EFF Sues Universal Music For Getting Home Video Of Kid Dancing Pulled From YouTube

from the DMCA-abuse dept

Earlier this year, the EFF sued Viacom for being overly aggressive in trying to police its copyrighted content on YouTube. Specifically, Viacom had sent a DMCA takedown notice for a parody clip of The Colbert Report that was clearly protected by fair use. After first denying it had sent the takedown notice, Viacom eventually 'fessed up and then settled the case, promising to be much more mindful of not pulling clips that have a clear fair use defense, and also making it easier for those whose videos were wrongly pulled to get them back online. If you thought that others in the entertainment industry might take notice of this and be a bit more careful about things, you'd be wrong apparently.

The EFF has felt the need to step in again, this time suing Universal Music for getting a home video of a little kid dancing pulled from YouTube. The video is only 29-seconds long and is clearly fair use. More importantly, there is simply no way that anyone would claim that this somehow hurt the commercial value of the song (well, I guess Universal Music implicitly was claiming exactly that). No one is going to use this 29-second clip as a substitute for getting the actual song. In fact, if anything, the video might encourage people to go out and find the song to purchase. Also amusing, of course, is that the song in question is by Prince, who's been in the news quite a bit lately for having a much better understanding of how the music industry works than those who run the record labels. Either way, it appears that the EFF is building up a number of such DMCA-abuse cases -- and it seems likely that they'll eventually use these to demonstrate the problems of the DMCA.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    SailorRipley, Jul 26th, 2007 @ 9:13am

    I don't understand why some seriously hefty fines aren't put in place to discourage abuse...

    oh duh, I forgot, the MAFIAA practically owns everyone in a position to do anything about this

     

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    Anonymous Coward, Jul 26th, 2007 @ 9:13am

    Really? Fair use. That is pretty broad. If a movie or TV series has to get a sync license why does this exclude a youtube video. Youtube is going to make money off it. That is not fair use. The only reason Prince's idea is working is because he is already famous. Who is going to pay to hype up for new artists. This is simple business principles.

     

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      Mike (profile), Jul 26th, 2007 @ 9:21am

      Re:

      Really? Fair use. That is pretty broad. If a movie or TV series has to get a sync license why does this exclude a youtube video.

      First off, this rule for movies and TV shows has some serious holes in it, but that's another discussion for another day.

      Can you imagine a world where you cannot record a video that has any copyright content in it without first getting a license? You've just killed off all home videos, home recording and photos. Nice work.

      Youtube is going to make money off it. That is not fair use.

      That has nothing to do with it. YouTube didn't produce the video. This woman did. You can't say that it's not fair use if SOMEONE makes money off of it. That's like saying that a news caster can't use a clip (which is fair use) because the news program makes money. Saying that if anyone anywhere in the value chain makes money there's no fair use means that there's no fair use anywhere.

      The only reason Prince's idea is working is because he is already famous. Who is going to pay to hype up for new artists. This is simple business principles.

      You seem to have a different set of business principles than I do. What greatly amuses me is that every time we show an example of a new or independent artist making use of this type of business model we're told "well, sure, maybe that works for some new or independent artist, but not for the big stars." Then we show a big star doing the same thing and someone says "well, sure, that works for a big star, but not for the small guy."

      It works equally well, just in different ways. A small or independent artist can give away their music and encourage fans to share it to build up a much larger audience, building up a much larger fanbase who will obsessively attend larger and larger concerts as well as be willing to pay more for merchandise and access to the artist. That works for both big and small. Those are the simple business principles I follow...

       

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      Casper, Jul 26th, 2007 @ 9:24am

      Re:

      Really? Fair use. That is pretty broad. If a movie or TV series has to get a sync license why does this exclude a youtube video. Youtube is going to make money off it. That is not fair use. The only reason Prince's idea is working is because he is already famous. Who is going to pay to hype up for new artists. This is simple business principles.

