the exact opposite manner. Basically, the court properly recognized that Google is the tool that is used, and that it should not be responsible for the infringing behavior of its users. The court also properly notes that YouTube makes it easy (I'd argue, perhaps too easy) to remove content that a copyright holder believes is infringing. This is, of course, similar to the Viacom ruling here in the US.
It's also no surprise that a Spanish court has ruled this way. Spanish courts have ruled over and over and over and over again that liability should be applied towards the actual infringer, rather than the third party tool provider. This is basic common sense, but it's resulted in a misleading media campaign by the entertainment industry falsely claiming that Spain is somehow weak on copyright.
Properly applying liability to the party actually responsible is not being "weak," it's being accurate and fair. It's nice to see Spain recognize this. Hopefully, Germany figures this out at some point as well.
Reader samkash points us to a recent interview with The Goo Goo Doll's John Rzeznik by Mike Ragogna. There are two bits in the interview that will be interesting to folks around here. The first is that he admits that he doesn't really like the official video for the band's new single... but mentions that he much prefers a fan-made video found on YouTube:
MR: Yeah. Now, "Home" is your new single?
JR: Yes.
MR: And it comes with a video.
JR: I've got to be honest, man, I don't really like the video. They kind of wanted to do this sort take off on Lost In Translation, and I'm doing a hundred things, and I'm like, "Sure, okay, that's fine. Let's do it." You know, there's another video out on YouTube that the fans made. They sent in little video clips and some woman edited them together, and I think it captures a lot more emotion than the official video did.
MR: Often, fans do know what's best.
JR: They do, they always do.
Stories like this always amuse me, because, of course, it wasn't that long ago that all we heard was how evil such "infringers" were, in creating their own videos "using music that doesn't belong to them." It's always nice to see musicians realize that fans making videos are fans making videos, rather than threatening them with infringement claims.
The second interesting bit is the fact that Rzeznik admits to using Limewire to find a song that he couldn't get on iTunes. This is, of course, why many folks use tools like Limewire, but if you believe some of the people speaking out against file sharing, you would hear that it's "destroying the music business," how no real musicians would ever use file sharing programs, and how the only reason people use stuff is because "they just want stuff for free." Not only does this show, yet again, that there are other reasons why some folks use file sharing programs, but in this case, Rzeznik not only downloaded the song, but it resulted in the Goo Goo Dolls covering the song he downloaded on their latest "deluxe version" of the album.
MR: Something For The Rest Of Us also is released as a deluxe version with a digital download of "Home," a signed lithograph, and three bonus tracks--Flesh For Lulu's "Postcard From Paradise," Pete Townshend's "Rough Boys," and the Kinks' "Catch Me Now I'm Falling"?
JR: Yeah, yeah.
MR: What inspired the covers?
JR: Well, I love that Flesh For Lulu song. It's such a great song, and I was looking through the old CDs and stuff trying to download it online. Actually, I have to confess that I went to Limewire and found a copy of the original song because I couldn't find it on iTunes. So, if I ever run into the guys from Flesh For Lulu, I promise I'll give them a buck (laughs). It's just such a great pop song, and people don't write songs like that very much anymore.
Just after a court ruling saying that YouTube did not have to rush and takedown videos covered by German collection society GEMA, but warning that YouTube could very well lose during a full trial, it appears that a German court has ordered YouTube to pay up, because some users uploaded videos of singer Sarah Brightman without permission. Google had argued that it can't be held responsible for making sure the content users upload is not infringing, and pointed out that it even asks users to confirm that they have the rights to upload the works they're uploading. However, the court claimed that such a requirement doesn't absolve YouTube from liability.
The company is going to appeal, but I'm trying to figure out how this makes any sense at all. How can Google possibly know upfront whether or not a user has permission to upload content? It makes absolutely no sense.
Of course, the timing on this is quite good for me. I'm hopping a flight to Germany this weekend, to attend the A2N conference where (among other sessions), I'll be having an on-stage talk with Patrick Walker, from YouTube -- where I'll at least be certain to ask about this.
