Even if 20/20's use of the UMG clips were to be fair use (and I'm not convinced they are--I think it's more likely they were licensed) there's no authority that I can find that supports the idea that a person like postingoldtape who presumably infringes by reposting the 20/20 clip gets to take advantage of 20/20's fair use of the UMG clips within. That just makes no sense to me.
UMG is still the rights holder of those clips. If 20/20's use is fair, then UMG can't assert those rights against 20/20, but that doesn't mean they can't assert those rights against other people, like postingoldtape.
Unless you can find some caselaw on point to back up your argument, I stand by the position that this is anything but "clearly fair use." It simply is not.
I agree that I think the UMG clips were licensed to 20/20 for the show. I don't really know, but I'd be surprised if 20/20 just used the clips hoping they were fair use. It makes sense that ABC would protect itself from potential liability by simply licensing the clips. I would be genuinely surprised if they exposed themselves like that.
But even if ABC did use those clips hoping they were fair use, I see no reason whatsoever to think that ABC's potential fair use clearly "transfered" to postingoldtape. Fair use analysis is done on a case by case basis. You need a different analysis for postingoldtape's use. Considering that postingoldtape just posted a 20/20 clip in a manner that appears to me to be anything but clearly fair use, I think it's pretty clear that his use of the UMG clips within the clips is anything but clearly fair use as well.
Calling this "clearly fair use" misses the mark by a mile. It's anything but. Of course, Mike's too dug in to admit it at this point. I think the intellectually honest thing to do would be to admit that it's not "clearly fair use." But that's me. I prefer to be intellectually honest.
I agree with Fleebly Deebly's post about there being four parties, but I don't agree with his ultimate conclusion that even though postingoldtape is infringing by posting the clip, the infringement is with respect only to ABC and not UMG. To me it seems natural that if postingoldtape is infringing to one, he's infringing to the other.
I did a quick search on Lexis to see if I could find a reported case on point, and I did find one. Unfortunately, it wasn't decided on the merits. Nonetheless, it's worth a look. The case is Explorogist v. Sapien, 2007 U.S. Dist. LEXIS 79754. In that case, the plaintiff was Uri Geller. You might have heard of him. This is the guy who claimed he could bend spoons with his mind.
The defendant, Sapien, posted on youtube a video clip from the television program NOVA. Within this clip from NOVA was a three second clip of video that was Geller's IP. Geller filed a DMCA takedown notice for the NOVA clip that contained a clip of his IP, and then Geller sued Sapien for copyright infringement.
So we have exactly the same situation in that case as we do in this case. An IP holder issued a takedown notice for a clip within a clip on youtube. Unfortunately though, the case got dismissed without prejudice on procedural grounds. The case is informative though since it shows that an IP holder can issue a takedown notice and sue for a clip within a clip on youtube.
And when you think about the Lenz case that was discussed above, that's what happened there as well. Prince's song was playing in the background of a homemade video, and a takedown notice was issued. That case was only a motion to dismiss that was decided on very narrow grounds--the takedown notice was not issued in good faith because whether or not the video was fair use was not considered by the issuer of the takedown notice. But still it's clear that an IP holder can issue a takedown notice for a clip within a clip.
It's an interesting question, and I'll search more to see if I can find any other cases that shed some light on this. If anything, though, I wouldn't say postingoldtape's use was clearly fair. Far from it. Nor would I say there's no reason UMG couldn't in good faith issue a takedown notice for the 20/20 clip.
This is certainly different than what you were saying above. Copyright theory doesn't say that copyright is the only way to incentivize innovation. So when you find an example of innovation that was incentivized without copyright, you're not disproving copyright theory.
The real debate, I think, is whether copyright is the best way to incentivize innovation.
LOL! I think you're mixing metaphors now. To go back to my analogy, they're saying that turkey gets the job done. Some people even say that turkey is the best way to get it done. What they aren't saying is that turkey is the only way to get it done.
Not really though. If the law is sufficient to get the job done, then that's good enough. I've never seen academics say that copyright is the ONLY way to incentivize authors. I HAVE seen it argued that it's the best way, though.
