EFF's von Lohmann: YouTube worse than DMCA for fair use

EFF's von Lohmann: YouTube worse than DMCA for fair use

Summary: I passed Jason's post about getting DMCA'd by Warner Music onto Fred von Lohmann at the Electronic Frontier Foundation. You'll recall that Jason and his wife put up on Vimeo a reunion slideshow with several tracks of music and that Warner Music Group promptly filed a DMCA take-down notice.

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I passed Jason's post about getting DMCA'd by Warner Music onto Fred von Lohmann at the Electronic Frontier Foundation. You'll recall that Jason and his wife put up on Vimeo a reunion slideshow with several tracks of music and that Warner Music Group promptly filed a DMCA take-down notice. Fred's initial reaction:

Wow. Warner Music really doesn't know when to quit.

The really sad thing, Fred told me in a telephone interview, is that Warner probably doesn't even object to this use of its content. "Over the past several years we’ve seen fair use become collateral damage in the war against what the studios call piracy," Fred said. "A couple of years ago we objected when Viacom ordered a take-down of a parody of The Colbert Report," he said. Viacom agreed it was fair use and their response was, "When you're fishing, a couple of dolphins sometimes get caught in the net."

Because the DMCA regime is so biased against fair uses, few people would choose to alert the studios as to their existence by filing an opposition to a DMCA take-down notice. Still, DMCA does provide for users to mount lawsuits against copyright holders who wrongly assert infringement. You pretty much need a public lawfirm like EFF to make that happen, though. For instance, EFF is suing Universal over the infamous baby-dancing-to-Prince video. (Unlike most copyright holders, who wind up settling, Universal is taking this case to the mat. And EFF is trying to understand their position. "If they're saying they have a zero-tolerance policy, I think they've broken the law.")

Von Lohmann said he's not aware of a single infringement suit against one of these remix users, but who's to say you won't be the first? In fact, the RIAA litigation against filesharers seems to have a desired impact in that it's made fair-users reluctant to assert their rights against these takedown notices.

But as bad as the DMCA is from a fair-use perspective, the far scarier thing is that the take-down regime is rapidly becoming extra-legal. Exhibit No. 1: YouTube's ContentID system, an almost entirely automated scheme by which apparently infringing content is flagged to copyright owners. While Google promotes the notion that owners are choosing to monetize rather than block user-uploaded content, when it comes to Warner, it seems that the choice is block, block, block.

"Under the current process, we make YouTube aware of WMG content. Their content ID tool then takes down all unlicensed tracks, regardless of how they are used,” said Will Tanous, a spokesman for Warner Music.

On YouTube, you don't even have the weak protections of DMCA; you get exactly what YouTube's terms of service let you have. And the chilling effect remains. If you're afraid of being sued, you're not going to make a stink over something that was "just for fun."

So, we're in a pretty stuck place. Is there any way out? Fred says EFF is pushing for relief on several paths:

  • We’re pressing YouTube to be more protective of fair use. They have quite a bit of leeway to protect user interest. We’re urging them to match both the soundtrack and the videotrack before flagging something as infringing. If they had to match both, Jason’s wife’s video wouldn’t have been removed.
  • We're asking them to take steps to ensure that remixes are protected. If ContentID identifies content from provider X and also from provider B, then that's a tipoff that somebody is remixing content in a way that is probably fair use.
  • We’ve approached some of the studios to open dialog to try to get them to adopt some of these approaches. One major studio has set their ContentID settings so that it won't automatically block anythng unless there's five minutes of contiguous content and both the audio and video tracks are identical.
  • The user community also needs to make itself heard. A way for people to get this taken seriously is to boycott YouTube in favor of another site with better terms. If users would vote with their feet, I think YouTube would change their terms.

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8 comments
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  • you tube?

    You Tube is so yesterday.

    They are blowing themselves up right along with the corporation rent
    seekers.
    gertruded
    • They are blowing themselves up now

      With all the takedown requests that they grant without even LOOKING at the thing in question to make sure that it is even actually a DMCA violation to post it.
      Lerianis
  • RE: EFF's von Lohmann: YouTube worse than DMCA for fair use

    "A way for people to get this taken seriously is to boycott YouTube in favor of another site with better terms."
    I totally agree with this and have already removed all my videos from Youtube. I also no longer search or view videos on Youtube.
    Appreciate EFF's user advocacy.
    bonnie@...
  • RE: EFF's von Lohmann: YouTube worse than DMCA for fair use

    Although I love remixes and support open culture, I don't believe it's fair use to incorporate substantial amounts of video or songs into your own work, even if you mix them somehow. Parody, small snippets, OK, that's fair use.

    Andy Oram
    http://www.praxagora.com/andyo/
    andyorm
    • Fair use

      Hi Andy! Long time...

      So, the question of fair use is a four-factor test:

      1. the purpose and character of your use (transformative?)
      2. the nature of the copyrighted work (creative?)
      3. the amount and substantiality of the portion taken, and
      4. the effect of the use upon the potential market.

      So, it's a balancing test and very fact-driven. You can sort of set up some extreme scenarios where the answer is clear (X takes song, speeds it up, sells it = not fair use; Y takes small bits of different audio and video, combines them into a multimedia thingy, gives away = fair use)

      But everything else is a gray area where the factors have to be balanced. How much of a work you take is but one factor and it's not necessarily more important than the market-impact factor.
      rkoman@...
  • RE: EFF's von Lohmann: YouTube worse than DMCA for fair use

    Is the problem not about 'fair use' but about WMG not getting royalties? It is very messy and confusing.
    So for instance I make a video clip and decide that ACDCs 'Hells Bells' would be a perfect backing track for it, it just works perfectly. I do not expect or intend the video to get more than maybe a handful of hits and am not making it for money.
    If I use 'Hells Bells' from 'Back in Black' (Atlantic label), then I am a dirty rotten scumbag pirate who is stealing music and breaking (copyright) laws.
    If I use 'Hells Bells' from 'Plug Me In' (Sony Entertainment), I am a valued contributer, i.e. if Sony get royalties (maybe a few cents), and spreading ACDCs music.
    But what happens if WMG does a takedown of the Sony version? Does'nt that mean Sony are being deprived of royalties?
    pbohanna@...
  • RE: EFF's von Lohmann: YouTube worse than DMCA for fair use

    I've had vid that was just a band covering a Warner Music tune DMCA'd off YouTube, so it's hard to see how checking for vid as well as audio content would make much difference, if the publishing of a song is sufficient. And it's difficult to see how mere syncing constitutes fair use in most cases.
    wwwhatsup
  • RE: EFF's von Lohmann: YouTube worse than DMCA for fair use

    Music business is dead as we know it... Let them fall from their cloud.
    Jediguardian