Why Won't Universal Music Let You See The 20/20 Report From 1980 About How The Music Industry Is Dying?

from the the-sky-is-falling! dept

Here's one for the "sky is falling" folks, who insist the music industry is dying. Orin Kerr, at the Volokh Conspiracy points us to an episode of the TV magazine show 20/20 all about how the music industry is in trouble... way back in 1980. What's amusing is that the story is the same. Early on, you see Joe Smith, the President of Elektra-Asylum records making a statement that might sound familiar:
"Records, you don't have to buy to hear music. There's sensational equipment out there. There's great FM radio. There's enormous amounts of music out there, without having to buy a record. Counterfeiting, home-taping, and the failure of major artists to deliver records on some kind of regular basis."
It's really funny to watch. After complaining about companies shutting down, layoffs and fights against counterfeiters, the report points out that the industry is betting on video laser discs to bring back the profits.
Now, that's only the first half of the report. I had actually opened both videos up a while ago and had them both open in browser windows, but just as I was writing up this post, I hit reload on the videos... and the second one is now being blocked due to a copyright claim from Universal Music. This is bizarre, for a variety of reasons. First, the video was definitely up and working just last week... and this is a video that was uploaded in 2006. So... um... how come, in the last week, Universal suddenly decided to block what's clearly fair use of the video? Could it be that Universal Music doesn't want you seeing a report that shows how it has overreacted historically to changes in the industry? Hopefully, the guy who uploaded it will file a counternotice...


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    Hulser (profile), Oct 18th, 2010 @ 9:25am

    I want my MTV

    the report points out that the industry is betting on video laser discs to bring back the profits.

    The funny thing is that the revolutionary (as of the time of the 20/20 report) combination of music and video actually did breath new life into the music industry, just not in the way that they expected. In what is a typical response by big music, they thought that they could directly sell music videos to the public, whereas what turned out to be the working model is using music videos as a promotional tool to sell more records.

    "Those who cannot remember the past are condemned to repeat it."
    - George Santayana

     

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    Anonymous Coward, Oct 18th, 2010 @ 9:35am

    First, the video was definitely up and working just last week... and this is a video that was uploaded in 2006. So... um... how come, in the last week, Universal suddenly decided to block what's clearly fair use of the video?

    Do you think everything is "clearly fair use"? It seems like it.

    Can you provide us with analysis of why this is clearly fair use? Thanks.

     

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      paperbag (profile), Oct 18th, 2010 @ 9:41am

      Re:

      Why? It's not like you will suddenly agree with Mike anyway.
      Old saying goes: If you have to ask, you'll never know.

       

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        Anonymous Coward, Oct 18th, 2010 @ 9:51am

        Re: Re:

        I just wonder if he can make the case that it's "clearly fair use." I doubt he can. And if he can't, maybe he shouldn't go around claiming such things.

         

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          ChurchHatesTucker (profile), Oct 18th, 2010 @ 10:05am

          Re: Re: Re:

          How is it not fair use?

           

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            Anonymous Coward, Oct 18th, 2010 @ 10:14am

            Re: Re: Re: Re:

            Mike made the claim. He should be the one to back it up with analysis.

             

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              The Infamous Joe (profile), Oct 18th, 2010 @ 10:23am

              Re: Re: Re: Re: Re:

              Several people have already answered your question, Light-blue-square-with-phalanges AC, so gracefully admit you didn't understand and let's move on, shall we?

               

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                Anonymous Coward, Oct 18th, 2010 @ 10:26am

                Re: Re: Re: Re: Re: Re:

                No one has given a full analysis of the fair use issue. And that's not the point. As I've said several times, I want to hear Mike's analysis, not other people's. What's so difficult to understand about that? I especially curious how he knows it's "clearly fair use" given the fact that he's never seen the video.

                 

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                  Anonymous Coward, Oct 18th, 2010 @ 10:30am

                  Re: Re: Re: Re: Re: Re: Re:

                  Well, I'd like Mike to spoon-feed me candy (yes, I eat candy with a spoon). And I'm going to keep spamming the comments until he does.

                  And I don't care that Mike lives in another continent either. I want my candy nooooowwwwww!!1111oneoneone

                   

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                  MrWilson, Oct 18th, 2010 @ 12:00pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Can you prove Mike has never seen the video?

                  You're assuming that because the video was taken down, it was taken down before he was able to see it.

                  He stated, "I had actually opened both videos up a while ago and had them both open in browser windows, but just as I was writing up this post, I hit reload on the videos... and the second one is now being blocked due to a copyright claim from Universal Music."

                  You're assuming that this means he hadn't watched it before it was blocked.

                  However, he later states, "the video was definitely up and working just last week..." which indicates that he at least checked the status of the video and may have watched it already. He doesn't say so, so I can't conclude he did, but I also can't assume based on his statements that he didn't.

                  So your claim that it's a "fact that he's never seen the video," is not supported by the evidence available.

                  I just wonder if you can prove that he's never seen the video. I doubt you can, given the available statements. And if you can't, maybe you shouldn't go around claiming such things.

                   

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                  Mike Masnick (profile), Oct 18th, 2010 @ 12:53pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I especially curious how he knows it's "clearly fair use" given the fact that he's never seen the video.

                  I did see the video. It's only when I hit reload that I realized it was no longer there. Nice try, though, AJ.

                   

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                  Anonymous Coward, Oct 19th, 2010 @ 7:35pm

                  This is a discussion forum

                  and anyone can participate. Since you clearly can't appreciate that, I suggest you found your own forum and invite only Mike to join and hash it out with him there.

                  So long and thanks for all the posts.

                   

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                  GreyGeek, Oct 19th, 2010 @ 7:58pm

                  Re: Re: Re: Re: Re: Re: Re: Fair Use

                  It is OBVIOUS that Universal (IF it is indeed the copyright holder -- claiming to be doesn't make it so), not having sued ABC following the 1980 show, approved of the 2020 report BECAUSE it mimed their claim that the recording industry was in trouble because the public had access to sources of music which RIAA members did not meter, i.e., they couldn't erect a tollbooth at the end of that driveway.

                  Now that history has proven the 1980 claim to be bogus, and the 1980 claim is in no way different from their current bogus claim that the Internet is killing their business, Universal issued a DMCA take down notice to YouTube knowing that the poster doesn't have the financial clout to fight an RIAA bully in court. But, when people stand up and fight the RIAA and its members the RIAA loses: http://lmgtfy.com/?q=riaa+lost+cases

                  The RIAA members GREED is killing their own business. They rape and plunder both ends of their business model, exploiting the artists and over-charging the consumers.

                   

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              Jay (profile), Oct 18th, 2010 @ 10:24am

              Re: Re: Re: Re: Re:

              And you should be able to refute it with the demand for proof?

              Hardly seems fair. Seems like someone should Google "fair use"

               

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              ChurchHatesTucker (profile), Oct 18th, 2010 @ 10:26am

              Re: Re: Re: Re: Re:

              "Mike made the claim. He should be the one to back it up with analysis."

              You're also making a claim, and I see no analysis.

               

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                Anonymous Coward, Oct 18th, 2010 @ 10:30am

                Re: Re: Re: Re: Re: Re:

                Can't you guys let Mike make his own arguments? Mike stated that it was "clearly fair use." I simply wonder if he (Mike, not you, and not anyone else) can back that up. I seriously doubt he can.

                 

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                  ChurchHatesTucker (profile), Oct 18th, 2010 @ 4:44pm

                  Re: Re: Re: Re: Re: Re: Re:

                  You've had the answer a dozen times over. Somehow I doubt that Mike stating it a thirteenth time is going to clarify things for you.

                   

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                    Anonymous Coward, Oct 18th, 2010 @ 4:48pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I know you must defend Mike at all costs, CHT, but with all due respect, no one's answered the question. Why does UMG not have any rights in their video clips vis-a-vis the person who posted the video on youtube? It's a very good question, and no one has answered it. Can you add anything substantive to the debate? I doubt it.

                     

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                      ChurchHatesTucker (profile), Oct 19th, 2010 @ 8:27am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Y'know, were I Mike I'd avoid your purposeful obtuseness too.

                      "I know you must defend Mike at all costs, CHT..."

                      We've already demonstrated that you don't know as much as you think you do. No need to keep proving that point.

                       

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              JEDIDIAH, Oct 19th, 2010 @ 9:00am

              Moldy Oldies

              Nevermind "fair use". This recording should be in the public domain by now. It is 30 years old.

               

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      Hulser (profile), Oct 18th, 2010 @ 9:44am

      Re:

      Can you provide us with analysis of why this is clearly fair use

      Since Universal Music is the one who submitted the takedown request, it's my guess is that the "problem" is the clips of music videos, not the 20/20 story itself. If this is the case, I would think that they fall under fair use because they're rather short, they're used to support a news story, and they wouldn't act as a replacement for purchasing the respective products. If I'm a Kate Bush fan, I'm not going to be watching the clip for a 15 second snippet of one of her videos instead of buying the album.

      Can you provide a reason for why you think this is not fair use?

       

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        Anonymous Coward, Oct 18th, 2010 @ 9:49am

        Re: Re:

        I can see your argument if you're talking about 20/20 using the clips, although I suspect they were licensed. Either way, that doesn't make it fair use for someone else to post the whole video on youtube.

        I'll wait for Mike's analysis. He said it's "clearly fair use" so it should be easy for him to back that up.

         

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          The Infamous Joe (profile), Oct 18th, 2010 @ 9:56am

          Re: Re: Re:

          I can see your argument if you're talking about 20/20 using the clips

          You missed the most important part of Hulser's comment. Universal didn't make the 20/20 episode, but it issued the DCMA takedown. Since the only thing Universal would be able to legitimately issue the notice for would be the music videos used in the 20/20 episode, the statement "clearly fair use" refers to the music videos, not the 20/20 episode.

           

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          Hulser (profile), Oct 18th, 2010 @ 11:53am

          Re: Re: Re:

          I suspect they were licensed

          I suspect that the video clips were licensed, but not because there was a legal obligation to do so, but as insurance against frivolous copyright infringement claims. 20/20's usage of those clips was fair use. Someone posting those same clips would equally be fair use. The only question in my mind is if posting the entire 20/20 segment is fair use. But even if it isn't, it's not a concern of Universal Music. They're a third party to any infringment of the 20/20 content.

           

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        Torinir (profile), Oct 18th, 2010 @ 9:50am

        Re: Re:

        Correct on all parts. The only ones who would have a valid cause to DMCA the video are ABC and Disney (ABC's parent company).

         

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      Anonymous Coward, Oct 18th, 2010 @ 9:45am

      Re:

      It's a news piece. From 1980.

      Keeping/showing an historical record isn't fair use?

       

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        Anonymous Coward, Oct 18th, 2010 @ 9:52am

        Re: Re:

        News programs from the 80's are copyrighted, no?

         

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          Ima Fish (profile), Oct 18th, 2010 @ 9:57am

          Re: Re: Re:

          Are you saying that Universal Music holds the copyright to 20/20? No, you're not saying that, because that's not true. (If you are saying that, you're an idiot.)

          But that particular episode of 20/20 might have featured some music, and that music might be covered by copyrights held by Universal.

          However, I highly doubt the program featured full and complete songs. If it did, Universal would have sued ABC a long time ago. If the program featured any music at all, it most likely just included snippets of songs. If that's the case, then a strong fair use exists.

           

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            Anonymous Coward, Oct 18th, 2010 @ 10:17am

            Re: Re: Re: Re:

            Did 20/20 license those clips, or did they just use them thinking they were fair use?

             

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              Anonymous Coward, Oct 18th, 2010 @ 10:25am

              Re: Re: Re: Re: Re:

              But this begs the question: why is Universal sending take-down notices to youtube instead of suing the crap of the ones that originally infringed - ABC. Yes, the youtube video had the infringing content, but only because the infringing content was PUT THERE BY ABC. In my opinion, they should target the original moron first (ABC), then make them clean up the mess they caused.

              This, of course, if Universal's intentions are to enforce their copyrights and not just bully a piece of history out of existence.

               

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                Anonymous Coward, Oct 20th, 2010 @ 12:53am

                Re: Re: Re: Re: Re: Re:

                *** QUOTE **********************************
                This, of course, if Universal's intentions are to enforce their copyrights and not just bully a piece of history out of existence.
                ***********************************************

                You mean like what Pastor Melissa Scott is doing to the life work of Dr. Gene Scott, by constantly sending DMCA take-down notices to YouTube every time someone posts one of his tapes? And refusing to sell any of it ever since he died and she started to control the copyright?

                 

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              The Infamous Joe (profile), Oct 18th, 2010 @ 10:25am

              Re: Re: Re: Re: Re:

              Hold on, my brother is a time-traveling telepath, I'll ask him. (With my mind, of course!)

               

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              Anonymous Coward, Oct 18th, 2010 @ 10:30am

              Re: Re: Re: Re: Re:

              Go away corporate shill. Your stupidity may be infectious and I just got over a nasty cold.

               

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                Anonymous Coward, Oct 18th, 2010 @ 10:41am

                Re: Re: Re: Re: Re: Re:

                I just came down with a cold myself. Maybe I got it from you?

                 

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                  Free Capitalist (profile), Oct 18th, 2010 @ 11:25am

                  Re: Re: Re: Re: Re: Re: Re:

                  I just came down with a cold myself. Maybe I got it from you?


                  Glen Beck?

                  Either UMG or Glen Beck... not sure yet.

                  The problem with fair use is there has been no clear definition of fair use since fair use was codified in in the Copyright Act 1976. It's one of the inherent problems with copyright law as it stands today.

                  Let me help you through the legal experience: If you have the money.. it's fair use. Otherwise, bend over.

                   

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              Anonymous Coward, Oct 18th, 2010 @ 10:30am

              Re: Re: Re: Re: Re:

              Then their beef should be with ABC/Disney, not the YouTube posting. If they filed suit against ABC/Disney it would make sense, for them to file a takedown on this. The more important point is that watching the YouTube clip or the 20/20 episode does not directly cause people to not buy the associated music (in some sense it could increase sales by people being reminded of some classic music they want). Fair use shouldn't be viewed as a defense, but a matter of fact until proven otherwise (sort of like free speech).

               

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              Mike Masnick (profile), Oct 18th, 2010 @ 12:56pm

              Re: Re: Re: Re: Re:

              Did 20/20 license those clips, or did they just use them thinking they were fair use?

              It's unlikely that 20/20 licensed the clips. As a news show reporting on the industry, it's rare for programs to license clips like that. In 1980, perhaps the situation was different, but given the state of the law at the time, and similar situations, it was rare for news programs to license clips like that.

               

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          Anonymous Coward, Oct 18th, 2010 @ 10:18am

          Re: Re: Re:

          Maybe it would help the discussion if we made a list of what is/should be considered fair use. I'll give it a go:

          - Videos of news or historically significant facts should be fair use (give it a grace period if you want);
          - Small clips (30 seconds max?) of songs or movies in the context of a documentary, news piece or opinion piece (such as reviews) should be fair use.

          I can't think of others right now. Maybe you'd like to contribute?

           

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            Anonymous Coward, Oct 18th, 2010 @ 10:40am

            Re: Re: Re: Re:

            I'm all for there clearer guideposts for what's fair use and what isn't. That's a great idea.

            As soon as someone claims something is "clearly fair use," I know they can't back it up. There is no clear fair use. That's the problem.

             

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              Anonymous Coward, Oct 18th, 2010 @ 10:46am

              Re: Re: Re: Re: Re:

              Ok ok ok. So you problem is the "clearly" part, not the "fair use" part? Of course the rules for fair use are not clear! Because that benefits the copyright holders so they can bring down content at will, even if they are - as far as common sense goes - fair use.

              Perhaps that was what Mike meant. Common sense would dictate that "that" was fair use. But, as we know, common sense isn't as common as we would expect (as you so conclusively are proving).

               

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                Anonymous Coward, Oct 18th, 2010 @ 10:49am

                Re: Re: Re: Re: Re: Re:

                Yes, my beef is with the word "clearly." I'm usually a "balancing test" kind of guy, but for fair use, maybe "bright line" is the way to go.

                 

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                Anonymous Coward, Oct 18th, 2010 @ 10:51am

                Re: Re: Re: Re: Re: Re:

                And just to clear it up, I don't mean it to be a slight on Mike that I don't think he could back it up. I just think there's nothing "clear" about it and it would be nice if there were.

                 

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                  Anonymous Coward, Oct 18th, 2010 @ 11:05am

                  Re: Re: Re: Re: Re: Re: Re:

                  I blame copyright laws.

                   

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                  The Infamous Joe (profile), Oct 18th, 2010 @ 11:20am

                  Re: Re: Re: Re: Re: Re: Re:

                  So, you think that it's *not* clear fair use when a news show uses a clip of something when discussing it?

                  So, every news show on the planet *might* be committing copyright infringement and no one has noticed until now and they chose to bring down a 20 year old 20/20 episode first?

                  Does that really seem likely to you?

