I would consider myself to be a law-abiding citizen and as a writer, someone who has respect for copyright laws, particularly as it applies to the written word and major works of media, such as music, television shows and movies. So I completely understand why a company like Time Warner (or even ZDNet's parent company, CBS) would be aggressive in protecting those copyrights, particularly in cases where music videos and TV shows are being uploaded in their entirety to popular video sharing sites, such as YouTube and Vimeo, in high-quality formats. This type of blatant content theft is unnaceptable and the media companies that own this content are perfectly within their rights to have it removed.
That being said, there is also the issue of copyrighted content and what situations constitute Fair Use. One such area of Fair Use I would like to touch on is when it is used within the context of a unique work, such as home movies and video slideshows.
Click on the "Read the rest of this entry" link below for more.
My wife Rachel is a big fan of putting together video slideshows -- she's been particularly adept at doing this for family anniversaries, birthday parties, and gatherings of friends, where she takes a whole bunch of pictures and sets them to music. She likes to use a Windows program called DVD Photo Slideshow to do this. It allows you to string together photos and videos as well as accompanying music with transition effects to produce your own DVDs and MPEG videos for different sites and player formats. Rachel produced one for me last summer for a major barbecue event that I photographed in New York City. If you like meat, you're in for some serious food porn.
Recently, Rachel had a 20-something anniversary reunion of a large group of friends from her synagogue's youth program, and produced a 1-hour video with over 400 photos from the party which was set to thematic music. The list she chose was the following:
You've Got a Friend, James Taylor Glory Days, Bruce Springtsteen Summer of '69, Bryan Adams Like a Virgin, Madonna Scenes from an Italian Restaurant, Billy Joel And We Danced, The Hooters Rebel Yell, Billy Idol Shout, The Isley Brothers Rebel Rebel, David Bowie Stairway to Heaven, Led Zeppelin Last Dance, Donna Summer That's What Friends Are For (LIVE), Dionne Warwick and Friends
It's not exactly what I would call a hot playlist, but hey, what do you expect from a bunch of 40-year-olds. In any case, to easily provide this video to her friends, we encoded it in MPEG4 XVID format and uploaded it to Vimeo.
Having some concerns that uploading it with full quality audio might be too tempting for the piracy fairies, I purposely degraded the audio quality to 48 Kbps monaural so that nobody in their right mind would bother stripping the songs off. It sounded fine for the purposes of watching a slide show, but if you closed your eyes and listened to it on a PC, it was really crappy. But that was entirely the point, and I thought we were within the boundaries of Fair Use since the value of the audio was negligible and the audience -- a whole 250 people -- was relatively small.
Today Rachel recieved a notice from Vimeo that Warner Music Group lodged a complaint about the content in her video, and it was removed from the site:
Dear Rachel Nash Perlow:
This is to notify you that, as a result of a third-party notification by Warner Music Group claiming that the material is infringing, we have removed or disabled access to the material that appeared at http://www.vimeo.com/3591152.
If you believe that your material has been removed or disabled by mistake or misidentification, please provide VIMEO's Copyright Agent with a written counter-notification containing at least the following information (please confirm these requirements with your legal counsel or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. 512(g)(3), for more information):
- a physical or electronic signature (an electronic signature may be signified by writing your first and last name or initials between two forward slashes, e.g., \"/FIRST LAST/\"); - identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; - a statement made under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and - your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which the service provider (Vimeo, LLC) may be found, and that you will accept service of process from the person who provided the original takedown notification or an agent of such person.
You acknowledge that if you fail to comply with all of the aforementioned notice requirements, your counter-notification may not be valid and that VIMEO may ignore such incomplete or inaccurate notices without liability of any kind.
Upon receipt of a properly completed counter-notification, VIMEO will forward a copy to the party who submitted the original claim of copyright infringement and/or such party's legal counsel. Please note that when we send the counter-notification, it will include your personal information. By submitting a counter-notification, you consent to such disclosure. Within ten days, VIMEO may receive notice that the original claimant has filed a court action regarding this matter. If such notice is received, VIMEO will be unable to restore your material. If no notice is received, VIMEO will endeavor to restore your material between 10 and 14 days following receipt of your counter-notification.
Under Section 512(f) of the Copyright Act, 17 U.S.C. 512(f), any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability.
DISCLAIMER: THE INFORMATION PROVIDED ABOVE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. VIMEO PROVIDES THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY, AND RECOMMENDS YOU SEEK INDEPENDENT LEGAL COUNSEL.
Wow. I mean, wow. That Warner Music Group/Time Warner would actually care about some random slide show of 40-somethings getting drunk at a suburban New Jersey synagogue set to 15 and 20-year-old low-quality monaural rendered audio that they happen to have rights to is just extremely sad. Not only is it petty and Draconian to force Vimeo to remove someone's unique works which include Fair Use content, but it's STUPID. I mean, given how crappy the economy is, I can't imagine that anyone who receives such a notice would be compelled to buy any more products from Warner Music Group/Time Warner. In fact, If I was going to be petty and respond in kind, I would do my best to avoid paying to see their movies in theaters and buying any of their music. I'm definitely going to be thinking twice in the future, that much is for certain.
Warner apparently figured out that we were violating their copyrights because we explicitly listed the songs on the video's description page. In retrospect, this was probably dumb for us to have done, because I am sure this was discovered by their legal department using some sort of automated search engine or spider/web crawler. I'm not sure which of the songs are owned by Warner but I assume they cross-checked this against some kind of database of titles or artists.
Surely, Time Warner and other content owners can come to some sort of reasonable agreement with YouTube and Vimeo and other video-sharing sites. One such compromise might be to allow the posters to use the content under Fair Use (significantly reduced quality from source material, etc.) under the conditions that banner advertisements or context sensitive links to purchase the original material accompany the post -- say to a content reseller partner of their choice, such as Amazon.com or iTunes. Not only are you engendering good will to the consumers of your content, but you're also increasing your advertising space. And given how crappy the economy is right now, advertising and good will to your customers means everything.
What say you Warner? Can my wife's suburban 40-something friends have their reunion memories back? Talk Back and Let Me Know.