Almost exactly a year ago, the tech press went nuts over rumors that Google was negotiating with movie studios to allow movie rentals via YouTube. At the time, we pointed out how odd it was that none of the press coverage seemed to point out that when Google first launched its Google Video offering, it was all based around video rentals with annoying DRM, and it failed miserably. Instead, everyone went to YouTube, and Google eventually had to buy up the site. And, again, when the company ran a trial earlier this year, reports came out about the fact that very, very few people actually paid. Google and video rentals don't have a very good history.
So again, I'm at a bit of a loss as to why the tech press is pushing a story of rumors that Google is negotiating with the Hollywood studios to do movie rentals via YouTube. It's nearly the identical story to the one this week last year. If I didn't know any better, I'd think that someone at the Financial Times, who "broke" this story, just misread the year on an email somewhere. Perhaps somewhere along the line Google will figure out a way to do movie rentals that work, but the silly fawning over "video rentals" just because (oh my goodness!) Google is supposedly entering the market seems misplaced (especially when no one seems to want to talk about its previous failures). The Financial Times report says that Google's new offering "has caused excitement in Hollywood," but, if anything, that seems like even more evidence that it's doomed to fail.
Separately, I should note that I'm not linking to the FT version of this article, because FT's paywall makes it difficult for most people here to read it. A PR person from the FT sent me the article, but I'm not sure what they expect me to do with it. It doesn't do much good for me to link all of the readers here to an article they can't read, does it?
Interesting timing on this. Next Thursday, September 9th, at the All 2gether Now conference in Berlin, I'll be on stage having a discussion with Patrick Walker of YouTube about collection societies, record labels and how they deal with sites like YouTube. Of particular interest, given the location, will be the ongoing legal fight between the German collection society GEMA and YouTube. On that note, a German court just initially side with YouTube that it does not need to block videos from appearing on YouTube, but (more worrisome), suggested that in a full trial it had a much better chance of siding with GEMA and suggesting that YouTube should police the content on the site:
"There are some good reasons to think that YouTube indeed has some duty to take care of detecting illegal uploads," Presiding Judge Heiner Steeneck said today. "GEMA has the opportunity to ask for such a ruling in regular proceedings."
The two organizations have been fighting about this for some time now, but I don't quite understand the judge's "good reasons" here. How is a third party supposed to be able to detect infringing content when many musicians and labels already put their content on YouTube on purpose? How is YouTube supposed to make the determination of "this is infringing" without additional info? Already, YouTube does have a Content ID system which will block certain uploads (or let the copyright holder monetize them) so I'm not clear how much more the judge or GEMA expects.
Separately, since I'm already mentioning my participation at A-2-N, I should also mention that I'm running an interactive "brainstorming session" on Tuesday the 7th on better ways to connect with fans and give them a reason to buy. For those attending the event, I hope to see you at either of those sessions.
Earlier this year, there was a reasonable bit of fuss over Paramount issuing a bogus DMCA takedown on someone who had videotaped a brief snippet of the filming of the next Transformers movie, which was going on in an alleyway right outside the guy's office. It was difficult to see what sort of "copyright" violation there was here. The guy, Ben Brown, had filmed it himself, and it wasn't like it was a private set or anything. Paramount never made any sort of statement, but the video did go back up a few days later. Apparently, the over aggressive lawyers at Paramount didn't learn their lesson. Apparently, a bunch of videos that people shot themselves of filming of the movie going on in Chicago were all taken down from YouTube under DMCA claims. Again, it's difficult to see how these claims are legit -- and this is especially troubling, seeing as it comes from Paramount, which is owned by Viacom. Viacom, of course is involved in a bit of a legal battle with YouTube -- but, more importantly, in a previous legal battle over bogus Viacom DMCA takedowns, Viacom had agreed to manually review all takedown notices to avoid bogus takedowns like this one.