                   

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      Mike Masnick (profile), Oct 18th, 2010 @ 12:52pm

      Re:

      Can you provide us with analysis of why this is clearly fair use? Thanks.

      Ah, now that we know you're really Average_Joe, no, I will not respond to you on this question. It's easy to -- and others have, but I told you in the past that after you abused the comments here that I would no longer respond to your childish "Mike must answer me" challenges. I'm not your employee, and I don't owe you anything -- especially when you have proven so consistently childish in your attacks on me.

      By the way, why did you stop using your username? Realize that you had made a fool of yourself? It's pretty silly especially when you point to your own "earlier comment" in this thread that reveals who you are.

       

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        Anonymous Coward, Oct 18th, 2010 @ 1:06pm

        Re: Re:

        So you can't back up your claim. No surprise there.

         

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          Mike Masnick (profile), Oct 18th, 2010 @ 1:37pm

          Re: Re: Re:

          So you can't back up your claim. No surprise there.


          I can and did to another commenter. And I did it before you posted. I simply said I will not respond to Average_Joe's childish antics and footstomping.

           

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            Anonymous Coward, Oct 18th, 2010 @ 1:49pm

            Re: Re: Re: Re:

            You still haven't explained why it's fair use for the person who reposted it on youtube.

             

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              Mike Masnick (profile), Oct 18th, 2010 @ 4:24pm

              Re: Re: Re: Re: Re:

              You still haven't explained why it's fair use for the person who reposted it on youtube.


              Never claimed it was. But UMG cannot issue a takedown on behalf of 20/20. That's a violation of the DMCA's requirement that the person issuing the takedown holds the copyright in question.

               

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                Anonymous Coward, Oct 18th, 2010 @ 4:44pm

                Re: Re: Re: Re: Re: Re:

                Never claimed it was. But UMG cannot issue a takedown on behalf of 20/20. That's a violation of the DMCA's requirement that the person issuing the takedown holds the copyright in question.

                Huh? Doesn't UMG own the copyright in those clips?

                Just because 20/20 presumably made fair use of the clips doesn't mean that UMG lost their copyright in them vis-a-vis the youtube poster who presumably used them unfairly.

                I know your trying to weasel your way out of admitting you were wrong, so I don't expect an honest answer, Mike.

                 

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                  Anonymous Coward, Oct 18th, 2010 @ 4:55pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "Just because 20/20 presumably made fair use of the clips doesn't mean that UMG lost their copyright in them vis-a-vis the youtube poster who presumably used them unfairly."

                  So why is it fair use for 20/20 to use it but not the poster? Does fair use only apply to big corporations when it benefits them?

                   

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                    Anonymous Coward, Oct 18th, 2010 @ 4:58pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I know, I know. Fair use only applies when the message helps the big corporate agenda. At the time 20/20 made the video, it was fair use because it was thought to help the big corporate agenda. But in retrospect, posting that video only hurts the big corporate agenda and so it's not fair use. Fair use only applies when it's beneficial to big corporations, otherwise it does not apply.

                     

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                      Anonymous Coward, Oct 18th, 2010 @ 5:08pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I know, I know. Fair use only applies when the message helps the big corporate agenda. At the time 20/20 made the video, it was fair use because it was thought to help the big corporate agenda. But in retrospect, posting that video only hurts the big corporate agenda and so it's not fair use. Fair use only applies when it's beneficial to big corporations, otherwise it does not apply.

                      Fair use applies to individuals and corporations alike. You sound like an internet crazy person. Do you have a tinfoil hat?

                       

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                        Anonymous Coward, Oct 18th, 2010 @ 5:12pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "Fair use applies to individuals and corporations alike."

                        So then why wouldn't be fair use for the poster and not for 20/20. Why is it that, now that it's all of a sudden being used to criticize the position that 20/20 and the big corporations behind it, it's no longer fair use.

                         

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                        Anonymous Coward, Oct 18th, 2010 @ 5:15pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "You sound like an internet crazy person."

                        No, I'm just pointing out the conclusion that your illogical argument suggests.

                        If fair use applies equally to individuals as it does to corporations then why are you arguing for an unequal use of it?

                         

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                        Anonymous Coward, Oct 18th, 2010 @ 5:17pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "Fair use applies to individuals and corporations alike."

                        "Just because 20/20 presumably made fair use of the clips doesn't mean that UMG lost their copyright in them vis-a-vis the youtube poster who presumably used them unfairly."

                        See, on the one hand it is argued that fair use applies to everyone alike. On the other hand, it is argued that it applies to 20/20 but not to the youtube poster alike. Which is it?

                         

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                        Anonymous Coward, Oct 18th, 2010 @ 5:41pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "You sound like an internet crazy person."

                        I know, our laws are so cynical that repeating them makes someone sound crazy.

                        "Do you have a tinfoil hat?"

                        Yes, it is my tin foil hat that tells me copy protection lasts 95+ years. Oh wait....

                         

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                    Anonymous Coward, Oct 18th, 2010 @ 5:06pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    So why is it fair use for 20/20 to use it but not the poster? Does fair use only apply to big corporations when it benefits them?

                    Fair use is determined on a case-by-case basis. 20/20's use is different than the youtube poster's use. Why would think they were the same?

                     

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                      Anonymous Coward, Oct 18th, 2010 @ 5:10pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "20/20's use is different than the youtube poster's use. Why would think they were the same?"

                      Yes, I already mentioned the difference. The posters use is to show how wrong the big corporations were and that's not good for the big corporate agenda. So of course it's not fair use. 20/20's use was to serve the corporate agenda so of it's fair use.

                      The standard required to determine its use is whose agenda does it serve. Does it serve the big corporate agenda? Then it's fair use. Otherwise, it's not.

                       

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                      Anonymous Coward, Oct 18th, 2010 @ 5:57pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "Fair use is determined on a case-by-case basis."

                      A case by case basis with respect to the content being used (and to a lesser degree, with respect to the purpose of its use), not a case by case basis with respect to who's using the content.

                      A case by case basis as in clip A maybe fair use but not clip B. but if clip A is fair use for 20/20 then it's most likely the case for the youtube poster as well because the clip itself is fair use. In the case of clip B, clip B may not be fair use for neither 20/20 nor for the Youtube poster. A case by case basis has more to do with whether the specific content being used (and, to a lesser extent, its purpose) is fair use than it does with who posted it, be it on youtube or national television.

                       

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                  Anonymous Coward, Oct 18th, 2010 @ 5:22pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I'll check back tomorrow, Mike, but I'm pretty sure you won't have a good answer for this. I suspect you'll just try to weasel your way out of it, or you'll just not respond at all. Anything but to admit it's not "clearly fair use," right? LOL!

                   

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                    Anonymous Coward, Oct 18th, 2010 @ 5:24pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    It's ridiculous that copy restriction privileges should last 30+ years to begin with.

                     

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                  Mike Masnick (profile), Oct 18th, 2010 @ 11:47pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I know your trying to weasel your way out of admitting you were wrong, so I don't expect an honest answer, Mike.


                  Joe, back when you posted under your username, I made the point to you that it was silly to engage you when you constantly make ridiculous statements like the one above.

                  I had not realized who you were now that you took on another persona. Now that I know, I will not respond further. I answered your question. Others answered your question. Your decision to pretend you don't understand only reflects poorly on you.

                  I will note, in addition, that despite your incessant demands that I answer you, you refuse to answer pretty much anyone else who asks something of you. That makes it clear that your only desire in commenting here is to act as a troll and to get a reaction. That also would explain why you resort to blatant vulgarities and insults when proven wrong, and repeat the same lies about me repeatedly, even after they were debunked the very same day.

                  Good luck to you in life. I will not engage with you any further in discussions like this. I engaged with the "anonymous" you, because I'm always willing to discuss things with folks interested in discussing these issues. You, clearly, are not. You seem to only want to insult and mock others while acting superior, when pretty much everyone else here can see through your trolling nature.

                  Now, because you will respond, childishly, that I am not responding to you because I cannot, or I am trying to weasel out of it, i will note, once again, that I answered your question in detail, as anyone here can see by scrolling upwards. I have no doubt you will still make such a childish comment, but perhaps only your dear mother would believe you over the actual evidence at this point.

                  Again, if you have something substantive to discuss in the future, I am more than happy to engage. If you continue to resort to childish footstomping, there are many better things to do with my time. It's disappointing, because while naive, you have at times come across as someone who is actually eager to discuss and learn about copyright. It's unfortunate that rather than actually engaging in that manner, you instead choose to act like an immature child. I would suggest, with all due respect, that you stop doing that before you graduate law school. Judges will not be kind to you.

                   

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                    Anonymous Coward, Oct 19th, 2010 @ 7:35am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    And yet you still aren't answering the question. Do you not understand the question?

                    Here is the question AGAIN:

                    Why does UMG not have rights in the clips when someone else posts the 20/20 video on youtube? Even if it's fair use for 20/20 to use the clips, why do you think it's necessarily fair use for the youtube poster to use the same clips?

                    Your fair use analysis above was with respect to 20/20's use of the clips. What about an analysis with respect to the youtube poster?

                    You do understand that the youtube poster isn't 20/20, so you need to do a separate analysis, right? You do realize that this make it NOT CLEARLY FAIR USE, right?

                    Why won't you answer these questions?

                    I'll make a deal with you: Admit that you hadn't considered a separate fair use analysis was needed vis-a-vis the youtube poster, and that fact makes your claim that this is "clearly fair use" wrong, and I'll leave you alone.

                    Deal?

                     

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                      Derek Kerton (profile), Oct 19th, 2010 @ 8:42am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Mike,

                      Separate topic.

                      Is there an "asshat" button that can be added beside "Insightful, Funny, and Report"?

                      Maybe with an icon of a bum with a hat on it:

                      ^
                      3

                       

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                      Karl (profile), Oct 19th, 2010 @ 3:41pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Even if it's fair use for 20/20 to use the clips, why do you think it's necessarily fair use for the youtube poster to use the same clips?

                      I know I'm probably just feeding a troll, but on the off chance you actually desire an answer:

                      Fair use is decided by the nature of the use itself, not the identity of the user. If it was fair use for 20/20 to use the clips, then it's fair use for the poster as well - by definition, because it's exactly the same use. So, no, a separate fair use analysis is not needed vis-a-vis the YouTube poster.

                      You still have not answered how it is that UMG doesn't have rights in the clip uploaded on youtube

                      They are neither a holder, nor beneficial "owner," of the rights to 20/20 - ABC/Disney is. Even if it wasn't fair use regarding Disney to post the video, it was still fair use regarding UMG. UMG had no right to issue a takedown, because only rights holders are legally allowed to do that. UMG would need to hold a copyright over the original use in 20/20, which they do not.

                      But the poster also has a strong case for a fair use defense against ABC/Disney. It is not commercial; the original work was news reporting, and free to consumers; it is a small portion of the entire work; and it does not hinder the market for 20/20. The poster's original taping of the program was also fair use as defined in the Sony case.

                      Also, UMG doesn't "lose rights" with fair use, as I'm sure you know. No matter how many people make fair use of those clips, UMG's rights aren't effected in the least, since they never held the right to prevent fair use in the first place.

                       

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                      Fleebly Deebly, Oct 20th, 2010 @ 2:07am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Dundant

                      Copyright privileges extend from the moment any IP (intellectual property) is created (to whom the privileges belong and which to whom etc may get complicated very quickly however), regardless of copyright registration status.

                      Apparently UMG owns some IP that was used in this broadcast (originally under fair uses).

                      Since the 1976 Copyright Act (which among other things extended the duration of Copyright protection) which covered the original broadcast of this clip, the DMCA Act has been passed. The DMCA Act provides a means of takedown of infringing material so that (among other things) new technology can be treated sometimes as a platform and sometimes as an individual.

                      Now here is where things get complicated:
                      There are (at least) 4 parties (read IP rights-holders) involved:
                      1. 20/20 (ABC/DISNEY)
                      2. The IP owner of the clips used on the 20/20 episode (UMG included); copyrights do not cease just because of fair use.
                      3. Youtube uploader 'postingoldtapes' (I'll come back to him)
                      4. Google/Youtube.

                      So now taking the rights of these parties in turn:
                      1. ABC has the right to issue a takedown; they have not yet done so.
                      2. UMG owns copyrighted material in this clip; they may have the right to issue a takedown, however in the case "Lenz v. Universal Music Corp." the court held that the rights holder must in Good Faith consider fair use before issuing a takedown notice. They appear to have failed (AGAIN).
                      3. postingoldtapes - In the strictest sense the uploader has violated copyright law and the Youtube ToS, however many companies have decided to allow individuals to upload portions of their copyrighted material to Youtube for various reasons.
                      4. Youtube - Youtube wants to be seen strictly as a platform, and have been largely successful in this.

                      postingoldtapes position is indefensible with regard to ABC's copyrights (due to the nature of the reproduction of the material, ie it is reproduced in its entirety), however UMG's copyrights are STILL NOT BEING INFRINGED (due to the nature of the reproduction, ie short clips used for news reporting or EDUCATION).


                      tldr; UMG's RIGHTS ARE NOT BEING INFRINGED, they DO NOT have the right to issue a DMCA takedown notice.

                      postingoldtapes DOES NOT own the rights to the uploaded clip, he (probably) does not have the right to make a counterclaim (since this involves a claim of copyright, which he cannot make).

                       

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                        marak (profile), Oct 20th, 2010 @ 2:19am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Dundant

                        Nice breakdown, but as it was broadcast publicly, doesnt that invalidate their right to issue a take down notice? (honest question, i personally think it should.)

                         

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                          Fleebly Deebly, Oct 20th, 2010 @ 2:29am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Dundant

                          Personally I think it should stay online and unblocked, but I was trying to analyze all the rights involved:

                          UMG owns certain rights, but they almost definitely NOT being infringed. (NO standing for a DMCA takedown)

                          ABC owns certain other rights, and they very well MAY BE infringed. (Do have standing for a DMCA takedown)

                          postingtapes has recourse to issue a counter notice, but he probably DOES NOT have have the right to issue such a counter notice. (Probably no standing for a DMCA counter notice)

                           

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                          Fleebly Deebly, Oct 20th, 2010 @ 2:32am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Dundant

                          http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Take_down_and_Pu t_Back_provisions

                          3.4 in this tree: a statement that he has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

                          The use is authorized by law (fair use provision) as regards UMG's rights.

                           

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      anonymous, Oct 18th, 2010 @ 1:07pm

      Re:

      How about, it's likely that the video in question is not actually copyrighted by UMG, but actually copyrighted by 20/20 (or ABC).

       

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        Anonymous Coward, Oct 18th, 2010 @ 1:44pm

        Re: Re:

        UMG owns the copyright on the clips in the video. While 20/20's use might be fair, it seems unlikely to me that the youtube poster's use was fair. If not, then UMG has a good faith reason to send the takedown notice.

         

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          anonymous, Oct 18th, 2010 @ 1:55pm

          Re: Re: Re:

          UMG lost their right when they agreed to let ABC air the show.

           

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            Anonymous Coward, Oct 18th, 2010 @ 1:59pm

            Re: Re: Re: Re:

            We don't know if UMG gave 20/20 permission or not. Mike seems to think there would have been no license. Either way, what does 20/20's use being fair or otherwise authorized have to do with the reposter on youtube? UMG sent a takedown notice against the reposter, not against 20/20.

             

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          Anonymous Coward, Oct 19th, 2010 @ 9:09am

          Re: Re: Re:

          Why does it seem unlikely that the youtube poster's use was fair? If they are making commentary on it, and they in fact do, then that falls under fair use.

           

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            Anonymous Coward, Oct 19th, 2010 @ 9:36am

            Re: Re: Re: Re:

            Why does it seem unlikely that the youtube poster's use was fair? If they are making commentary on it, and they in fact do, then that falls under fair use.

            The comment under the video says:

            This is part 1 of 2.

            Back in 1980, the record industry was in turmoil - a place they seem to find themselves in on a regular basis. Featuring interviews with various record label executives on weather or not this new thing called "music video" would save the record business.

            This pre-dated eMpTyVee, which didn't launch until August 1st, 1981.

            Featuring clips from various artists including:

            Kate Bush
            Lene Lovich
            Todd Rundgren
            The Rolling Stones
            Michael Nesmith
            Rickie Lee Jones
            Tom Petty
            Fleetwood Mac
            The Buggles
            Meatloaf
            Bruce Springsteen

            It's amusing (although unintentionally so), and the hosts of the program really don't seem to grasp the relationship of music and video. And people under 20 might find those giant DVDs somewhat disturbing


            Do you think that comment makes it so this video is "clearly fair use" of UMG's clips? If so, can you run me through the analysis?

             

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      Anonymous Coward, Oct 19th, 2010 @ 11:05am

      Re:

      He's just playing into the Techdirt drinking game. Every time Masnick calls something a "pretty clear case of fair use," you take a shot.

       

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        Anonymous Coward, Oct 19th, 2010 @ 11:40am

        Re: Re:

        He's just playing into the Techdirt drinking game. Every time Masnick calls something a "pretty clear case of fair use," you take a shot.