      I don't understand what you are trying to convey with your statement. Are you claiming that a video on YouTube is not fair use? If that's the case, then you are way off base. It's not the media that the video is displayed on that makes it fair use, but rather the content. A child dancing to Prince, shot as a home video, can hardly be considered anything other then fair use...

       

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      Anonymous Coward, Jul 26th, 2007 @ 9:51am

      Re:

      A lot of people would pay to hype up new artists, cause surprisingly there's a large amount of people that don't only listen to big names. a lot of people want to listen to new stuff because a lot of people are bored with the same old crap that we get from most big names.

      i'd gladly buy a subscription to a newspaper if they offered new artists and sounds on a regular basis.

      if you'd only want to listen to pop music, then you're obviously not really a true music fan. good music doesn't only come from big names. a lot of people have even just stopped looking there.

       

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        Anonymous Coward, Jul 26th, 2007 @ 10:36am

        Re: Re:


        if you'd only want to listen to pop music, then you're obviously not really a true music fan.


        I have to disagree with you there. Well not disagree but get more specific.

        if you'd only want to listen to today's pop music, then you're obviously not really a true music fan.

        I still occasionally still listen to pop music from the 80s and think its a lot better than today's pop. I'll take Madonna (from her Like a Virgin days), Micheal Jackson (say what you want about sexual history but he has earned his title of the King of Pop), and Cindy Lauper over the Brittney Spears, Hilary Duff, and boy band members gone solo.

         

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    Anonymous Coward, Jul 26th, 2007 @ 9:29am

    Give me one example of someone who no one had heard of and had not released an album, and is now famous. Hate to break it to you, but everytime someone makes a video, and puts a song on a home video that is illegal. That is the way the copyright is. Just because you think it would ruin something does not change reality. Songwriters still have to make money. Also that is not fair use to use a news clip someone is getting paid whether it is a work for hire, or a licensing fee. Have some common sense, camera men do not go out and shoot stuff for free. People can give permission to use there content for free, but usually money is changing hands. Legally, youtube is responsible for the content posted on their site that is in common law.

     

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      Nasty Old Geezer, Jul 26th, 2007 @ 9:35am

      Re:

      Roll up your Astroturf and go back to Hollywood.

      Don't give any legal opinions unless you are admitted to the bar somewhere either.

      IMO, the **AA and member companies are trying to eliminate Fair Use and replace it with Pay-Per-View, even for CD and DVD purchases.

       

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        Anonymous Poster, Jul 26th, 2007 @ 10:10am

        Re: Pay-Per-View

        And they expect every consumer to just fall in line with their wishes or OMFG LAWSUIT~!

        It's nice to know people aren't taking the RIAA's complete bullshit (pardon the language) lying down.

         

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      Anonymous Coward, Jul 26th, 2007 @ 9:48am

      Re: #5

      "Give me one example of someone who no one had heard of and had not released an album, and is now famous."

      -That comment makes no sense.

      "Hate to break it to you, but everytime someone makes a video, and puts a song on a home video that is illegal."

      -Hate to break it to you, thats not true. Fair use allows copyrighted material to appear in other works under certain rules.

      "Legally, youtube is responsible for the content posted on their site that is in common law."

      -No. Its not in common law. Law actually states it isn't.


      One, you sound uneducated due to your inability to string ideas together in a coherent fashion. This doesn't prove your wrong, but it brings into doubt your ability to understand copyright. If you watch the news of an anchor telling a story about a guy who was shot in front of mcdonalds and the guy is on the scene, does the news have to blank out the micky d's sign? do they need to pay for it? No. Guess what though. its copyrighted. Music & Video isn't the only thing with a copyright. Fair use allows for stuff like the kid dancing. Its *clearly* protected by fair use. Just like the dancing baby way back when.

      Also, EVERYONE, *PLEASE* stop saying that just because someone makes money off of someone else's work, that it must be against fair use. You're allowed to make money as long as you abide by fair use policy. the only way you'd make money AND follow the policy is if you're obviously offering some other form of product (entertainment, service, etc.) that isn't available in the original work and therefore you're allowed to make money off of that.