Well, welcome to the techdirt comment section. Thanks for joining us. :)
Interesting argument, but it doesn't hold water. Sufficient does not mean necessary.
Copyright can be sufficient to incentivize innovation without being necessary to do so. That's my whole point.
I was a math teacher in a past life, so let me give you an example...
Let's say my goal is to get full. I eat a whole turkey and it makes me full. You can say the turkey was sufficient. But I could also eat a whole pie and get full. So the pie is sufficient as well. Neither the turkey nor the pie are necessary to get full, since there are other ways to do it.
I've never seen any scholarly treatment of copyright argue that without copyright there would be no innovation. That's my point. That's not what copyright theory says.
I meant that I've never seen it argued that way from any scholars on the subject. If music and movie execs and politicians are getting wrong, I'm not surprised.
In your article, you state: "The theory behind copyright, of course, is that such government-granted monopolies are necessary to encourage innovation in a market."
I interpreted this to mean the theory as understood by academics. If you meant to say the theory as it's misrepresented by others, you certainly weren't clear about that.
The theory behind copyright, of course, is that such government-granted monopolies are necessary to encourage innovation in a market. The idea is that, without such protectionism, no one would bother innovating, because they'd know that others would immediately copy them. This was based on theory, however, and tragically, many people have continued to assume this theory must absolutely be true. As we've noted in the past, it's this odd "faith-based" approach to copyright law. That's a problem, because every bit of evidence suggests this theory is simply not true.
I've studied a lot of copyright theory, Mike, and I am certain that you are not correct about this. I've NEVER seen it argued that the government-granted monopolies are NECESSARY. The argument is that they are SUFFICIENT. Can you point me to one source of authority to back up your assertion that the theory says such monopolies are sine qua non to innovation? The fact that you think this makes your understanding of copyright theory very suspect, IMO.
I don't think that's correct. The countersuit lets them go after Stephens Media, rather than just Righthaven.
The more I think about it, the more I think it really is just about PR. Adding Stephens Media to the counterclaim gets them that much more media coverage. Think about it. Stephens Media is not a necessary party.
The counterclaim is only to have Democratic Underground's use declared noninfringing. They don't need Stephens Media to be a party to get that declaration. All they need is Righthaven.
Heck, they don't even need to file a countersuit to get the declaration. As I stated above, this is already their defense. The counterclaim is superfluous.
And, good grief, that list of defenses. Half of those don't even pass the laugh test. Again, I think it's all for PR.
If this thing goes to trial, I suspect Democratic Underground might win, but only on the fair use defense. But that'll be all that they need.
I think EFF chose this case because it's one of two or three out of close to 145 Righthaven cases where it's less than the whole article that's been copied. This case has the best chance of winning.
I wonder if they'll defend any of the cases where an entire article was copied.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
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UMG is still the rights holder of those clips. If 20/20's use is fair, then UMG can't assert those rights against 20/20, but that doesn't mean they can't assert those rights against other people, like postingoldtape.
Unless you can find some caselaw on point to back up your argument, I stand by the position that this is anything but "clearly fair use." It simply is not.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
Re: Re: Re: Analysis of Fair Use?
But even if ABC did use those clips hoping they were fair use, I see no reason whatsoever to think that ABC's potential fair use clearly "transfered" to postingoldtape. Fair use analysis is done on a case by case basis. You need a different analysis for postingoldtape's use. Considering that postingoldtape just posted a 20/20 clip in a manner that appears to me to be anything but clearly fair use, I think it's pretty clear that his use of the UMG clips within the clips is anything but clearly fair use as well.
Calling this "clearly fair use" misses the mark by a mile. It's anything but. Of course, Mike's too dug in to admit it at this point. I think the intellectually honest thing to do would be to admit that it's not "clearly fair use." But that's me. I prefer to be intellectually honest.
On the post: Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?
I did a quick search on Lexis to see if I could find a reported case on point, and I did find one. Unfortunately, it wasn't decided on the merits. Nonetheless, it's worth a look. The case is Explorogist v. Sapien, 2007 U.S. Dist. LEXIS 79754. In that case, the plaintiff was Uri Geller. You might have heard of him. This is the guy who claimed he could bend spoons with his mind.