        Count me in. :)

         

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          identicon
          Anonymous Coward, Oct 19th, 2010 @ 1:11pm

          Re: Re: Re:

          More rules:

          every time "intellectual property" appears in quotes, take a shot

          every time Masnick defends Google, take a shot

          etc., etc., ad nauseum

           

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            Anonymous Coward, Oct 19th, 2010 @ 1:27pm

            Re: Re: Re: Re:

            And everytime an entertainment industry says it's dying, drink until you get alcohol poisoning and actually die.

            This game is fun!

             

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      Crepescular Monty, Oct 19th, 2010 @ 4:32pm

      Re:

      You sound like a dumb cunt. I am amazed that you can speak with the amount of recording-industry executives' cocks that you have shoved down your throat.

       

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      identicon
      Fair Use Guy, Oct 19th, 2010 @ 7:34pm

      Re:

      Fair Use as per United States Copyright Law -
      1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      2. the nature of the copyrighted work;
      3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      4. the effect of the use upon the potential market for or value of the copyrighted work.

      In essence this is a clip of an overall show, providing a documentary benefit to others without charging for it. In no way is this preventing or harming the original creators of said works. It demonstrates the policies and implications of piracy in the 1980s...

       

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        Anonymous Coward, Oct 19th, 2010 @ 8:17pm

        Re: Re:

        You really have to read caselaw to see how those factors are applied. It's not nearly as simple or obvious as you think, nor are you anywhere close.

         

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    Ima Fish (profile), Oct 18th, 2010 @ 9:43am

    I've written about the music crash in the 80s before.

    The point of my blog post is that whenever there is a lack of exposure to new music, the industry suffers. That's what's happening now with the labels.

    The labels have been taken over by MBA bean-counters. Everything is safe and homogenized, just like it was back in the late 70s early 80s.

    MTV saved the music industry back in the 80s by exposing kids to new music, British pop, metal, rap, etc. That huge wave of success died about the same time MTV stopped playing videos.

    The net should have been the technological break-through to get new music exposed to kids. But the labels did their best to kill net radio and every other not-lame attempt to bring music online.

    As someone once said, the internet will not kill off the music industry, just the current one.

     

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      Hephaestus (profile), Oct 18th, 2010 @ 10:19am

      Re:

      "the internet will not kill off the music industry, just the current one."

      the internet will not kill off the music industry, the record labels will ... there fixed that for you.

       

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      Jay (profile), Oct 18th, 2010 @ 10:31am

      Re:

      "The point of my blog post is that whenever there is a lack of exposure to new music, the industry suffers. That's what's happening now with the labels."

      *scratches head*

      I don't think the music industry is suffering, merely the recording industry.

      Problem is, a lot more musicians are finding alternatives to the Big four. Jamendo is getting larger and larger, Creative Commons has come up as a defense to copyright issues, and overall the labels are being downright prudish with older music being used as influences.

      Regardless, there's more 360 deals forming so I doubt the labels will suffer for too long. They just have to change to the new way of business.

       

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        Hephaestus (profile), Oct 18th, 2010 @ 10:57am

        Re: Re:

        "Regardless, there's more 360 deals forming so I doubt the labels will suffer for too long. They just have to change to the new way of business."

        The 360 deals will only last as long as the labels are the only ones that can promote new artists. Once promotion outside the labels happens 360 deals are doomed. The only thing left for the labels after that is the back catalogs which will slowly be erroded as artists reclaim the copyrights on them.

        It really doesn't look good for the labels.

         

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      Berenerd (profile), Oct 18th, 2010 @ 10:59am

      Re:

      i thought it was fitting to post this quote...


      "Video killed the radio star..."

      This is very true, if the radio star didn't want to make a video back during that era...his career was over, because that became the competitive front. Now the internet is. the only ones that will make it are those who adapt. The record labels are no longer wanting to adapt, they feel they have done it enough. they will soon die and new labels who embrace the technology will becomes the power houses.

       

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      MBA Lawyer, Oct 19th, 2010 @ 1:02am

      Re:

      Labels have been taken over by lawyers charging hourly fees, not MBAs (who would be more interesting in making money from the actual business.)

       

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    •  
      identicon
      duh, Oct 19th, 2010 @ 7:54pm

      Re:

      Uh Pandora? Come on man.

       

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    identicon
    Magnificent Nobody, Oct 18th, 2010 @ 11:18am

    Analysis of Fair Use?

    I'd like to hear from Mike as well on how this is a clear case of fair use. However, while waiting I would also like to hear an analysis from AC on how this is not a case of fair use. Thanks!

     

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      Anonymous Coward, Oct 18th, 2010 @ 12:18pm

      Re: Analysis of Fair Use?

      I'd like to hear from Mike as well on how this is a clear case of fair use. However, while waiting I would also like to hear an analysis from AC on how this is not a case of fair use. Thanks!

      The last time I read a story where Mike called something clearly fair use, I gave an analysis of why I thought it wasn't clearly fair use: http://www.techdirt.com/articles/20100916/15494511044.shtml#c555

      Mike never bothered to respond with his analysis to back up his claim. I wasn't surprised.

      If he gives us some analysis in this thread, I'll gladly rebut whatever he says. It would help if I could watch the whole video first though.

       

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      Mike Masnick (profile), Oct 18th, 2010 @ 1:04pm

      Re: Analysis of Fair Use?

      I'd like to hear from Mike as well on how this is a clear case of fair use.

      Sure. I'll respond to you directly. I didn't respond to that AC (who has now revealed he's really "Average Joe" because he pulls this sorta childish footstomping stunt all the time, and I had already told him I would no longer respond to it.

      However, for your sake, the reasons why it's clearly fair use are not hard to figure out (and others have pointed it out as well).

      First off, the nature of the use. It was for news reporting, which is one of the most commonly allowed forms of fair use. Second, it's only a small segment of the songs in question (not sure which songs in the piece were Universal, but they were all short segments), hardly anywhere close to the full work. Third, in no way does it diminish the commercial value of the original work (in fact, one could argue that it enhances it). Fourth, while one could argue (weakly) "commercial use," YouTube does not put ads on works that have not been "claimed," and if Universal was really concerned about that it could have just "claimed" the video (ABC might have had an issue with that, but...) and monetized it.

      Beyond that, the fact that it was up for many years *without complaint* by Universal, and only was taken down after it suddenly got some extra attention (despite YouTube's filters which automatically scan for such content) suggests that Universal was not so much upset about the works being used, but about the content of the overall report.

      It's a slamdunk fair use case.

       

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        Anonymous Coward, Oct 18th, 2010 @ 1:41pm

        Re: Re: Analysis of Fair Use?

        I agree that it is probably fair use as far as 20/20's use is concerned. Let's just assume that it was... but that's not the problem.

        I think you're making a logical leap in concluding that somebody else using this footage must also be fair use.

        You have to run through the fair use analysis with respect to the person who posted the work on youtube, not with respect to 20/20.

        It can be fair use with respect to 20/20 but not fair use with respect to someone else who posted the material.

        Follow?

         

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          Philip (profile), Oct 18th, 2010 @ 1:48pm

          Re: Re: Re: Analysis of Fair Use?

          Makes sense, except this isn't whether the video on YouTube is fair use. UMG claimed copyright. Since UMG doesn't own the copyright to the original video, clearly it had to do with content within the video. Basically, UMG is claiming copyright against ABC with this take-down.

           

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            Anonymous Coward, Oct 18th, 2010 @ 1:52pm

            Re: Re: Re: Re: Analysis of Fair Use?

            UMG owns the copyright to their clips in the 20/20 video whether 20/20's use was fair or not. And UMG isn't claiming copyright against 20/20, they're claiming it against the poster on youtube. That's my point. Fair use isn't transferable as far as I know.

             

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              Anonymous Coward, Oct 18th, 2010 @ 1:59pm

              Re: Re: Re: Re: Re: Analysis of Fair Use?

              Fair use doesn't have to be transferred. Anything that's fair use for one is fair use for another. Period.

              If you UMG can't claim copyright against 20/20, they can't claim it against the youtube poster.

               

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                Anonymous Coward, Oct 18th, 2010 @ 2:03pm

                Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                "Period"? Can you back that up with any references?

                 

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                  Anonymous Coward, Oct 18th, 2010 @ 4:25pm

                  Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                  So then are you arguing that fair use only applies to big corporations and not so much to individuals?

                   

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                    Anonymous Coward, Oct 18th, 2010 @ 4:59pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                    But the big corporations wrote those laws for themselves and not for the public!

                     

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                      Anonymous Coward, Oct 18th, 2010 @ 5:01pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                      Exactly. Viewing the video now makes everyone realize just how wrong the big corporations were and that doesn't make the big corporations look good and so the video isn't fair use anymore. It was fair use only when it was thought to serve the corporate agenda.

                      Fair use is only for big corporations.

                       

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                        Anonymous Coward, Oct 18th, 2010 @ 6:17pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                        And the little corporations too! But not people, because that's clearly fair.

                         

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              Philip (profile), Oct 18th, 2010 @ 2:26pm

              Re: Re: Re: Re: Re: Analysis of Fair Use?

              UMG can't claim copyright against the poster, since they don't own copyright to the news clip. That's the point here: blame the right party.

              The use of the clips in the video, most likely, was fair use, and not challenge. Back in the 80s, fair use was much more accepted than it is today. I'd wager 20/20 didn't have "proper licenses" for the clips either, since ... well ... it is a news report, and fair use was fair back then.

               

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              The Infamous Joe (profile), Oct 18th, 2010 @ 2:37pm

              Re: Re: Re: Re: Re: Analysis of Fair Use?

              C'mon Joe. Really?

              So, you're saying that just because it was fair use for a 20/20 show broadcast over the airwaves, it might not be fair use for a 20/20 show broadcast over the internet? It's the *same* 20/20 show, so if it was fair use then, it is fair use now.

              Off topic. Have you been hitting the refresh button like crazy on this story? I know I get an email sent to me when someone comments, but since you're not logged in... well?

               

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                Anonymous Coward, Oct 18th, 2010 @ 3:20pm

                Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                If 20/20 posted the video on youtube, I'd buy the fair use argument. But when it's someone else posting the video, I think it's anything but "clearly fair use."

                Those emails every fifteen minutes get old, no?

                 

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                  The Infamous Joe (profile), Oct 18th, 2010 @ 3:31pm

                  Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                  If 20/20 posted the video on youtube

                  IF? Don't you mean "Since 20/20 obviously didn't post the video on youtube"? What's that? You don't even know who posted it, you just feel that it must be copyright infringement? Very strange.

                  The point is that UMG said "Hey, that infringes on our copyright" and it *didn't*. It didn't because if it was fair use enough to air on TV (as it did) then just because a different medium was used to get it to eyeballs doesn't make it no longer fair use.

                  As for the emails, when/if they get old, I auto-archive them. No biggie, sure beats sitting at a computer all day hitting the refresh button just to troll a blogger you don't agree with. I sure hope you're paid by the hour.

                   

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                    Anonymous Coward, Oct 18th, 2010 @ 3:39pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                    IF? Don't you mean "Since 20/20 obviously didn't post the video on youtube"? What's that? You don't even know who posted it, you just feel that it must be copyright infringement? Very strange.

                    I'm careful to qualify my statements. I don't know if that poster was an agent of 20/20 or their parent company or not. Do you know? If so, how?

                    The point is that UMG said "Hey, that infringes on our copyright" and it *didn't*. It didn't because if it was fair use enough to air on TV (as it did) then just because a different medium was used to get it to eyeballs doesn't make it no longer fair use.

                    Even if it was fair use for 20/20 to use the clips, how do you know it was fair use for the poster who put the clips on youtube?

                    As for the emails, when/if they get old, I auto-archive them. No biggie, sure beats sitting at a computer all day hitting the refresh button just to troll a blogger you don't agree with. I sure hope you're paid by the hour.

                    People can get paid for this? Wow! I just do it because I enjoy pointing out Mike's errors. Sad, I know.

                     

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                      The Infamous Joe (profile), Oct 18th, 2010 @ 4:00pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                      I'm careful to qualify my statements.

                      From another comment by you:

                      There's little doubt that the youtube poster was infringing by posting the clip.

                      Not so careful, are you?

                      Even if it was fair use for 20/20 to use the clips, how do you know it was fair use for the poster who put the clips on youtube?

                      As far as UMG is concerned, it doesn't matter.

                      I just do it because I enjoy pointing out Mike's errors. Sad, I know.

                      ..so when are you going to start doing that? (and: Really? Dude, you need help. Like, professional help. It's not sad, it's pathetic. If you had any credibility before, you've lost it now.)

                      Since I now know that your dogmatic comments are solely to troll, (vs. you being misguided but willing to learn) don't expect any further comments from me.

                       

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        Magnificent Nobody, Oct 18th, 2010 @ 4:17pm

        Re: Re: Analysis of Fair Use?

        Thank you, Mike, for your thoughtful analysis. I wonder, will this AJ character do the same? Doubtful. He'll probably continue stating that it is not fair use without any explaination as to why.

        For what it's worth, I think the problem AJ has is that he continually gets hung up on technicalities. This is unsurprising given a profession that deals primarily in absolutes, where flexible thinking is extraordinarily rare. For his type, the letter of the law always trumps the spirit of the law because words are easier to twist.

        After reading some of the other comments he linked to, I found myself feeling rather disgusted. He tries to come across as sincere in his desire to simply debate, but a true debater wouldn't resort to such foul language and incredibly abusive commentary. There is a word that comes to mind that describes his false sincerity; fraud. You are right to ignore him and the rest of us should endeavor to do the same.

        Again, thank you for replying to my comment, Mike. Take care! :)

         

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          Mike Masnick (profile), Oct 18th, 2010 @ 11:37pm

          Re: Re: Re: Analysis of Fair Use?

          Thank you, Mike, for your thoughtful analysis. I wonder, will this AJ character do the same? Doubtful. He'll probably continue stating that it is not fair use without any explaination as to why.

          No problem. I will note that he has not yet, though even after your post, and multiple posts from me explaining my position, he's still demanding I answer yet again. I'm not sure what makes him tick, but he's looking more and more like a typical troll, which is unfortunate. It's clear that he's not unintelligent, but has simply decided to act strangely in these comments to get a reaction.

           

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            Anonymous Coward, Oct 19th, 2010 @ 7:26am

            Re: Re: Re: Re: Analysis of Fair Use?

            No problem. I will note that he has not yet, though even after your post, and multiple posts from me explaining my position, he's still demanding I answer yet again. I'm not sure what makes him tick, but he's looking more and more like a typical troll, which is unfortunate. It's clear that he's not unintelligent, but has simply decided to act strangely in these comments to get a reaction.

            Um, no, Mike. You still have not answered how it is that UMG doesn't have rights in the clip uploaded on youtube by someone other than 20/20? I've asked you several times now.

            I know you don't have an answer. And I know you ABSOLUTELY CANNOT admit you're wrong. That's why you have no credibility.

             

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              Anonymous Coward, Oct 19th, 2010 @ 10:05am

              Re: Re: Re: Re: Re: Analysis of Fair Use?

              Neither do copyright laws.

               

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              Magnificent Nobody, Oct 19th, 2010 @ 11:13am

              Re: Re: Re: Re: Re: Analysis of Fair Use?

              What happens when the user "postingoldtape" gets permission from ABC to post the 20/20 segment, say for educational and/or news purposes? Would UMG have a claim against that user then? How do we know this user isn't affiliated with ABC to begin with for that matter?

              Also, how do we know that ABC didn't license the music clips used for the purpose of creating that specific news video? If they did, does it really matter where/how the video is seen? Did the Youtube user in question post copyrighted music, a 20/20 video, or both?

              What about intention? Shouldn't that matter too? I highly doubt posting super short music clips of extremely low quality was the goal. It seems rather clear to me that the goal was to post the 20/20 segment for informational purposes, and that the music clips are meant to be illustrative only, not entertainment and certainly not for profit.

              I think Mike and the other commenters have it right. If it was considered fair use over the course of 30 years, there is no plausible reason that I can see to take that status away. Fair use would still apply to the music clips used if ABC were to post their 20/20 video, so why would that suddenly change when it is some random user posting the video instead? The short music clips were used to illustrate something news-worthy both then and now.

              That just leaves the entire video itself as a whole, which may have been posted without the permission of ABC. If so, then ABC could probably make a legitimate claim. UMG, not being the owners of the video, cannot. Would love to see them try in court though.

               

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                Anonymous Coward, Oct 19th, 2010 @ 11:42am

                Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                Those are all great questions, and the fact is that we don't know the answers. Hence my argument that it's not "clearly fair use."

                 

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                Mike Masnick (profile), Oct 19th, 2010 @ 3:28pm

                Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                What happens when the user "postingoldtape" gets permission from ABC to post the 20/20 segment, say for educational and/or news purposes? Would UMG have a claim against that user then? How do we know this user isn't affiliated with ABC to begin with for that matter?