Well here's a surprise. The US Copyright Office finally used its obligated DMCA exemption rulemaking process to support exemptions that protect consumers. As you may recall, every few years the US Copyright Office is obligated, by law, to listen to requests for specific classes of work that should be exempted from the DMCA's anti-circumvention clause and then recommend that the Library of Congress adopt certain exemptions (if it so chooses). Usually the exemptions are extremely limited and do little to protect consumers. In fact, in the past, the EFF has argued it wasn't even worth requesting exemptions for consumer issues, saying the process was "simply too broken." This year, however, they did participate, and actually got some things through.
Included in the rulemaking were exemptions that say jailbreaking smartphones is legal, saying:
"When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses."
Separately, it approved getting around DRM on DVDs for use in non-commercial or educational video works. This is a blow to Hollywood, which in the past has tried to suggest that if educational institution want to use a fair use clip from a video, they should just set up a video camera on a tripod pointed at a TV screen playing the DVD. That said, the Copyright Office made it clear that these uses are very limited, and must be for purposes of "criticism or comment," and the maker of the new work must show that the circumvention is "necessary" to make the video work, saying "where alternatives to circumvention can be used to achieve the noninfringing
purpose, such noncircumventing alternatives should be used." That seems extremely limiting, since you can almost always claim that some sort of alternative could be used.
The EFF also notes that the Copyright Office renewed one good exemption from a previous rulemaking, while clarifying what it covered, where it noted that unlocking a mobile phone to take it to another network is not violating the DMCA.
There were some additional classes approved, including video game DRM, in certain cases, where the DRM is being broken for the sake of security testing. They also approved getting around DRM in the form of computer dongles when those dongles are considered "obsolete," defined as "no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace." This one is also basically an expansion of an earlier ruling. The final one is also more or less a repeat of earlier rulemakings, concerning allowing ebooks to be read aloud for the blind -- even though the Copyright Office recommended against it, the Librarian of Congress included it anyway.
Separately, it is notable what was requested and rejected, but we'll do a separate post on that later.
We recently wrote about a video that suggested that a Viacom web property, Spike.com, was doing to Jonathan Coulton what Viacom was claiming YouTube/Google had done to it. As we noted in the post, the video played a bit fast and loose with the facts, so we were a bit skeptical of the whole thing. It later turned out that a Viacom exec pointed out to Coulton that, many years ago, he had (in passing) authorized the use of the video on iFilm, as part of an effort to get the video on VH1. Of course, he's also now realizing that due to the non-commercial use clauses of many of the Flickr images he used in the video (which is about Flickr), that he probably didn't have the right to put it on a commercial site.
This is the point where Viacom supporters do the happy dance and claim that this proves how wrong everyone was to jump on this story.
Except... not so fast. This little vignette actually supports YouTube's position a hell of a lot more than Viacom's. It shows just how complex and messy these issues can be -- such that there's no real way for some third party to judge whether or not it's infringing without knowing the details. Even the content creators themselves -- whether Coulton or Viacom -- often seem to get confused over the matter. And yet Viacom thinks that Google can hire 30,000 lawyers skilled in copyright law to review the 24 hours of video uploaded every minute on the site? When even the content creators themselves don't know?
Even if you could hire 30,000 experts in copyright law and fair use to analyze each and every video uploaded, it still wouldn't work out. In this case, Coulton gave the approval for the video, but even he's now realizing (years later) that the images in the video were restricted and shouldn't have been allowed on a commercial site. But he was trying to get the video on a "viral videos" program on VH1. VH1 is a commercial property too, right? So wouldn't that have been just as infringing? Or would that be fair use?
The whole point is that it's not at all easy to figure out these things. As a court in Australia recently noted, the determination of infringement is not a black or white thing:
Copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether.... users infringe copyright....
That's a key point in all of these discussions. Companies like Viacom like to claim that Google can easily figure out what is and what is not infringing, but there's no magic bullet or magic wand to do that. There's no way to know whether the content is properly licensed, or being uploaded by someone who has all the rights. There's no easy way to know if a court would find a work to be infringing or fair use. And dumping that decision-making onus on a third party service provider makes little sense no matter how you look at it. If there's an issue, it's between the copyright holders and the uploaders of the content. Bringing in a third party and demanding they police such things without the knowledge to do so simply makes no sense, and clearly is not what Congress intended with copyright law.