The defendant, Sapien, posted on youtube a video clip from the television program NOVA. Within this clip from NOVA was a three second clip of video that was Geller's IP. Geller filed a DMCA takedown notice for the NOVA clip that contained a clip of his IP, and then Geller sued Sapien for copyright infringement.
So we have exactly the same situation in that case as we do in this case. An IP holder issued a takedown notice for a clip within a clip on youtube. Unfortunately though, the case got dismissed without prejudice on procedural grounds. The case is informative though since it shows that an IP holder can issue a takedown notice and sue for a clip within a clip on youtube.
And when you think about the Lenz case that was discussed above, that's what happened there as well. Prince's song was playing in the background of a homemade video, and a takedown notice was issued. That case was only a motion to dismiss that was decided on very narrow grounds--the takedown notice was not issued in good faith because whether or not the video was fair use was not considered by the issuer of the takedown notice. But still it's clear that an IP holder can issue a takedown notice for a clip within a clip.
It's an interesting question, and I'll search more to see if I can find any other cases that shed some light on this. If anything, though, I wouldn't say postingoldtape's use was clearly fair. Far from it. Nor would I say there's no reason UMG couldn't in good faith issue a takedown notice for the 20/20 clip.
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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If that's what they're saying, then I agree with you that they're wrong.
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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The real debate, I think, is whether copyright is the best way to incentivize innovation.
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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Turkey supporters can think that turkey gets the job done while acknowledging that pie works as well.
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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Interesting argument, but it doesn't hold water. Sufficient does not mean necessary.
Copyright can be sufficient to incentivize innovation without being necessary to do so. That's my whole point.
I was a math teacher in a past life, so let me give you an example...
Let's say my goal is to get full. I eat a whole turkey and it makes me full. You can say the turkey was sufficient. But I could also eat a whole pie and get full. So the pie is sufficient as well. Neither the turkey nor the pie are necessary to get full, since there are other ways to do it.
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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In your article, you state: "The theory behind copyright, of course, is that such government-granted monopolies are necessary to encourage innovation in a market."
I interpreted this to mean the theory as understood by academics. If you meant to say the theory as it's misrepresented by others, you certainly weren't clear about that.
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
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I'm thinking more along the lines of the Founding Fathers' writings, scholarly articles, law journals, etc.
I'm certain you won't find any real authority arguing that the government-granted monopolies are the ONLY way to incentivize.
I think Mike's just misstating the theory. I'll give him the benefit of the doubt and say that his mistake is probably not intentional.
On the post: Yet Another Example Of Creativity Exploding Without Copyright Law: Football Plays
I've studied a lot of copyright theory, Mike, and I am certain that you are not correct about this. I've NEVER seen it argued that the government-granted monopolies are NECESSARY. The argument is that they are SUFFICIENT. Can you point me to one source of authority to back up your assertion that the theory says such monopolies are sine qua non to innovation? The fact that you think this makes your understanding of copyright theory very suspect, IMO.
On the post: EFF Comes Out, Guns Blazing, In Countersuit Against Righthaven & Stepens Media
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The more I think about it, the more I think it really is just about PR. Adding Stephens Media to the counterclaim gets them that much more media coverage. Think about it. Stephens Media is not a necessary party.
The counterclaim is only to have Democratic Underground's use declared noninfringing. They don't need Stephens Media to be a party to get that declaration. All they need is Righthaven.
Heck, they don't even need to file a countersuit to get the declaration. As I stated above, this is already their defense. The counterclaim is superfluous.
And, good grief, that list of defenses. Half of those don't even pass the laugh test. Again, I think it's all for PR.
If this thing goes to trial, I suspect Democratic Underground might win, but only on the fair use defense. But that'll be all that they need.
I think EFF chose this case because it's one of two or three out of close to 145 Righthaven cases where it's less than the whole article that's been copied. This case has the best chance of winning.
I wonder if they'll defend any of the cases where an entire article was copied.
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