                I would guess that the user has not received permission. But that still doesn't change the fair use analysis here. Even in the event that "postingoldtape" did not have permission from ABC to post the episode, it's clear that Universal still has no claim to take down the content, as was explained earlier (despite someone's claim to the contrary).

                What about intention? Shouldn't that matter too? I highly doubt posting super short music clips of extremely low quality was the goal. It seems rather clear to me that the goal was to post the 20/20 segment for informational purposes, and that the music clips are meant to be illustrative only, not entertainment and certainly not for profit.

                Right. The same elements of fair use that I described above apply to both the posting user and to the original 20/20 situation. The only difference might be that the user who posted the clip couldn't claim that it was for "news" purposes. But, at the same time, while 20/20 couldn't claim noncommercial use, postingoldtape could. So the fair use analysis remains essentially unchanged. And, even so, UMG only has claims over its music, not the overall show, and since the clips were brief, transformative, for educational purposes, the fair use claim still makes sense.

                On top of that, as mentioned, given that the clip was up for years without Universal caring, and it only took it down when people started mocking the content, it again suggests that Universal was issuing the takedown not over the copyrighted music, but over embarassment over the content of 20/20 (which it has no rights to).

                I think Mike and the other commenters have it right. If it was considered fair use over the course of 30 years, there is no plausible reason that I can see to take that status away. Fair use would still apply to the music clips used if ABC were to post their 20/20 video, so why would that suddenly change when it is some random user posting the video instead? The short music clips were used to illustrate something news-worthy both then and now.

                Exactly. The overall fair use claim is pretty much the same for both the original use (by 20/20) and the poster. I explained this earlier, so it's a bit amusing to watch some commenters continue to insist otherwise. It's all there for anyone to read.

                That just leaves the entire video itself as a whole, which may have been posted without the permission of ABC. If so, then ABC could probably make a legitimate claim. UMG, not being the owners of the video, cannot. Would love to see them try in court though.

                Indeed. UMG has been smacked down in the past for not considering fair use in issuing takedowns. Would be interesting to see them get smacked again.

                 

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                  Anonymous Coward, Oct 19th, 2010 @ 3:53pm

                  Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                  I think you're too biased to find fair use every time, Mike.

                   

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                    Anonymous Coward, Oct 19th, 2010 @ 4:50pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                    Speaking of bias . . . .

                     

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                    teka, Oct 27th, 2010 @ 1:44am

                    Re: Re: Re: Re: Re: Re: Re: Re: Analysis of Fair Use?

                    Shouldn't every law's implementation be slanted like that?

                    Innocent until proven guilty.
                    Fair Use until proven infringing.
                    Freedom before restriction.

                     

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        Frankenberry, Oct 20th, 2010 @ 6:58am

        Re: Re: Analysis of Fair Use?

        >It was for news reporting, which is one of the most commonly allowed forms of fair use.

        My bet is that 20/20 got permission to broadcast the clips on television for that night and all re-reuns. "Broadcasting" the clips via internet, DVD release, or psychic transmission is NOT covered by said license. You may recall this was the issue that created the writers strike many years ago. Obtaining permission is the easy, CYA way to do this; the caveat being any use not explicitly covered by said agreement looks more suspect; because you felt it WAS neccessary to get permission before, but now you say "Fair use". Used to work IT with an academic journal publisher, and even they had a group responsible for this sort of CYA rights management.

        >Beyond that, the fact that it was up for many years *without complaint* by Universal, ... (despite YouTube's filters which automatically scan for such content) suggests that Universal was not so much upset about the works being used, but about the content of the overall report.

        Unless you can prove they knew this was published on YouTube and did nothing, this means nothing. YouTube's filters aren't very good, it doesn't take much work to defeat them and they aren't targeted at this sort of violation; they are NOT proof anyone (even YouTube) knew about this. While I have heard second hand that some copyright owners vigorously "don't know" about violations that suit their purposes, once they do know, a countdown begins for them to take action and defend it, lest they lose their copyright (Yes, I've worked in the rights management industry too). This prevents you from creating an infringing work, waiting for the clock to expire, then unveiling the theft for repercussion-less fun and profit.

        >It's a slamdunk fair use case.

        It really isn't. It definitely isn't fair use of the 20/20 segment (unedited 10 minute long clips just aren't fair use period), and while the video excerpts might be, its a long way from "slam dunk".

        Sorry, but anonymous has a point. From the US Copyright Office:

        "The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

        Of course, the solution is simple, edit out the videos, replacing them with text or whatever, then hope ABC/Disney doesn't come after it. While the concept of "Music videos" needed to be explained to a 1980's audience, they are second nature 30 years later.

         

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          average_joe (profile), Oct 20th, 2010 @ 7:14am

          Re: Re: Re: Analysis of Fair Use?

          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.

           

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          Karl (profile), Oct 20th, 2010 @ 8:09am

          Re: Re: Re: Analysis of Fair Use?

          My bet is that 20/20 got permission to broadcast the clips on television for that night and all re-reuns.

          That's possible, but if the use of UMG material within in the show is fair use, it's also irrelevant. People license material for fair use all the time, just to play it safe. That does not change the nature of the use itself.

          once they do know, a countdown begins for them to take action and defend it, lest they lose their copyright

          They can't "lose their copyright." They can lose the right to take action against this specific infringement. It has no bearing on other infringements of the same work, even if the other infringements are identical.

          You are probably thinking of trademarks, which is an odd mistake to make if you really did work in "the rights management industry."

          It definitely isn't fair use of the 20/20 segment (unedited 10 minute long clips just aren't fair use period)

          That's just false. Fair use is (loosely) decided by the "four factors" test. If that unedited 10-minute-long clip passes that test, it's fair use.

          There is a good argument why the use of the 20/20 segment is fair use: it does not "supercede the original" for profit, the original work is factual reporting, it is only a small portion of the program, and it does not affect the show's value in the market. It's not a slam dunk, obviously, but it's possible.

           

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            average_joe (profile), Oct 20th, 2010 @ 8:38am

            Re: Re: Re: Re: Analysis of Fair Use?

            So you think I can post entire segments from 20/20 on youtube and that's fair use? That's wholesale copying and textbook infringement, no?

             

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          Mike Masnick (profile), Oct 20th, 2010 @ 10:16am

          Re: Re: Re: Analysis of Fair Use?

          Obtaining permission is the easy, CYA way to do this; the caveat being any use not explicitly covered by said agreement looks more suspect; because you felt it WAS neccessary to get permission before, but now you say "Fair use". Used to work IT with an academic journal publisher, and even they had a group responsible for this sort of CYA rights management.

          Obtaining permission is quite frequently not easy, and while the legal response is quite frequently to CYA, even if 20/20 did license the clips, that doesn't change the fair use analysis.

          YouTube's filters aren't very good, it doesn't take much work to defeat them and they aren't targeted at this sort of violation

          Actually, I'm very familiar with YouTube's filters, and they are *very* targeted at this sort of violation. They can find snippets of audio used in video, and do so all the time.

          While I have heard second hand that some copyright owners vigorously "don't know" about violations that suit their purposes, once they do know, a countdown begins for them to take action and defend it, lest they lose their copyright (Yes, I've worked in the rights management industry too).

          If you worked in rights management, you would know that the above statement is inherently false. There is a requirement to defend an infringed *trademark*, but the same is simply not true for copyright. There is no countdown. You do not lose it if you don't enforce it. This is simply wrong.

          It really isn't. It definitely isn't fair use of the 20/20 segment (unedited 10 minute long clips just aren't fair use period),

          10 minutes can certainly be fair use, depending on the situation (definitely a much more difficult fair use sell, but it could be -- saying "period" is wrong). And, either way, UMG has no copyright claim over the entire 20/20 segment, only over the brief clip of their music which is -- and I stand by this -- a slam dunk case of "clearly" fair use.

           

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            average_joe (profile), Oct 20th, 2010 @ 11:36am

            Re: Re: Re: Re: Analysis of Fair Use?

            If you worked in rights management, you would know that the above statement is inherently false. There is a requirement to defend an infringed *trademark*, but the same is simply not true for copyright. There is no countdown. You do not lose it if you don't enforce it. This is simply wrong.

            There is a prescriptive period (aka statute of limitations) for bringing an action:

            17 U.S.C. 507: "Limitations on actions . . . (b) Civil actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued."

            Perhaps that's what he was talking about. If you don't bring the action within the prescriptive period, you are barred from ever bringing the action.

             

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    Anonymous Coward, Oct 18th, 2010 @ 11:32am

    Seems Public Traded Corporations have the right to censor. Where does public come from?

     

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    Eugene (profile), Oct 18th, 2010 @ 12:18pm

    What I don't understand is why exactly is Universal Music Group allowed to take down a 20/20 video?

     

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    Josh, Oct 18th, 2010 @ 1:00pm

    Fair use...

    it seems to me the industry equates using something without permission as stealing. So... if you are innocent until proven guilty, shouldn't the burden of proof be on the accuser not the user?

     

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    Mojo, Oct 18th, 2010 @ 1:12pm

    Um, Mike, there is more than ONE person waiting to hear why you see this as "clearly a fair use" case.

    Just because you're having a spat with one user you refuse to back up your claim for the benefit of all?

    I personally don't see how the wholesale copying of an entire segment from a news magazine show counts as "fair use," and if you were referring to the clips within the clip, that wasn't clear from your statement.

     

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    mojo, Oct 18th, 2010 @ 2:36pm

    Come on Mike, that's not fair.

    You can't on one hand defend the clip being allowed to stay on YouTube because the "clips within the clip" fall under fair use, when the CLIP ITSELF is clearly a case of infringing.

    Even if ABC didn't issue a takedown, it doesn't mean the OP had the right to post the segment.

     

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      The Infamous Joe (profile), Oct 18th, 2010 @ 2:44pm

      Re:

      Ah, good ol' guilty until proven innocent mixed in with a fair helping of stifling free speech!

      You can't issue a DCMA takedown on something you don't control the copyrights to. Further, even if that was allowed, as more and more companies use youtube as a legitimate communication platform you can't just assume everything on youtube is infringing. (That's why you're supposed to be the copyright holder to issue the takedown!)

      So, yes, it is quite fair in a society where you still believe that people are innocent until proven guilty.

       

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        RD, Oct 18th, 2010 @ 2:55pm

        Re: Re:

        "Ah, good ol' guilty until proven innocent mixed in with a fair helping of stifling free speech!
        ....
        So, yes, it is quite fair in a society where you still believe that people are innocent until proven guilty."

        While I agree with your post, it should be noted (and this goes for EVERYONE) that the actual phrase is "UNLESS proven guilty." It often and mistakenly gets quoted as "until" but that fundamentally changes the meaning, as "until" implies it WILL (and is therefore prejudicial by default), and unless implies, well, UNLESS. It doesnt help that lawyers and the judiciary do nothing to dissuade this view, as it makes convictions and plea bargains easier to obtain, but oh well. Still, you see this a LOT, where practically everyone uses the wrong phrase.

         

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          The Infamous Joe (profile), Oct 18th, 2010 @ 3:05pm

          Re: Re: Re:

          I hate arguing semantics, but can you give a citation for that? I only ask because "innocent unless proven guilty" yields 186,000 google hits, yet "innocent until proven guilty" yields 449,000. Also, wikipedia links to a few (admittedly, non-us) government documents that explicitly use "until" vs "unless".

           

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            Anonymous Coward, Oct 18th, 2010 @ 3:17pm

            Re: Re: Re: Re:

            I've always heard it as "until." I think I've heard "unless and until" also. Never "unless" by itself though.

             

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          Anonymous Coward, Oct 19th, 2010 @ 7:35pm

          UNLESS proven guilty

          Incorrect. The phrase comes from the Latin "Ei incumbit probatio qui dicit, non qui negat" and is a rough translation. This is a legal concept, not a chemical formula. This semantic argument is without merit.

          I'd rather get back to the actual meat of the article instead of bickering over whether or not a youtube clip is fair use or take a journey into "unless proven guilty" legal theory. There are other articles and web sites for such discussion.

           

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      Anonymous Coward, Oct 18th, 2010 @ 3:27pm

      Re:

      Come on Mike, that's not fair.

      You can't on one hand defend the clip being allowed to stay on YouTube because the "clips within the clip" fall under fair use, when the CLIP ITSELF is clearly a case of infringing.

      Even if ABC didn't issue a takedown, it doesn't mean the OP had the right to post the segment.


      There's little doubt that the youtube poster was infringing by posting the clip. Presumably, 20/20 could rightfully issue a takedown notice.

      The more interesting question is whether UMG can rightfully issue a takedown notice since the youtube poster's use is anything but "clearly fair use" of UMG's works.

      I don't think Mike will grace us with his presence and an answer until he figures out a weasel out of his argument without admitting that he's wrong. Standard Mike m.o.

       

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        The Infamous Joe (profile), Oct 18th, 2010 @ 3:37pm

        Re: Re:

        There's little doubt that the youtube poster was infringing by posting the clip.

        So, you feel it is more likely that someone had a VHS with this 20/20 episode on it, and decided to get it digitalized to post it on youtube vs. that the copyright holder actually posted it?

         

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          Anonymous Coward, Oct 18th, 2010 @ 3:48pm

          Re: Re: Re:

          So, you feel it is more likely that someone had a VHS with this 20/20 episode on it, and decided to get it digitalized to post it on youtube vs. that the copyright holder actually posted it?

          Considering that the poster's name is "postingoldtape" that certainly seems like a distinct possibility. Is there any reason to think "postingoldtape" works for 20/20 or their parent company?

           

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        Anonymous Coward, Oct 18th, 2010 @ 4:29pm

        Re: Re:

        Oh, I get it! You work for UMG!

         

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      Mike Masnick (profile), Oct 18th, 2010 @ 4:09pm

      Re:

      You can't on one hand defend the clip being allowed to stay on YouTube because the "clips within the clip" fall under fair use, when the CLIP ITSELF is clearly a case of infringing.

      Sure you can, when you look at who issued the takedown. Unversal has no right to issue a DMCA takedown on behalf of 20/20/Disney/whoever. In fact, in making a DMCA takedown claim you swear that you have the rights (or right to speak for) whoever holds the copyrights in question.

       

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    Anonymous Coward, Oct 18th, 2010 @ 5:39pm

    Here is two of two but I don't have access to it to watch it. Does anyone have another link, or will that be infringement?

    It says, "This video contains content from UMG, who has blocked it in your country on copyright grounds. "

    Seriously, this is unacceptable. It's from 1980, if it weren't for the person who taped it it could have easily died into history by now. These people are destroying our historical record with nefarious laws. These laws need to be repealed. Copy protection privileges need to last for a limited time, for it to last until content dies into history and no one has any more access to it is not a limited time. It's not like any of the copy privilege holders of the content will release it to the public once it reaches the public domain even if they have records of it. This does not promote the progress and it's truly sad what the laws have become.

     

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    Anonymous Howard, Oct 18th, 2010 @ 6:09pm

    "rollin through the streets lookin for a disco"

     

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    marak (profile), Oct 18th, 2010 @ 10:36pm

    Now im the first to admit im not completly up with US law and fair use, but wouldnt the fact that it was broadcast on "free-to-air" television have made it free use? As it was a freely handed out video, wouldnt that make it free to reproduce as long as no profit is gained?

    -= Marak

     

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    Johnny, Oct 19th, 2010 @ 1:08pm

    The video is back.

    Don't know if anyone else already pointed this out, but he 2nd part of the report seems to be back online:
    http://www.youtube.com/watch?v=E9KRtuEttIQ

    So most likely Mike was right, Universal had no right to issue a DMCA take down notice, and Youtube has now reversed it. A statement that it contains content from Universal was added however.

     

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      Anonymous Coward, Oct 19th, 2010 @ 1:21pm

      Re: The video is back.

      It's still down for me. It says, "This video contains content from UMG, who has blocked it in your country on copyright grounds."

       

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    Dan, Oct 19th, 2010 @ 4:20pm

    It's not fair use at all. No part of the fair use clause covers reposting copyrighted material on Youtube. It is solely Universal's right to tell Youtube to take down any of its copyrighted material any time it wants.

    And yes, the music industry was in a decline in 1980. The decline may or may not have had much to do with piracy, but it reversed itself. The decline currently facing the industry is certainly partially from piracy, because it is far more widespread than it was in 1980. The question is, what if any rebound is in our future.

     

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      Mike Masnick (profile), Oct 19th, 2010 @ 4:36pm

      Re:

      It's not fair use at all. No part of the fair use clause covers reposting copyrighted material on Youtube. It is solely Universal's right to tell Youtube to take down any of its copyrighted material any time it wants.

      That is simply incorrect as a matter of law and of reality. You might want to read: http://scholar.google.com/scholar_case?case=2209471029398314909&hl=en&as_sdt=2&as_vis=1& amp;oi=scholarr

      It's a separate case, but involves Universal Music issuing a takedown to YouTube, and the court saying that Universal must first evaluate fair use before issuing a takedown.

      Besides, as has been pointing out, repeatedly, in this thread, the content in question is ABC Disney's 20/20, not Universal's.