      If I sell a book second-hand, I don't have to continue giving money to the author or publisher.

      You people with music and video seem to think that anytime money changes hands and copyrighted work is involved, that the content owner must be involved in every single level. they don't have to be and more to the point they shouldn't be, yet they're fighting for that. its ridiculous. stop thinking that they should get paid multiple times for the same amount of work.

       

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      Mike (profile), Jul 26th, 2007 @ 10:59am

      Re:

      Give me one example of someone who no one had heard of and had not released an album, and is now famous.

      There are plenty of examples. The Arctic Monkeys are a big one.

      Hate to break it to you, but everytime someone makes a video, and puts a song on a home video that is illegal.

      That's not what the law or the courts have said. I'd like to see you cite some evidence of your claim, because there's plenty of evidence that says the exact opposite.

      Also that is not fair use to use a news clip someone is getting paid whether it is a work for hire, or a licensing fee.

      In my original comment, I had meant a clip for something like a movie review -- which is fair use. Criticism is an exception that is a fair use defense -- even for commercial critics. You seem to misunderstand fair use if you think that if anyone in the value chain makes money that it's not fair use. That's not how fair use works.

      Have some common sense, camera men do not go out and shoot stuff for free.

      I never said they did. I'm not sure what this has to do with anything.

      Legally, youtube is responsible for the content posted on their site that is in common law.

      Actually, the law is pretty clear that this is not the case. You have read the DMCA, right? You do understand the DMCA section that reads: "A service provider shall not be liable..." right?

       

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        Chronno S. Trigger, Jul 26th, 2007 @ 12:15pm

        Re: Re:

        The Arctic Monkeys are great. I was thinking Shiny Toy Guns as another example. They let people listen to their music for free on their myspace page, and their all over Alt Nation on Sirius.

        Correct me if I'm wrong, but aren't you legally allowed to use up to 30sec of music and have it fall under fair use? I can think of a little anecdotal evidence to back this up. On one episode of the Simpson's they have someone singing "Home on the Range" and in the commentary they say that if they sang one more word from that song they would have had to pay for it. So if this video was 29sec...

         

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        YouKnowNothing, Jul 27th, 2007 @ 6:29am

        Re: Re:

        Nice, Mike. Total pwnage!

         

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      Old Guy, Jul 26th, 2007 @ 12:03pm

      Re:

      There are an amazing amount of people who have never released albums and become famous. I'd tell you who they are but you've probably never heard of them.

       

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      ehrichweiss, Jul 26th, 2007 @ 1:14pm

      Re:

      "Legally, youtube is responsible for the content posted on their site that is in common law."

      You obviously know absolutely nothing about law, common or otherwise. There are several provisions in recent law that exonerate youtube from any legal responsibility other than to take down content when given notice. The Communications Decency Act clearly states that a site that doesn't actively moderate its users' content is not responsible for that content. They could also claim "common carrier" status which, again, removes the legal responsibility from the site/ISP.

      And you have a ton to learn about Fair Use, so much that I can't even begin to point out your flaws.

       

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    Anonymous Coward, Jul 26th, 2007 @ 9:35am

    You people do not know anything about copyright law. You just want something for nothing. If you really want to show the record companies you are sick of them stop buying music, and stop downloading (for free or paying). That sends the message they need.

     

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      Anonymous Coward, Jul 26th, 2007 @ 9:55am

      Re:

      Personally, I can't live without music.

      Music isn't just any ol' luxury. Great music is a work of art. Its a source of inspiration and joy. Telling people to cut it off completely is ridiculous. People can't even quit smoking sometimes when they know its bad for you. Here's something that can be good for the soul and you're asking people to quit cold turkey.

      Boycotts are not the only form of rebellion. You have a voice other than the ability to just be silent. Instead, let yourself be heard. if enough people scream, they cannot ignore you. its true that if enough people ignore them, the same can be said, but i'd much rather try the method that doesn't require me to give up listening to music.