       

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        Anonymous Coward, Oct 19th, 2010 @ 5:22pm

        Re: Re:

        Lenz was only a district court case, so it doesn't have much if any precedent value. Nor are there likely to be many fact patterns where the copyright owner's determination that a particular use is not fair will amount to bad faith as needed for the user to prevail in an action for misrepresentation. And keep in mind that the bad faith belief requirement is a subjective, rather than an objective, standard, which lowers the bar even further.

        Other than that, good point. :)

         

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          Mike Masnick (profile), Oct 19th, 2010 @ 5:54pm

          Re: Re: Re:

          Lenz was only a district court case, so it doesn't have much if any precedent value.

          Indeed, but the original commenter claimed -- falsely -- that there was no such thing as fair use involving clips on YouTube. The Lenz case was just one example of why that's false. I figured it was appropriate since it involved both Universal and YouTube.

          Are you suggesting that the original commenter was correct that fair use does not apply to YouTube? If so, could you cite any evidence to support that?

          Nor are there likely to be many fact patterns where the copyright owner's determination that a particular use is not fair will amount to bad faith as needed for the user to prevail in an action for misrepresentation.

          I made no claim concerning misrepresentation. I was merely responding to the claim fair use does not apply to YouTube. I thought that was clear.

           

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            Anonymous Coward, Oct 19th, 2010 @ 6:19pm

            Re: Re: Re: Re:

            I'm just saying that all the copyright holder has to do is say they thought it wasn't fair use when issuing a takedown notice, and that's not much of a hurdle.

            Of course fair use applies to youtube, I'm with you there. See, we don't always disagree. :)

             

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      Karl (profile), Oct 19th, 2010 @ 7:35pm

      Re:

      It's not fair use at all. No part of the fair use clause covers reposting copyrighted material on Youtube.

      Fair use is a part of copyright law. It is applicable in any case where copyright applies. If fair use doesn't apply to YouTube, then neither does copyright... which is something I doubt you want to propose.

      It is solely Universal's right to tell Youtube to take down any of its copyrighted material any time it wants.

      Takedown requests are to prevent infringement. If a use is fair use, it's not infringing, and nobody (rights holder or not) can legitimately demand it be taken down.

      And Universal can only issue a takedown of material it holds the rights to. It does not hold the rights to 20/20 itself (ABC/Disney does), so it could not issue a takedown request for infringing on that program (just as I couldn't issue a takedown request if a user is infringing on Universal's copyright).

      So, it would only be able to issue a takedown request if the use of Universal material within the 20/20 program itself is infringing. That use (as Mike and others have shown) is clearly fair use, so it's not infringing.

      No matter how you slice it, Universal is in the wrong here.

       

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    Rekrul, Oct 19th, 2010 @ 4:37pm

    If you get the message that the second part of the video is blocked in your country, go to;

    http://www.hidemyass.com

    And enter the video's URL in the box. It might take a couple tries, but eventually you'll get a page where you can view the video.

     

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    Baldguy, Oct 19th, 2010 @ 4:39pm

    Reposting this video

    I'm reposting this video as an mp4 on my blog at baldguyweb.com. I hope I can get part II.

     

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    Anonymous Coward, Oct 19th, 2010 @ 6:04pm

    Part 2 Download

     

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    CitizenJ, Oct 19th, 2010 @ 6:33pm

    Anonymous Coward (aka Average Joe)

    See, what Joe is doing above (aside from trolling) is known in rhetoric as Demanding Negative Proof. He asserts that the clip is not fair use while demanding that Mike is responsible for providing the proof that the clip is fair use and refuses to advance the debate in any reasonable form even though Mike has in fact answered his question and provided the proof requested. This shows that Joe has no intention of engaging in a logical and rational exchange of ideas but instead is trapped by his own informal fallacy and thus his argument is, at its core, defective.

    To add my own fallacy (known as an ad hominem) joe's being a stupid git.

    Just sayin...

     

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      Anonymous Coward, Oct 19th, 2010 @ 8:15pm

      Re: Anonymous Coward (aka Average Joe)

      Get your facts straight. I never said it wasn't fair use. Mike said it was "clearly fair use" and I disagreed. I don't think it's clearly fairly use. That doesn't mean I think it's not fair use. Nor does it mean I think it is.

      Nice try though.

      And Mike's provided nothing but conclusory statements about the issue I raised, not to mention some shoddy fair use "analysis."

       

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        Anonymous Coward, Oct 19th, 2010 @ 8:36pm

        Re: Re: Anonymous Coward (aka Average Joe)

        Copyright laws sure are confusing. It's a good thing such confusing laws are protecting our culture and the dissemination of information.

        That's fair.

         

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        JJ, Oct 19th, 2010 @ 11:02pm

        Re: Re: Anonymous Coward (aka Average Joe)

        > And Mike's provided nothing but conclusory statements about the issue I raised, not to mention some shoddy fair use "analysis."

        Normally, Coward, when someone says that someone has provided "shoddy analysis", they then are able to explain why it's shoddy and provide their own alternative analysis. I just wasted half an hour reading this entire thread, and all I see is Mike consistently making his points and backing them up, followed by you screaming "nuh-uh". Whether or not you agree with Mike or not is rather meaningless at this point. What comes through loud and clear is that you simply refuse to back up your position, or even at the very least explain why Mike is wrong.

         

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    Robert de Wit, Oct 19th, 2010 @ 7:07pm

    Part 2

    Part 2 is still on-line, after watched part 1 I just clicked on the link to part 2 and it runs without a hitch.

     

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      Mike Masnick (profile), Oct 19th, 2010 @ 10:55pm

      Re: Part 2

      Part 2 is still on-line, after watched part 1 I just clicked on the link to part 2 and it runs without a hitch.

      It appears to be country specific concerning the blocks. I'm assuming that Universal only holds the rights to the music in question in certain territories (it's not unusual for certain acts to have one major label handle one territory and another handle a different territory).

       

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        Rekrul, Oct 21st, 2010 @ 4:41pm

        Re: Re: Part 2

        It appears to be country specific concerning the blocks. I'm assuming that Universal only holds the rights to the music in question in certain territories (it's not unusual for certain acts to have one major label handle one territory and another handle a different territory).

        Any time a video is blocked by a country specific ban, just use a web proxy to get around it. HideMyAss worked great in this particular situation.

         

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    Anonymous Coward, Oct 19th, 2010 @ 7:37pm

    obvious troll is obvious?

     

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    Frobozz, Oct 20th, 2010 @ 2:58am

    The forbidden fruit

    Using the megaupload link above, I partook in the forbidden fruit. There's no mention of lost revenues anywhere in the second half of the video, and there are no embarrassing statements made by record industry representatives. There are however many demonstrations of video material recorded by a variety of artists, including Elton John, Ricki Lee Jones, Mick Jagger, Lene Lovich, Meat Loaf, the Buggles, and others. Each video sample is about 15 seconds long. The newscast narrator is speaking over the video samples. The idea that these samples would have any negative commercial impact on these artists or their labels is absurd. That said, it appears that the takedown notice was the result of a knee-jerk reaction from Universal regarding the individual videos, not the overall subject of the news piece.

    I don't see how anyone could make a rational argument that a music fan is going to say "wow, I don't have to buy Elton John in Concert at Edinburgh now because I found a grainy 15 second clip of his laserdisc with a newcaster speaking over the music."

    The irony is that if you do a search for "Elton John in concert at Edinburgh" on Youtube, you'll find dozens of matches that are higher quality, minus the newscaster. The same is true for all the above artists.

    As for there not being any clear case of fair use, here is a clear case of fair use:

    http://www.youtube.com/watch?v=CJn_jC4FNDo

    - It's been online for over 3 years.
    - It has over 10 million views.
    - If it was not fair use, Disney lawyers would have DMCA'ed this video out of existence 10 times over. I'm sure they tried their best to get it pulled.

     

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    average_joe (profile), Oct 20th, 2010 @ 6:17am

    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.

     

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      Karl (profile), Oct 20th, 2010 @ 7:15am

      Re: Fair Use

      To me it seems natural that if postingoldtape is infringing to one, he's infringing to the other.

      Why?

      Infringement is not a binary thing. It's not "infringing vs. not infringing." It's "infringing on the copyright of a specific entity."

      If 20/20's use is indeed fair use, Universal does not hold the rights to any part of the 20/20 show itself. Universal is just as much a third party as I am.

      And in order to legitimately issue a takedown notice, you must be a rights holder.

      Now, of course you can illegitimately issue a takedown notice. And even though the takedown is illegitimate, the content will be immediately removed. That removal is permanent unless the poster files a counter-notice (in which case it could be weeks or months before the content is restored).

      This is a major flaw with the notice-and-takedown system (as opposed to the notice-and-notice system): it puts the burden of proof on the poster to prove that the use is fair use, even if the takedown notice is completely bogus.

       

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        average_joe (profile), Oct 20th, 2010 @ 7:31am

        Re: Re: Fair Use

        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.

         

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          Karl (profile), Oct 20th, 2010 @ 8:38am

          Re: Re: Re: Fair Use

          If 20/20's use is fair, then UMG can't assert those rights against 20/20

          If the use within 20/20 is fair, then UMG can't assert those rights against any identical use. If it's fair use for 20/20, it's fair use for everyone.

          Whether those clips were in fact licensed is completely irrelevant. Fair use is defined by use, not by user.

          Also, just because a use is infringing against one party, does not mean that all fair use rights are lost. For example, if 20/20's use was not fair use, but had to be licensed, then a lawsuit by Disney does not mean that Universal could not sue as well.

          There are two separate copyright claims in play here; and since fair use is a fundamental part of copyright, every time there is a copyright claim, there is a fair use claim.

          Also, I'm not entirely convinced that Disney would have a slam-dunk infringement case, either - especially considering that 20/20 is a news program, and that the episode is not commercially available.

           

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            average_joe (profile), Oct 20th, 2010 @ 8:56am

            Re: Re: Re: Re: Fair Use

            If the use within 20/20 is fair, then UMG can't assert those rights against any identical use. If it's fair use for 20/20, it's fair use for everyone.

            That makes zero sense to me. What is the basis for that argument? Got any caselaw to back it up? I think you're just guessing.

            Also, just because a use is infringing against one party, does not mean that all fair use rights are lost. For example, if 20/20's use was not fair use, but had to be licensed, then a lawsuit by Disney does not mean that Universal could not sue as well.

            I think it's more likely that postingoldtape is infringing on both ABC's copyright of 20/20 and UMG's copyright of the clips.

            Also, I'm not entirely convinced that Disney would have a slam-dunk infringement case, either - especially considering that 20/20 is a news program, and that the episode is not commercially available.

            Really? It's just wholesale copying. Whether or not 20/20 has made the work commercially available does not change the fair use analysis. You should read a bunch of caselaw on how courts apply the fair use analysis. It's clear that you haven't.

            If anything guys, I think it's perfectly clear that this is anything but "clearly fair use." Mike's just plain wrong. And he's not man enough to admit it.

             

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              Karl (profile), Oct 20th, 2010 @ 9:13am

              Re: Re: Re: Re: Re: Fair Use

              I think it's more likely that postingoldtape is infringing on both ABC's copyright of 20/20 and UMG's copyright of the clips.

              It's potentially infringing on both. But infringement against one, does not mean automatic infringement against the other. Just like the absence of infringement against one, does not mean the absence of infringement against the other.

              Let's say, for the sake of argument, that Universal took postingoldtapes to court. The court finds that postingoldtapes' use of the UMG material was fair use.

              By your logic, that would mean that postingoldtapes use of Disney's material was also fair use.

              As for case law: The closest I could find to something like this is Italian Book Corp v. American Broadcasting Co.

               

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                average_joe (profile), Oct 20th, 2010 @ 9:18am

                Re: Re: Re: Re: Re: Re: Fair Use

                No, I think the fair use analysis has to be done twice. Once for UMG and once for ABC. I'll check out that case, thanks.

                 

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                  Anonymous Coward, Oct 20th, 2010 @ 9:28am

                  Re: Re: Re: Re: Re: Re: Re: Fair Use

                  Three times. Don't forget about the public.

                   

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                  Karl (profile), Oct 20th, 2010 @ 9:52am

                  Re: Re: Re: Re: Re: Re: Re: Fair Use

                  I think the fair use analysis has to be done twice. Once for UMG and once for ABC.

                  And that is precisely my point. He could infringe on ABC's copyrights, but still be fair use of UMG's.

                  I think it's obvious that, if it were postingoldtapes creating the original segment (and not 20/20), then it would absolutely, positively be fair use. No question. Slam dunk.

                  So Universal has no claim here.

                   

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                    average_joe (profile), Oct 20th, 2010 @ 9:55am

                    Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                    That makes no sense. postingoldtape DID NOT create the original segment, so there's no reason to analyze it as if he had.

                     

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                      Karl (profile), Oct 20th, 2010 @ 10:35am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                      postingoldtape DID NOT create the original segment, so there's no reason to analyze it as if he had.

                      Disney and Universal have entirely distinct claims on the content, thus entirely distinct determinations of fair use apply, so how else could you possibly analyze it?

                      For the sake of argument, let's say that Disney authorized postingoldtapes' use (say, by "claiming" the YouTube clip via their ContentID system, and "monetizing" it rather than taking it down).

                      Would Universal have a claim against Disney? No? Then they wouldn't have a claim against the poster, either.

                      Conversely: Could Universal legally claim and monetize this clip, against Disney's wishes? No? Then they can't issue a takedown notice, either.

                      The copyright holder is the only one that can issue a takedown notice, by DMCA law. Universal is not the copyright holder of the 20/20 clip. Therefore, they can't issue a takedown notice. QED.

                      I mean, this is just really obvious stuff here. The fact that no authority has contradicted it, nor even suggested that a contradiction is even possible, is telling.

                       

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                        average_joe (profile), Oct 20th, 2010 @ 11:41am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                        For the sake of argument, let's say that Disney authorized postingoldtapes' use (say, by "claiming" the YouTube clip via their ContentID system, and "monetizing" it rather than taking it down).

                        Would Universal have a claim against Disney? No? Then they wouldn't have a claim against the poster, either.


                        Yeah, I thought about that. If ABC licensed or authorized postingoldtape's use, then I would think ABC's right to use UMG's content transfers to postingoldtape.

                        The copyright holder is the only one that can issue a takedown notice, by DMCA law. Universal is not the copyright holder of the 20/20 clip. Therefore, they can't issue a takedown notice. QED.

                        UMG is the copyright holder of the clips vis-a-vis postingoldtape. That's my point.

                        I mean, this is just really obvious stuff here. The fact that no authority has contradicted it, nor even suggested that a contradiction is even possible, is telling.

                        I don't think it's obvious at all. That's also my point.

                         

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                          Karl (profile), Oct 20th, 2010 @ 12:27pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                          I would think ABC's right to use UMG's content transfers to postingoldtape.

                          "Fair use" resides in the use itself, not in the identity of the user. It is not a license. It isn't "owned" by anyone, and cannot be "transferred" to anyone, granted to anyone, or taken away from anyone.

                          It is a boundary of copyright law, a limitation on the rights of the copyright holder. If a use is fair use, then the copyright owner has no right to prevent that use, under any circumstances.

                          UMG is the copyright holder of the clips vis-a-vis postingoldtape.

                          If the use in that 20/20 segment is fair use, then UMG is not the copyright holder of the clips, vis-a-vis anybody.

                           

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                            average_joe (profile), Oct 20th, 2010 @ 12:35pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                            "Fair use" resides in the use itself, not in the identity of the user.

                            Right. And you must look at postingoldtape's use as a new, distinct use. It's the play-within-the-play.

                             

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                              Karl (profile), Oct 20th, 2010 @ 3:31pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                              And you must look at postingoldtape's use as a new, distinct use.

                              I don't think you quite get that "use" is a noun, not a verb. "20/20's use" is exactly the same as "the content produced by 20/20."

                              It would only be a new use if it's new content.

                               

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                                average_joe (profile), Oct 20th, 2010 @ 4:34pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                                Right. And since it's not a new use, it's just plain copying.

                                 

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                                  Karl (profile), Oct 20th, 2010 @ 6:11pm

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                                  since it's not a new use, it's just plain copying.

                                  Which becomes an issue solely in deciding whether the poster infringed on Disney's rights.

                                  Since the portion that includes UMG's work is the same content, its status as fair use cannot change. As far as UMG is concerned, that content is fair use. They have no copyright over any part of it.

                                  So UMG had no right to issue a DMCA takedown. Clear as day.

                                   

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                      Karl (profile), Oct 20th, 2010 @ 11:01am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                      Hmm. Let me put it another way.

                      If 20/20's use of UMG material is fair use, then Universal holds no more rights to that clip than they would to The Little Mermaid.

                      How does postingoldtapes (alleged) infringement of Disney's copyright suddenly grant rights to Universal that they never held in the first place?

                       

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                        average_joe (profile), Oct 20th, 2010 @ 12:16pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                        If 20/20's use of UMG material is fair use, then Universal holds no more rights to that clip than they would to The Little Mermaid.

                        How does postingoldtapes (alleged) infringement of Disney's copyright suddenly grant rights to Universal that they never held in the first place?


                        Well, first of all, we don't know if UMG licensed the clips to ABC or not.

                        Let's say they did. Why would UMG's license to ABC transfer to postingoldtape? Could ABC even transfer that license if they wanted to? We don't know if it was even transferable. I think the most likely scenario is that postingoldtape doesn't have either parties' permission and he's infringing on both UMG and ABC.

                        Let's say UMG didn't license the clips to ABC and ABC was using the clips fairly. Why would ABC's fair use transfer to postingoldtape? Even if it makes sense that fair use could be transferred, and I don't see why it couldn't be, I think the problem is that postingoldtape's use wasn't itself fair. It's not fair with respect to 20/20 and that makes it not fair with respect to UMG.

                        The problem is, I think, in looking at postingoldtape's use as an extension of ABC's use. It's not. It's a whole new use that needs to be analyzed distinctly. And from that perspective, I think the use infringes both ABC's and UMG's copyrights.

                         

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                          Karl (profile), Oct 20th, 2010 @ 12:34pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Fair Use

                          Why would UMG's license to ABC transfer to postingoldtape?

                          If the clips were required to be licensed, then it would not. If it's fair use, no license is required, independent of whether or not a license was actually paid for.

                          People pay licenses for stuff when they don't have to all the time, to avoid legal hassles, or to keep on good faith terms with the other party.

                          It's a whole new use that needs to be analyzed distinctly. And from that perspective, I think the use infringes both ABC's and UMG's copyrights.

                          I have no idea how you could possibly believe this. The only change in the use is that it's no longer for profit - which weighs in favor of it being fair use.

                           

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                average_joe (profile), Oct 20th, 2010 @ 9:52am

                Re: Re: Re: Re: Re: Re: Fair Use

                OK, I read Italian Book Corp v. American Broadcasting Co. and I think that case is inapposite. The copyrighted material at issue was incidentally included in the news broadcast, whereas here, the UMG clips were intentionally included in the 20/20 piece. On top of that, we don't have the same situation where someone else was reposting the clip. So it's not really analogous.

                I like this part: "The fair use concept has been part of the law of copyright for many years, although its application has been vexing." In other words, there's no such thing as "clearly fair use."

                And this part is even better: "The fair use privilege is based on the concept of reasonableness and extensive verbatim copying or paraphrasing of material set down by another cannot satisfy that standard." In other words, wholesale copying is not fair use.

                There's also this lovely nugget: "Justice Stewart's majority opinion in Zacchini notes the argument put forward by Nimmer that 'copyright law does not abridge the First Amendment because it does not restrain the communication of ideas or concepts.'" In other words, copyright and the First Amendment coexist peacefully.

                Good case though. I enjoyed reading it.

                 

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                  Karl (profile), Oct 20th, 2010 @ 6:40pm

                  Re: Re: Re: Re: Re: Re: Re: Fair Use

                  Well, as I said, that's the closest case that I could find that was actually decided (not settled).

                  But let's expand on it. Say a user uploaded a verbatim copy of that news broadcast that incidentally included a sample of "Dove sta Zaza."

                  Would the copyright holders to "Dove sta Zaza" be able to sue the uploader?

                  Clearly, they would not.

                   

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          Karl (profile), Oct 20th, 2010 @ 8:59am

          Re: Re: Re: Fair Use

          Also:

          The EFF has a page about Gellar's lawsuits (there's more than one):
          https://www.eff.org/cases/sapient-v-geller

          Gellar, here, was clearly in the wrong - even claiming copyright on materials he obviously didn't hold. It's a shame the counter-suit got dismissed on jurisdictional grounds.

          And the fact that defendants have no such jurisdictional defense, is yet another example of how copyright law is skewed in favor of rights claimants, and against the public:
          [T]he DMCA provides explicitly that internet users such as Sapient who wish to rebut a takedown notice must consent to the jurisdiction of a federal district court (see 17 USC 512(g)(3)(D)), but the statute does not require copyright owners who send takedown notices (such as defendants here) to consent to personal jurisdiction (see 17 USC 512(c)(3)).

           

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            average_joe (profile), Oct 20th, 2010 @ 9:15am

            Re: Re: Re: Re: Fair Use

            Yeah, there's a good argument that NOVA's use of Geller's clip was fair use. In fact, I think that it probably was. But that doesn't mean someone else posting the NOVA video on youtube could claim that same fair use of Geller's clip. In fact, I can find no authority that says that it works that way. And notice what happened in that case--they settled and Geller licensed the clip for others to use. He didn't concede it was fair use, he licensed it.

             

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              Karl (profile), Oct 20th, 2010 @ 10:19am

              Re: Re: Re: Re: Re: Fair Use

              In fact, I can find no authority that says that it works that way.

              Maybe because it's so obvious and tautological that nobody even thinks to say it.

              Do you have even a single case where a lawsuit like this was even attempted, other than the Gellar case? No? Maybe there's a reason for that: the third party would clearly, unequivocally, and obviously lose, so they don't even try.

              And of course Gellar isn't going to openly admit it's fair use, but granting a universal license looks a lot like he would have had to if the case went forward. In fact, it's likely he would have lost the counter-suit. That's almost certainly why he asked the Court to dismiss his own case with prejudice.

               

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            Mike Masnick (profile), Oct 20th, 2010 @ 10:48am

            Re: Re: Re: Re: Fair Use

            The EFF has a page about Gellar's lawsuits (there's more than one):

            Yeah, we've covered his abuse of the DMCA in the past as well.

            http://www.techdirt.com/search.php?cx=partner-pub-4050006937094082:cx0qff-dnm1&cof=FORI D:9&ie=ISO-8859-1&q=geller

             

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              Karl (profile), Oct 20th, 2010 @ 11:10am

              Re: Re: Re: Re: Re: Fair Use

              Ha, you actually tread lightly on Gellar. This is the worst loss for a copyright holder I've ever seen.

              How many copyright lawsuits involve changing the copyright license as part of the settlement? This is the only one I've ever seen.

               

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                average_joe (profile), Oct 20th, 2010 @ 12:25pm

                Re: Re: Re: Re: Re: Re: Fair Use

                Ha, you actually tread lightly on Gellar. This is the worst loss for a copyright holder I've ever seen.

                I'm not scared of Geller. He can't even bend spoons with his mind.

                How many copyright lawsuits involve changing the copyright license as part of the settlement? This is the only one I've ever seen.

                Google books comes to mind. Google scans and catalogs library books and book publishers bring lawsuit for infringement. Google and publishers are now working on a settlement where they will grant Google a license to scan the works.

                I'm sure compromises like that happen all the time.

                 

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                  Karl (profile), Oct 20th, 2010 @ 3:16pm

                  Re: Re: Re: Re: Re: Re: Re: Fair Use

                  Google and publishers are now working on a settlement where they will grant Google a license to scan the works.

                  But that's a license granted exclusively to Google. It does not change the general copyright under which those works are published; if Yahoo! did the same thing, they could still be sued.

                  The Geller settlement actually changed the copyright. They now cannot enforce their copyright against anyone who uses that clip (non-commercially).

                  The former is common. The latter has never happened before, that I know of.

                   

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      Fleebly Deebly, Oct 20th, 2010 @ 2:45pm

      Re:

      (posting on a diff compy; thus the diff avatar [I may have to make a profile here])

      I find it interesting that you cite two cases where the court did not uphold the copyright holder's claim of infringement to SUPPORT your case.

      I also see that you still have not made a case as to why UMG's rights were infringed:

      UMG has copyrights to materials that were posted in a Youtube video.

      UMG's materials were used without permission or license by the uploader.

      UMG's materials were almost certainly covered by fair use.

      Could you please detail why these materials were not covered by the 4 factor test:

      Factor 1: Character of the use:
      * Nonprofit
      * Educational
      * Criticism
      * Commentary
      * Newsreporting
      [All point to fair use]

      FACTOR 2: Nature of the work:
      * Fact
      * Published
      [Again, points to fair use]

      FACTOR 3: How much of the work will you use?
      * Small amount
      [Fair use again]

      Factor 4:
      "If the use were widespread, and the use were not fair, would the copyright owner be losing money?"
      [NO, indicates fair use]

       

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    yomama, Oct 20th, 2010 @ 5:36pm

    Why doesn't someone delete/edit out all the music and re-upload it?

     

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    JPJ, Oct 20th, 2010 @ 8:30pm

    UMG pulled it tho Disney owns 20/20 = strawman.

    It was the music clips.

    And where is the proof it was UMG that pulled it and not YouTube filters?

    There isn't anything embarrassing said on that clip.

    This is just another piece of Masnick propaganda in his crusade to make musicians entertain him for free.

     

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      Anonymous Coward, Oct 20th, 2010 @ 9:11pm

      Re:

      That last bit is a strawman. Or are you that dense?

       

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      Mike Masnick (profile), Oct 20th, 2010 @ 10:07pm

      Re:

      UMG pulled it tho Disney owns 20/20 = strawman.

      How so?

      It was the music clips.

      Which, as noted in great detail, were pretty clearly fair use.

      And where is the proof it was UMG that pulled it and not YouTube filters?

      The video had been up for FOUR YEARS before it was pulled. YouTube claims that its entire library is scanned every two months. And it's been quite good at picking up music for quite some time. The fact that it gets pulled right after a couple blogs notice it? Uh, no, not the filters.

      There isn't anything embarrassing said on that clip.

      Says you.

      This is just another piece of Masnick propaganda in his crusade to make musicians entertain him for free.

      Heh. I love these ridiculously wrong accusations. If I wanted musicians to entertain me for free, why do I regularly pay so much for music -- even when it's available for free? Why do I regularly point out smart business models that are making musicians lots of money. It's got nothing to do with what I "want". It has to do with basic economics, and I'm trying to HELP musicians earn more money. I have no problem paying for music and do so all the time, happily.

       

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      Karl (profile), Oct 21st, 2010 @ 6:19am

      Re:

      And where is the proof it was UMG that pulled it and not YouTube filters?

      http://www.youtube.com/watch?v=E9KRtuEttIQ
      "This video contains content from UMG, who has blocked it in your country on copyright grounds."

      Since Universal can't hold the copyright on any fair use of its clips, it had no legal right to issue the takedown. They are guilty of copyfraud.

      The only entity that has the right to decide if the content even could be infringing is Disney, owner of 20/20.

       

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    JPJ, Oct 20th, 2010 @ 9:38pm

    No, it isn't.

    And anyone that buys the freetard BS peddled on this site is the dense sucker.

     

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    JPJ, Oct 20th, 2010 @ 10:35pm

    And I say you're completely full of sh*t.

    You pay for shows? Surprise, surprise. Just who is going to let you in for free?
    Anyway, you don't have the first f'n clue about how much damage musicians have suffered at the hands of piracy. How could you? You have ZERO experience in the real world, re: music.

    And none of your "models" are even remotely plausible. You would know that if you had any idea of what you're talking about.

    But you don't.

    And this isn't even just about music. I'm a die-hard Democrat and even I see that your ideas about intellectual property are straight out of Das Kapital.

     

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      marak (profile), Oct 20th, 2010 @ 11:36pm

      Re:

      *ponders replying to the troll*

      No, not worth it.

      Oh but wait, your accusations that he does not know what he's talking about and his models do not work? What about the rest of us who support his ideas?

      Your insisting were all wrong? Your a die hard democrat? good for you, im a die hard aussie programmer, nice to make your acquaintance, neither of those make a difference to our arguments.

      I personally, as a programmer and a web designer, work with a few bands. Guess what? They release their music for free, and charge for scarse items. They all still work(well as much as they useto haha), but they make a nice little earner on the side for themselves, and travel quite frequently around aus playing at different shows.

      From what i can see your arguments have started out at something almost rational, and rapidly fallen down to attempts at personal insults. Id call you an industry shrill, but i honestly think they would pay for someone with a more thought out writing style.

      - Marak

       

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      Mike Masnick (profile), Oct 21st, 2010 @ 12:03am

      Re:

      And I say you're completely full of sh*t.

      When you have no argument, and nothing to back up your position, it's always best to start off with a vulgar insult. That way people are sure to be convinced by your impeccable logic.

      You pay for shows? Surprise, surprise. Just who is going to let you in for free?

      No, I said I pay for *music*. Shows are something different. I buy all sorts of CDs (yes, still) and purchase MP3 downloads all the time.

      Anyway, you don't have the first f'n clue about how much damage musicians have suffered at the hands of piracy. How could you? You have ZERO experience in the real world, re: music.

      I love these sorts of accusations. I work with a bunch of musicians who seem to be doing incredibly well in the age of piracy, but I don't know anything? I guess all the examples we keep posting are figments of my imagination.

      That explains it.

      And none of your "models" are even remotely plausible. You would know that if you had any idea of what you're talking about.

      Ah, and that's why they're already working for so many people? Again, what, figment of my imagination? Must be.

      And this isn't even just about music. I'm a die-hard Democrat and even I see that your ideas about intellectual property are straight out of Das Kapital.

      Hmm. Where? Which page? And, I'm curious -- honestly -- how a position based on free markets is from Das Kapital. I'm also not sure what being a Democrat has to do with anything.

      Anyway, next time, if you want to actually make sense, try coming back with *EVIDENCE* not insults. Otherwise, the knowledgeable folks around these parts will quickly realize you don't have much to add to the conversation.

       

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    NevTheTech, Oct 21st, 2010 @ 1:56am

    For UK viewers

     

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    JPJ, Oct 21st, 2010 @ 2:48am

    "I love these sorts of accusations. I work with a bunch of musicians who seem to be doing incredibly well in the age of piracy"

    You have experience with lots of bands? Name them. Let's see how well they're doing and how many people have been exposed to them and know them.

    "that's why they're already working for so many people"

    Oh really? Examples please. Can't wait to see this new "model" that will work for every artist- not just a few, or for novelty acts. And needless to say, it must also:

    work if they are unable to tour,
    work when a songwriter on his own has no support to tour,
    work when they are no longer a band.

    "how a position based on free markets is from Das Kapital."

    Good god. Any "market" that is based on illegally obtaining something without payment is not a free and honest market. Maybe you're assuming your ignorant sycophants here think free markets are to be taken literally...

    Anyone can search your manifestos here. Your message consistently conveys Marxist principles of putting demand fulfillment as paramount and profit as an afterthought.

    "The writer must earn money in order to be able to live and to write, but he must by no means live and write for the purpose of making money."

    Sound familiar?

    "next time, if you want to actually make sense, try coming back with *EVIDENCE* not insults."

    Was happy to.

    But I forgot an insult...

    You're a charlatan.

     

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      marak (profile), Oct 21st, 2010 @ 3:13am

      Re:

      >work if they are unable to tour,

      Or show me any business thats able to make profit if its:
      Unable to meet their customers, to only sell their products online(here's a hint, when you do show them(and they do exist) their using a business model that supports them)

      >work when a songwriter on his own has no support to tour,
      Songwriters tour? They run around handing out new songs?

      >work when they are no longer a band.
      Ive closed my business, give me money becuase i useto run a business.

      >Good god. Any "market" that is based on illegally >obtaining something without payment is not a free and >honest market. Maybe you're assuming your ignorant >sycophants here think free markets are to be taken >literally...

      I sell bottled water, does that make it illegal to drink water from a lake? But now were starting to see the crux of your argument! Only took how long?

      Still waiting for evidence.


      >You're a charlatan.
      Unlikely, we practice rational thought around here(well most of the commenters do).

       

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      Mike Masnick (profile), Oct 21st, 2010 @ 3:16am

      Re:

      You have experience with lots of bands? Name them. Let's see how well they're doing and how many people have been exposed to them and know them.

      I can't name who I've worked with for contractual reasons, but I've shown in the past how many acts, big, medium and small have been using these concepts to do quite well for themselves. Here's an example that lists many cases:

      http://www.techdirt.com/articles/20091119/1634117011.shtml

      Oh really? Examples please.

      See the link above.

      Can't wait to see this new "model" that will work for every artist- not just a few, or for novelty acts.

      You're adding conditions that make no sense. Selling CDs didn't work for every artist (in fact it didn't work for most artists). So your conditions are meaningless.

      As for your other conditions -- I'm not sure why any model "has" to work in those conditions, but, if you must:

      work if they are unable to tour,

      Many of the examples we've highlighted are non-touring artists.

      work when a songwriter on his own has no support to tour,

      Sure, that's easy. There are plenty of scarcities that a songwriter has to sell. We've covered them in the past.

      work when they are no longer a band.

      Wait, what? Why? I'm sorry, but when I leave my job, I no longer get paid. This condition makes no sense.

      The problem is that you want a new business model that does some of the dangerous things that the old one did -- not business models that work better in today's market. You're asking the wrong question, which explains why you don't understand the answers you're being given.

      Good god. Any "market" that is based on illegally obtaining something without payment is not a free and honest market. Maybe you're assuming your ignorant sycophants here think free markets are to be taken literally...