       

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      RonM, Jul 26th, 2007 @ 3:28pm

      Re: Record Companies

      That is exactly what I do, no CD purchases, no video purchases, and no downloading. I am sick of them attacking the concepts that sell music for them and holding back technology by pushing DRM the way they have done.

       

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    Chris, Jul 26th, 2007 @ 10:17am

    My response to #2 and #5

    I love stupid people. It's so amusing. They try to make themselves sound smart by throwing the idea they hold dear into everyone else's face about how well they think they know copyright laws. Go ahead and think that everything is not fair use. Bring those people to court, you don't need that money anyway. I love how people make themselves look stupid doing it. But I have a better idea yet, take yourselves out of the gene pool all together. Do the world a favor.


    Whats next, are you guys going to tell me that I can't make a video of my friends and put it up on youtube because it's not fair use due to the fact that it's showing Miller or Budweiser products? Or how about if I sing karaoke, I should have to pay royalties to the artist? Some people I hear should never be allowed to those functions ever, but I hate to shake ya but both are covered under fair use.


    And lastly one band that is getting bigger by giving away free music. The Vic Ferrari Band. They started out as nothing and they are getting bigger. They may not be there in the big time yet but I would say it's close. How do you think some of these small bands made it big? They all had to start some where. The Union Underground is another. I'm sure if you go into the past of all the bands they have done it in some way. Korn is another example. You said name one, I named three.

     

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    Casper, Jul 26th, 2007 @ 10:37am

    Anyone else think it's funny this Anonymous Coward won't even tie his name to his posts, can't use the thread feature, and seems to have absolutely no idea to as how the law is actually stated? Seriously, if you believed you had something relevant to say, you would not be hiding behind AC and you would take the time to write coherent paragraphs...

    This whole thing is very simple. Fair use says that the video was legal, therefore the video was legal. You can not impose your morality views on the law to decide what is legal and illegal. The law is the law, somethings that are moral are not legal and some things that are legal are not moral. No matter what, the law is what is enforced, not your view of what is moral or immoral.

     

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      Sanguine Dream, Jul 26th, 2007 @ 10:57am

      Re:


      You can not impose your morality views on the law to decide what is legal and illegal. The law is the law, somethings that are moral are not legal and some things that are legal are not moral. No matter what, the law is what is enforced, not your view of what is moral or immoral.


      Now if only you could get those record execs to realize that. But who needs morality when you can literally buy the laws you want?

       

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    Anonymous Coward, Jul 26th, 2007 @ 10:54am

    Seems to be an awfull lot of anonymous comments on this thread ,probably because all know they are too emotional to say anything coherent. If you all calm down perhaps some actual understandng will result.

     

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    Anonymous Coward, Jul 26th, 2007 @ 1:03pm

    You are all right and I am an idiot. Obviously I need to hide behide a AC like one of people said. Blah blah blah. I was honestly just playing a terrible Devil's Advocate. Apparently really terrible.

     

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      Casper, Jul 26th, 2007 @ 1:32pm

      Re:

      You are all right and I am an idiot. Obviously I need to hide behide a AC like one of people said. Blah blah blah. I was honestly just playing a terrible Devil's Advocate. Apparently really terrible.

      First of all, please be coherent in what you post. It took me two tries to decipher what you were trying to say. The problem with your position, whether it be your own or assumed for the sake of argument, is that you lack information. Everything you submitted was either wrong or lacking any substance. If you wanted to debate the legality of the situation, you first need to find out if you even have a case for doing so.

       

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    Mojo, Jul 26th, 2007 @ 3:05pm

    Fair use

    Of course you can make money and still fall under fair use... parody is protected under fair use. Look at "Thumb Wars"- it's obviously a parody of Star Wars, and it makes money because it is a parody of Star Wars, but they don't have to pay Lucasfilm because it's protected by fair use.

     

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