      You seem confused. I am not suggesting a market based on illegally obtaining anything. I really am amazed at how people who attack me don't seem to even bother to understand what I'm saying.

      I'm suggesting a true free market, where the content creators choose not to rely on gov't granted monopolies. In such a market, there is no illegal obtaining of things, because it's all about legally obtaining things.

      Anyone can search your manifestos here. Your message consistently conveys Marxist principles of putting demand fulfillment as paramount and profit as an afterthought.

      Whoa. Your willful misreading of what I've written is troubling. Are you confusing me with someone else? I come at this from a business perspective. I believe very much in profit maximization. It's why most of what I focused on in my examples is about how these artists are profiting greatly from what they're doing. I'm a champion of maximizing profit. I believe the evidence shows that the way you do that is by not relying on gov't granted monopolies, but taking advantage of the natural abundance to increase your profits.

      "The writer must earn money in order to be able to live and to write, but he must by no means live and write for the purpose of making money."

      Sound familiar?


      No. I think that's dumb. I think that if people want to make money creating content, they absolutely should -- and they should profit as much as they can. I'm a believer in the free market. That's why I spend so much time highlighting artists who have done a good job *making money*.

      Honestly, you must have me confused with someone else.


      Was happy to.


      I asked for EVIDENCE. You provided none.

      But I forgot an insult... You're a charlatan.

      I see. So, in order to prove that you have no evidence, you resort to insults again.

      Anyway, charlatans are people who don't back up their claims. I do. So far, you have not. Want to try again? Perhaps this time actually respond with some evidence.

       

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      The Infamous Joe (profile), Oct 21st, 2010 @ 3:44am

      Re:

      Can't wait to see this new "model" that will work for every artist

      I really believe that this single idea is what is causing the most friction in this new digital landscape for the industry. There is no "silver bullet" for making money in the music industry anymore. You actually have to be creative and unique to be successful (and talented, don't forget that!) and what works for one artist may not work for another.

      It is sad that the demand for creativity in a industry that is supposedly built around it causes such trouble.

      work when they are no longer a band.

      It's already been slapped down twice, but I just can't pass it up. Really? This single sentence (demand? requirement?) does a excellent job highlighting the rampant entitlism in the music industry. (or, perhaps more specifically, the recording industry?) Thinking like this is an excellent way to disconnect yourself from your fans, most-- if not all-- of whom have to work every day to get paid. When you are disconnected from your fans they will not feel bad for pirating your music and certainly won't want to give you money. (Note: This is bad.)

       

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    identicon
    a, Oct 21st, 2010 @ 10:27am

    there is other world than YouTube ...

    ... just go for ... Dailymotion or any othe plaform ...

     

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    identicon
    Anonymous Coward, Oct 21st, 2010 @ 11:45am

    "rampant elitism in the music industry"

    translation:

     "I think i should decide the rules for other people and their art. I'm going to illegally take their music without permission. If they can't tour to support themselves, tough. If they're no longer together as a band, tough. They probably made enough money already, so even though their content is still for sale in the market, I'm still going to illegally take it."

    I also love how you people are constantly making up phrases that justify you ripping off artists. "Old model" is one of my faves.

    There is no "old model". There is this model: I create. I decide what I wanting exchange for my content. You can accept or decline the trade. You can not take it without my permission.  Period.

    That how business models work.

    But no model can function if it is being corrupted by illegal behavior.

    It'll be fun a year from now to be looking back at how easy it once was for you to rip off artists, and tell you to just "get over your old model".

     

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      Mike Masnick (profile), Oct 21st, 2010 @ 12:06pm

      Re:


      There is no "old model". There is this model: I create. I decide what I wanting exchange for my content. You can accept or decline the trade. You can not take it without my permission. Period.


      I think I understand the source of your confusion. No one's talking about "taking." People are simply talking about making their own copies -- i.e., creating competition based on supply. So, you're correct that the model is that you create and set a price... but there's more to it than that. The price is not actually set by the creator, but by the market -- the intersection of supply and demand.

      All we're saying is that the supply is high, and that's driving the cost down. It doesn't mean that you can't make money -- in fact, we've shown lots of ways to make money. But, you seem to be mistaken in recognizing what's happening. It's not about "taking," it's about competition.

      That how business models work.

      When you ignore supply and competition, that's NOT how business models work, it's how business models fail. Which is what happening to you.

      It'll be fun a year from now to be looking back at how easy it once was for you to rip off artists, and tell you to just "get over your old model".

      Yes, please, let's check back in a year and see.

       

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      The Infamous Joe (profile), Oct 21st, 2010 @ 12:23pm

      Re:

      That how business models work.

      I am not in the recording business, nor the music business. I am in a field that is much less risky than the entertainment business. But it's good that you understand that you are in a business, and that not all businesses survive. You are not entitled to make money just because you learned a few power chords and can scream into a microphone. You are entitled to the chance to try.

      Did you know that, back when Record Labels shipped vinyl records all over the country, they used to *factor in* the chance that a few would break during shipment. One in every 10, they said. Had they dumped millions of dollars into making sure not a single record broke, it would be a waste of their money, because they could never achieve their goal. After all, some things you just can't change, and you have to accept. Now there is piracy, and it is inevitable. For whatever their reasons, some people don't feel the need to buy a non-scarce product. You can tilt at all the windmills you'd like for as long as you want, but it's not going to change. So, accept it. Factor it in. Or, just maybe, use it to your advantage.

       

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        John Paul Jones, Oct 21st, 2010 @ 1:42pm

        Re: Re:

        "After all, some things you just can't change, and you have to accept. Now there is piracy, and it is inevitable. For whatever their reasons, some people don't feel the need to buy a non-scarce product. You can tilt at all the windmills you'd like for as long as you want, but it's not going to change."

        LOL. Sure pal, whatever you say.

        I'm sure the current landscape will forever remain one of free everything; hundreds of thousands of people working to entertain you for nothing. Unicorns and skittles for everyone!

        At least you were brave enough to admit you have no idea what goes on in the music business. I guess things might even be looking up for you if it were just music that was being ripped off. But the thing is...

         

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          The Infamous Joe (profile), Oct 21st, 2010 @ 2:01pm

          Re: Re: Re:

          I never said I don't know what goes on inside the music business. I've actually done a moderate amount of research into the subject. I said I wasn't *in* it. From the outside, most of you ProIP people look awfully foolish.

          What I meant by the paragraph you quoted (without my permission, you pirate!) is that you can focus on the people who don't want to pay you, but chances are you won't convince them, as they were never your customer. OR you can focus on the people who are already giving you money, and make them want to give you *more* money.

          Further, you can leverage the pirates to act as free marketing, since they probably weren't going to give you money anyway, to bring in more people who *are* willing to give you money.

           

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          Mike Masnick (profile), Oct 21st, 2010 @ 2:05pm

          Re: Re: Re:

          I'm sure the current landscape will forever remain one of free everything; hundreds of thousands of people working to entertain you for nothing. Unicorns and skittles for everyone!

          Who said anything about "everything" being free? Or that people would entertain for nothing? We've actually said the exact opposite. We've talked about how they can earn more money, by understanding what to sell (and what to keep free).

          Why must you continue to make up strawmen? Is your own understanding of this so weak that you have to lie about us? Sad.

           

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          Karl (profile), Oct 21st, 2010 @ 2:43pm

          Re: Re: Re:

          I'm sure the current landscape will forever remain one of free everything

          It's not, and will never be, "free everything." Things that can be copied for free, however, will always be copied for free.

          Over the past ten years, piracy has only increased. The percentage of people who believe piracy is acceptable has only increased. Even in the face of more draconian laws, harsher punishments, and ever-more-desperate attempts at public "education" (i.e. indoctrination).

          So, you can bury your head in the sand all you want. Feel free, nobody here will stop you. All you're doing is guaranteeing your failure. But those who actually want to succeed and make money will take these changes and embrace them.

          p.s. You might want to be more careful about your choice of user name.

           

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    John Paul Jones, Oct 21st, 2010 @ 1:37pm

    "No one's talking about "taking." People are simply talking about making their own copies -- i.e., creating competition based on supply. So, you're correct that the model is that you create and set a price... but there's more to it than that. The price is not actually set by the creator, but by the market -- the intersection of supply and demand."

    It's amazing how much of what you write is based on hilarious logical fallacies. I guess it's easy tho when you consistently ignore the most cogent points; ones that invariably blow wide holes in your "models"

    When people shoplifted a record from a record store, they were taking a copy. One that was made at a pressing plant. As many could be made as necessary.

    But it was still theft.

    And it is about taking. You know that. That is why supply is so high. The glut of illegally obtained copies.

    You're not fooling anyone, and your cowardly refusal to admit what is in plain sight defines what kind of person you really are.

     

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      Anonymous Coward, Oct 21st, 2010 @ 1:55pm

      Re:

      Plain sight? All I see is basic human nature mixed with basic human culture. It sucks that the past isn't the present but that's progress for you.

       

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      Mike Masnick (profile), Oct 21st, 2010 @ 2:03pm

      Re:

      When people shoplifted a record from a record store, they were taking a copy. One that was made at a pressing plant. As many could be made as necessary.

      But it was still theft.


      Exactly. They were *taking* -- i.e., removing the copy from where it existed before.

      But that's not what's happening here.

      And it is about taking. You know that. That is why supply is so high. The glut of illegally obtained copies.

      Ignorance of basic economics does not look good on you.

      You're not fooling anyone, and your cowardly refusal to admit what is in plain sight defines what kind of person you really are.

      Falsely claiming I say stuff you don't like because you don't understand what I've actually said says a lot more about the kind of person you really are.

      I'm not trying to "fool" anyone. Why would I do that? I am HELPING musicians earn more money. I note you never even responded to the debunking of your ridiculous claim about me being Marxist.

      Your continued inability to comprehend these concepts is disappointing.

       

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    John Paul Jones, Oct 21st, 2010 @ 2:22pm

    "Ignorance of basic economics does not look good on you."

    ha. You ignored what I wrote because you know it's true.

    "I'm not trying to "fool" anyone. Why would I do that? I am HELPING musicians earn more money."

    By your lack of support for IP? By your hysterical hyberbole about COICA? By suggesting gimmicks that can only work for a handful of musicians? You have no idea how difficult it is for musicians to survive, tour and record as it is, and then you claim you're helping them by encouraging the devaluation of their recorded art?

    You're a real piece of work. But as John Lennon once said, instant karma's gonna get you.

     

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      Mike Masnick (profile), Oct 21st, 2010 @ 2:38pm

      Re:

      ha. You ignored what I wrote because you know it's true.

      John, so far in this conversation -- as anyone can see -- you've repeatedly ignored the points I've raised. I have not ignored any of your points but responded to each and every one of them. Your claim that supply was high due to piracy is flat out incorrect. Supply is high due to the *nature* of the content, which is non-rivalrous and non-excludable. This is why I suggested you learn some basic economics. You choose not to at your own risk.

      By your lack of support for IP? By your hysterical hyberbole about COICA? By suggesting gimmicks that can only work for a handful of musicians?

      By explaining economics to them so they know that artificial scarcity can hold them back? Is it "hyperbole" to point out a blatant prior restraint problem? I don't think so. And if you think I'm suggesting "gimmicks" then you're not paying attention (again). And we've yet to see any evidence that understsanding basic economics and applying smart business models "only works for a handful of musicians." You know what DID only work for a handful of musicians, though? Playing the major label lottery, hoping to get picked, signed and screwed over while praying that maybe one day way off in the future you might recoup and actually get some cash.

      A lot higher percentage of artists embracing the stuff I talk about are finding success than those that went down the route you seem to prefer.

      You have no idea how difficult it is for musicians to survive, tour and record as it is, and then you claim you're helping them by encouraging the devaluation of their recorded art?

      I know *damned* well how hard it is to survive, tour and record. I work with lots of musicians, and it's incredibly tough. That's why I can't understand why you fight the models that help them do better. So odd.

      And no one's talking about "devaluing" music. You don't "devalue" art by applying smart business models. You *increase* it's value.

      Again, you seem to think I've said stuff I do not. It would help you quite a bit if you stopped doing that.

       

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      Karl (profile), Oct 21st, 2010 @ 2:48pm

      Re:

      You have no idea how difficult it is for musicians to survive, tour and record as it is

      Just my two cents:

      Having done all of the above, I know damned well how hard it is.

      And I also know that you're full of it.

       

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        John Paul Jones, Oct 21st, 2010 @ 2:58pm

        Re: Re:

        "And I also know that you're full of it"

        Oh really?

        Please do explain from your position as a "noise musician".
        http://www.techdirt.com/profile.php?u=karlheinz

         

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          Karl (profile), Oct 21st, 2010 @ 5:14pm

          Re: Re: Re:

          Please do explain from your position as a "noise musician".

          Well, not just a noise musician, but also a guy who worked in various low-level music industry jobs, and who knows half the rock and underground musicians in Boston. Not that it really matters, I guess, and I'll stop because it might sound like bragging (and believe me, it's nothing to brag about).

          Anyhow. As you might guess, noise music is one of the most unpopular forms of music out there (intentionally). When I started, back in 1998, the scene was just coming off of a "popular" phase due to Relapse (a metal label) releasing some noise records.

          The scene was fractured. Nobody was exposed to noise (obviously it wasn't played on the radio), and you could count the number of noise-friendly record stores in the U.S. on one hand. Live shows would gather maybe ten or fifteen people, most of whom were dragged there by the one or two guys in town who actually liked noise.

          Fast-forward ten years. There are now multiple festivals, spanning two or three days, that exclusively feature noise acts. (You can read about a Boston fest here.) More labels - selling physical releases - are cropping up by the day. Noise and industrial pioneers from the 80's are coming out of retirement to perform. There's even enough of a market to support new, "boutique" noise synth manufacturers (one of which - Flower Electronics - I used to work for).

          What happened? The internet. Some of it was artists promoting their music on stuff like MySpace, or fans meeting on NoiseFanatics. But quite a lot of it was peer-to-peer file sharing. Suddenly, those lonely kids were able to share music, recommend stuff, talk about noise, etc. It also allowed people to discover more noise artists, and hear what they sounded like.

          So: "stealing" music grew the scene, and allowed everyone to gain fans and make money. Noise still isn't very popular, and only a handful make a living from it, but that's a handful more than there were before.

          It's not just noise, either. Indie and underground music of all forms are entering a similar rennaissance. Obviously it's been affected by the economy, as everything has. But even so, more artists are making money now than ten years ago.

          Just in case you're curious: none of the musicians I've talked to about file sharing feel they're being "ripped off" by piracy. The ones who are against it are conflicted - they want to make money, but also realize that these are their fans, and they don't want to attack them. The majority, however, either don't care or are all for it. And every single musician I've met - even the ones on major labels - are far more concerned about labels ripping them off than piracy.

           

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          Anonymous Coward, Oct 23rd, 2010 @ 4:49pm

          Re: Re: Re:

          As opposed to your position as a "troll musician"?

           

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    Anonymous Coward, Oct 21st, 2010 @ 3:13pm

    "Your claim that supply was high due to piracy is flat out incorrect."
    -Mike Masnick

    Remember this one, folks. Classic. Copy it and post it in every piracy discussion you engage in.

    "Supply is high due to the *nature* of the content, which is non-rivalrous and non-excludable."

    Bootlegging music has existed since the invention of the record player. It always will. Mass infringement is only possible now because legislation has not yet caught up with the technology that facilitates mass infringement. At least until this year.
    Not a great surprise, as the internet is still in its infancy. However the moment legislation is enacted, every site dedicated to infringement, making money illegally on the backs of artist's content, can disappear from US computer screens. Sociopaths and nerds will still bootleg in the egregious manner they seem to think they're currently entitled to rather than purchase their music legally, but for the masses, the free lunch will end.

     

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      Mike Masnick (profile), Oct 21st, 2010 @ 3:18pm

      Re:

      Remember this one, folks. Classic. Copy it and post it in every piracy discussion you engage in.

      Yes, the truth is pretty important. Glad you finally admit it.

      Bootlegging music has existed since the invention of the record player. It always will. Mass infringement is only possible now because legislation has not yet caught up with the technology that facilitates mass infringement. At least until this year.

      We're not talking about infringement. We're talking about the fundamental nature of digital recordings.

      However the moment legislation is enacted, every site dedicated to infringement, making money illegally on the backs of artist's content, can disappear from US computer screens.

      Oh my goodness. You actually think COICA will do that? I give up. You're too far gone for any help.

      sociopaths and nerds will still bootleg in the egregious manner they seem to think they're currently entitled to rather than purchase their music legally, but for the masses, the free lunch will end.

      For your info, I don't use any file sharing programs. I buy my music. But you're pretty far lost if you honestly think that (a) COICA will slow file sharing down at all or (b) that such a law would actually impact sales.

       

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    John Paul Jones, Oct 21st, 2010 @ 3:22pm

    Well Mike,

    we shall see, won't we? ;)

     

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      Mike Masnick (profile), Oct 21st, 2010 @ 4:28pm

      Re:

      we shall see, won't we? ;)

      One hopes not. I mean, not that COICA will actually help, but unlike some people, I prefer not to crap all over the First Amendment because some fools can't figure out basic economics.

       

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    John Paul Jones, Oct 21st, 2010 @ 4:50pm

    There you go again with your hysterical hyperbole, scare tactics and misrepresentation.

    Explain how the blocking of a site "dedicated to infringing activities" (actual language in the bill), impedes freedom of expression.

    Your agenda is obvious to anyone that can read.

     

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      Mike Masnick (profile), Oct 21st, 2010 @ 5:21pm

      Re:

      There you go again with your hysterical hyperbole, scare tactics and misrepresentation.

      None of those three things is accurate. Why the compulsive exaggeration and misrepresentation on your part?

      Explain how the blocking of a site "dedicated to infringing activities" (actual language in the bill), impedes freedom of expression.

      Simple.

      (1) The First Amendment case law is clear that if you are going to restrict any kind of speech (and, yes, a website is speech) due to infringement, you are only allowed to restrict the infringing speech. Blocking an entire website violates is prior restraint on all of the other speech on the site.

      (2) What is considered "dedicated to infringing activities" by ignorant fools one day, is often the next cultural revolution. The player piano was considered "dedicated to infringing activities." As was radio. Television. Cable television. The photocopier. The VCR. The DVR. The MP3 player and more. Do you honestly think that we would have as much expression as we do today if all those things had been banned by ignorant souls like yourself when they were first introduced?

      "Dedicated to infringing activities" is what clueless folks claim of any new technological innovation they don't understand.

      Please don't let your ignorance get in the way of innovation and free expression.

       

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        John Paul Jones, Oct 21st, 2010 @ 5:52pm

        Re: Re:

        1.)Post whatever case law you're referring to. Where the language is "you are only allowed to restrict the infringing speech".

        That's like saying you couldn't block a child porn site because there was one instance of legal porn on it. Ridiculous.

        2.)Everything in here is also ridiculous. None of the examples you gave centered around illegal activity.

        You're back to apples and oranges again.

         

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          Karl (profile), Oct 21st, 2010 @ 7:14pm

          Re: Re: Re:

          That's like saying you couldn't block a child porn site because there was one instance of legal porn on it.

          Ah, wonderful. If you can't win by rational argument, compare your opponent to child molesters. A not-so-subtle variation of Goodwin's Law.

          None of the examples you gave centered around illegal activity.

          According to Hollywood and the recording industry, all of them did. In fact, Hollywood believed it so much that they took it all the way to the supreme court.

          Until that Supreme Court ruling, the VCR could very easily be characterized as "centered around illegal activity."

          Maybe you should do some research before you reply.

           

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            John Paul Jones, Oct 21st, 2010 @ 7:45pm

            Re: Re: Re: Re:

            LOL. Perfectly aware of the betamax case there pal, but it has nothing to do with what I was talking about.

            None of the examples you gave centered around illegal activity.

            Betamax might have gone to court but it wasn't and isn't illegal.

            Pirating music was and is illegal.

            Try again.

             

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              Mike Masnick (profile), Oct 21st, 2010 @ 11:06pm

              Re: Re: Re: Re: Re:

              LOL. Perfectly aware of the betamax case there pal, but it has nothing to do with what I was talking about.

              None of the examples you gave centered around illegal activity.

              Betamax might have gone to court but it wasn't and isn't illegal.


              Um, do you even know what the Betamax case was about? It was about the industry claiming that YES indeed, it was illegal.

              Pirating music was and is illegal.

              And, at the time, the MPAA claimed that the Betamax was about pirating TV and was and is illegal. Or did you not know that?

               

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                John Paul Jones, Oct 22nd, 2010 @ 9:53pm

                Re: Re: Re: Re: Re: Re:

                What is your damage?

                I don't care what MPAA *CLAIMED*. That is immaterial.

                What we're talking about is something that already *IS* illegal. On the books.

                Why do you constantly try to support your positions with apples and oranges comparisons?

                 

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                  Mike Masnick (profile), Oct 22nd, 2010 @ 10:02pm

                  Re: Re: Re: Re: Re: Re: Re:

                  What is your damage?


                  Being correct is not damage.

                  I don't care what MPAA *CLAIMED*. That is immaterial.


                  Um. Actually it's very material, because this is the same damn thing.

                  What we're talking about is something that already *IS* illegal. On the books.


                  No, what is illegal and on the books as illegal (well, really, a civil infraction) is infringing on copyright law -- which is what's done by the *users* not the sites that let people post links. The sites, very much like the VCR, are simply the tools that are being used. And, yes, despite your false assertion, what the VCR was being used for was "on the books" illegal as well (making unauthorized copies). So, nice try.

                  And, I notice that you didn't apologize and admit your ignorance of the case law before. Odd. Feel free. It's always great when someone finally learns a thing or two.

                   

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            John Paul Jones, Oct 21st, 2010 @ 7:52pm

            Re: Re: Re: Re:

            "Ah, wonderful. If you can't win by rational argument, compare your opponent to child molesters. A not-so-subtle variation of Goodwin's Law."

            I wasn't comparing anyone to a child molester, you ass.

            I was using the example of a website that is blocked for illegal activity and can not be exonerated for said activity because they happen to do something illegal elsewhere on the site.

            It's proof that if a site's predominant MO is illegal behavior, they get blocked.

            I'm curious, why are you so anxious to defend illegal behavior and ripping off artists?

            Own up to it or not, but that is exactly what all of you are doing here.

             

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              Mike Masnick (profile), Oct 21st, 2010 @ 11:12pm

              Re: Re: Re: Re: Re:

              I was using the example of a website that is blocked for illegal activity and can not be exonerated for said activity because they happen to do something illegal elsewhere on the site.

              It's proof that if a site's predominant MO is illegal behavior, they get blocked.


              Once again demonstrating ignorance of the law. Again I suggest looking up the Pappert ruling.

              This article about the ruling might help you to stop making statements that are clearly wrong as a matter of law: http://news.cnet.com/Court-strikes-down-Pennsylvania-porn-law/2100-1028_3-5361999.html

              I'm curious, why are you so anxious to defend illegal behavior and ripping off artists?

              No one is defending ripping off artists. Not sure why you keep making that claim. We spend a lot of time *helping* artists make more money. And, at the same time, we believe pretty strongly in the concept of the First Amendment.

              I guess we really should be asking why you are against the First Amendment and in favor of prior restraint for speech you don't like.

               

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              Karl (profile), Oct 22nd, 2010 @ 4:21pm

              Re: Re: Re: Re: Re:

              I wasn't comparing anyone to a child molester, you ass.

              So you couldn't think of any examples of "illegal activity" other than child pornography. Right.

              In any case, Mike just cited plenty of cases where judges have ruled against your opinion, so I won't bother here.

              I'm curious, why are you so anxious to defend illegal behavior

              I do not believe non-commercial infringement should be illegal in the first place. Copyright's sole purpose is to benefit the public through greater access to art, and non-commercial sharing supports that purpose.

              and ripping off artists?

              I do not support "ripping off" artists. But file sharing helps artists prevent being ripped off, and helps them make more money. Here's how:

              1. It increases awareness about the art in question, which grows the market, allowing artists (and satellite industries) to make more money. I wrote about my experiences with this above, after you asked, but apparently didn't bother to read the reply.

              2. It bypasses the publisher's monopoly on promotion and distribution. Publishers (labels especially) have a long and sordid history of ripping off artists. That's because they had a monopoly on publishing and promotion, and whenever you have a monopoly, you're guaranteeing the exploitation of both workers and consumers, since neither has any other option other than working with the monopolists. Breaking that monopoly will help artists, and prevent them from being exploited.

              So, by fighting against non-commercial file sharing, you're fighting for the exploitation of artists.

              For the perspective of someone much deeper in the music business than I am (she's a multiple Grammy winner), read Janis Ian's take on it.

               

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          Mike Masnick (profile), Oct 21st, 2010 @ 11:01pm

          Re: Re: Re:

          1.)Post whatever case law you're referring to. Where the language is "you are only allowed to restrict the infringing speech".

          That's like saying you couldn't block a child porn site because there was one instance of legal porn on it. Ridiculous.


          Funny you should use that example. You might want to look up Center For Democracy & Technology v. Pappert, in which a law that required ISPs to shut down certain websites accused of containing child porn was ruled unconstitutional under the First Amendment for not be able to *just* block the illegal speech.

          Since you appear to be wholly unfamiliar with the concept of prior restraint and the VERY high barrier you need to get past it, I would suggest looking up Nebraska Press Assʼn v. Stuart. Obviously a very different fact pattern, but it does establish the high barrier needed to get around prior restraint.

          Another bit of case law you might want to look up is Near vs. Minnesota. Also one of the key prior restraint cases. Similar to COICA, it dealt with a law that sought to bar publication of "illegal" newspapers, which were defined as "scandalous" or "malicious." Except, the courts said no luck, bub.

          And, just generally speaking, when it comes to First Amendment cases where judges have made it clear that you need to only restrict the specifically illegal speech, and nothing more, we've got Carroll v. President and Comm'rs of Princess Anne, which admonishes: "An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate."

          Surely, you're aware of all that, right?

          Everything in here is also ridiculous. None of the examples you gave centered around illegal activity.

          Um, what?!? Yes, in *RETROSPECT* you can now claim that, but at the time, *every one* of those were called out as being centered around illegal activity.

          So, now you appear to be ignorant of business, economics, the law *and* history. Any other subject you'd like us to disabuse you of your ignorance in?

           

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        John Paul Jones, Oct 21st, 2010 @ 5:58pm

        Re: Re:

        Oh, and btw,

        Russian sites that rip off American artists aren't covered by the 1st Amendment.

        ;)

         

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          Karl (profile), Oct 21st, 2010 @ 7:15pm

          Re: Re: Re:

          Russian sites that rip off American artists aren't covered by the 1st Amendment.

          Then I guess they're not covered by American copyright law either, right?

           

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      Karl (profile), Oct 21st, 2010 @ 5:31pm

      Re:

      Explain how the blocking of a site "dedicated to infringing activities" (actual language in the bill), impedes freedom of expression.

      One of the sites raided by Homeland Security (!) was a forum. Yes, they posted links to infringing movies (not on their servers), but most of it was discussions about movies.

      That's the thing: infringement isn't merely a way for "freeloaders" to "steal" content. It's also a tool in a dialog about that content.

      This particular site was also in the process of raising funds to support new filmmakers.

      That's not surprising; today's pirates are tomorrow's studios. Just look at Hollywood, which was founded by pirates.

       

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        John Paul Jones, Oct 21st, 2010 @ 6:01pm

        Re: Re:

        Most forums are smart enough to pull infringement links as soon as they can.

        If the site you mentioned was too stupid (or brazen) to do that, tough. Darwin for the win.

         

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          Karl (profile), Oct 21st, 2010 @ 6:51pm

          Re: Re: Re:

          If the site you mentioned was too stupid (or brazen) to do that, tough.

          Translation: If laws against infringement stifle free speech, tough.

           

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          Mike Masnick (profile), Oct 21st, 2010 @ 11:04pm

          Re: Re: Re:

          Most forums are smart enough to pull infringement links as soon as they can.

          If the site you mentioned was too stupid (or brazen) to do that, tough. Darwin for the win.


          Darwin? Huh? By having a gov't step in and block the natural process of the market? You're so confused.

           

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    John Paul Jones, Oct 21st, 2010 @ 7:08pm

    Childish. It's not gov's job to hold the hands of these people. Everyone else police's themselves, what excuses these people from the same responsibility? A judge would laugh at you if you tried to say these people's 1st amendment rights were being quashed.

    You can't do something illegal on a site and say it's excused because somewhere else on that site you're exercising your freedom of speech.

    Feel free to post a legal ruling that proves me wrong.

    I won't hold my breath.

     

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      Karl (profile), Oct 21st, 2010 @ 7:19pm

      Re:

      You can't do something illegal on a site and say it's excused because somewhere else on that site you're exercising your freedom of speech.

      No, but you can only restrain the illegal activity.

      That's what DMCA takedown notices are for. Nowhere in the warrants was it suggested that they ever received one, or didn't follow it.

      A judge would laugh at you if you tried to say these people's 1st amendment rights were being quashed.

      To borrow a phrase you love, "we'll see."

       

      reply to this | link to this | view in chronology ]

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    marak (profile), Oct 22nd, 2010 @ 2:27am

    I think that was the Mike Masnick version of a (what do you americans call it?) oh yeah, smackdown :P

    And on a side note, this threads gotta be getting to some sort of record by now. Mike you ever get the feeling some people just dont have any reading comprehension?

     

    reply to this | link to this | view in chronology ]

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    John Paul Jones, Oct 22nd, 2010 @ 11:22pm

    I can see that Mike Masnick's strategy is basically one of "throw as much shit as possible at the wall, and hopefully some will stick."

    "You might want to look up Center For Democracy & Technology v. Pappert, in which a law that required ISPs to shut down certain websites accused of containing child porn was ruled unconstitutional under the First Amendment for not be able to *just* block the illegal speech."

    Actually Mike, it wasn't "certain websites". They tried to do it via blanket filtering, instead of going after specific sites. Questionable filtering led to some innocent sites being inaccessible. But this case was a STATE issue. A Pennsylvania act against child porn, and some ISPs could only block on a national level; therefore some filtering could block sites in states Pennsylvania had no jurisdiction over. The case showed that regulation of the internet must be done on a federal level, as attempts to do it on a state level can violate interstate commerce rights.

    Mike then listed two cases that dealt with prior restraint. Unfortunately neither case had anything at all to do with any illegal activity, despite the fact that our subject matter is music piracy. An illegal activity.

    Prohibiting prior restraint is used to protect people who want to publish information or their opinions. Sites that facilitate piracy are covered under commerce law. If Mike has any examples of prior restraint used under commercial law, this conversation can continue.

    Otherwise, it's over.

     

    reply to this | link to this | view in chronology ]

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      Karl (profile), Oct 23rd, 2010 @ 1:23am

      Re:

      I can see that Mike Masnick's strategy is basically one of "throw as much shit as possible at the wall, and hopefully some will stick."

      As opposed to "throw as much shit as possible against the wall, and if it doesn't stick, blame the wall."

      They tried to do it via blanket filtering, instead of going after specific sites.

      No, they did not.

      The Attorney General had issued over three hundred orders requiring that specific web sites on the Internet be blocked.

      - http://www.cdt.org/speech/pennwebblock/index.php

      The entire ruling is available here, if you'd like to read it (I did). Both "URL filtering" and "DNS filtering" result in an entire site being blocked, but by far the most harm was done by blocking specific IP's at the direct request of the AG. Some of those sites that were blocked were Laura Blain's community organization site, "hudreds of thousands" of sites on a shared IP through AOL, and "upwards of 500,000" sites on Terra.es.

      The case showed that regulation of the internet must be done on a federal level

      If that's what you take away from the case, then you can't read.

      To be sure, the statute violated the Pike balancing test and laws regarding interstate traffic. But that was only a small part of the reason it was invalidated. It was also seen to burden speech, and constitute prior restraint; indeed, four times as many pages deal with these issues than the "interstate commerce" issue.

      Prohibiting prior restraint is used to protect people who want to publish information or their opinions.

      And kiddie porn, apparently...

      But in any case, all of those "pirate" sites were also used by people to publish information and their opinions. But apparently, that doesn't matter to you. If some user posts a link to a ripped DVD, then all of that information and opinion should just be tossed in the garbage.

      Sites that facilitate piracy are covered under commerce law.

      Even if, like those taken down by Homeland Security, they don't actually engage in any commerce? Yeah, that's fair.

       

      reply to this | link to this | view in chronology ]

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    Nick Dynice (profile), Oct 24th, 2010 @ 2:58pm

    I have managed to get ahold of part to and have posted both parts as one video here: http://blip.tv/file/4289340

     

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    postingoldtapes (profile), Oct 27th, 2010 @ 12:02pm

    OK, I didn't expect this...

    Hi, I only learned about this discussion yesterday. I had no idea this would suddenly become popular and become a cause celebre. To clarify: No, I don't have permission to post the 20/20 bit. But it wasn't ABC that caused it to not be available, but Universal. My personal view is that I am not, in any way, costing ABC anything. The video is not available for purchase, and if it were, my posting the clip I did would dramatically improve the market for it. I found my original files, and am encoding a 720 x 480 version to upload somewhere other than YouTube. Any suggestions?

     

    reply to this | link to this | view in chronology ]

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    postingoldtapes (profile), Oct 28th, 2010 @ 9:10pm

    OK, I've gone back to my original tape, and I've posted a higher resolution version to Veoh. When I say "high resolution", this is still a very old and crappy looking VHS tape.

    Here's the link.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    alex, Nov 23rd, 2010 @ 1:18pm

    Hide my IP

    If you want to hide IP address http://secretsline.biz a would be really useful.

     

    reply to this | link to this | view in chronology ]


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