Earlier this week, we wrote about BMG issuing a takedown to YouTube over a Mitt Romney advertisement that used a clip of President Obama singing one line of an Al Green song. As we noted at the time, this seemed like a clear fair use case. Also, people pointed out that it was clearly an attempt to stifle speech since BMG only went after the Romney commercial, and not the original clips of Obama singing. Realizing this, BMG then also issued takedowns for those videos. If YouTube wanted to retain its DMCA safe harbor provisions, it is supposed to keep those videos down for 10 days and then it could (but does not need to) restore them. However, Google has jumped the gun and restored the videos already (you can see it here), saying that the company made a determination that the content does not violate copyright laws.

At this point, the ball is back in BMG's court. Technically, it can now file a lawsuit against the uploaders of the video if it wants (so, the Romney campaign, the Associated Press and others). Also, it could potentially try to go after Google itself, claiming that the safe harbors no longer apply due to the early reposting. Of course, one would hope that BMG realizes that pursuing any of these strategies would lead to ridicule and, quite possibly, a court issued rebuke for wasting their time with a bogus copyright claim. Unfortunately, for reasons that remain a mystery to me, when it comes to copyright claims, many copyright holders fail to recognize this kind of likely outcome ahead of time.

We recently wrote about the RIAA's new war against software that can be used to record or download YouTube videos. As we noted, such software has substantial non-infringing uses, but the RIAA wants to ban it anyway. Michael Weinberg has a great response, in pointing out that just because something can be used illegally, it doesn't mean we ban it:

It is possible to use a banana to rob a bank.  It is also possible to use a phone to defraud people of millions of dollars.  But we do not make possession of a banana or the use of a phone illegal.  We make bank robbery and fraud illegal.  We do not outlaw bananas and phones because bananas and phones serve any number of socially useful services.  It would be dumb to outlaw them just because someone could use them in a bad way.

That’s why the test that the Supreme Court identified in the famous Betamax case is so useful.  As long as a technology is capable of “substantial noninfringing uses” we welcome it.  Because those substantial noninfringing uses are great to have, and we cannot stop innovation just because it can sometimes be abused.

On our last post about this, someone brought up the anti-circumvention issue, noting that if the software circumvents DRM, then under the DMCA it's illegal across the board. But all this really highlights is the insanity of the anti-circumvention provision and how it makes perfectly legitimate activity "copyright infringement." Think about it: if you use this to make a perfectly legal recording of some content, then none of the rights covered by copyright law have been infringed. And yet it's still illegal solely because of the circumvention? That makes no sense. How can it be illegal if no illegal copy was actually made?

The entertainment industry just won't quit trying to kill perfectly legal technologies with substantial non-infringing uses. Back during the big legal fight over Grokster, the RIAA insisted that it had absolutely no interest in stopping technologies people used to record things. In fact, Consumer Electronics Association CEO Gary Shapiro reminded them of this promise after the RIAA went after XM Radio's device to record broadcasts. It appears that the RIAA has no problem continuing to go against its word. Its latest move is to send a letter to CNET, asking it to remove tools from Download.com that can be used to record videos from YouTube. Of course, there a tons of legitimate uses for such tools. Just as you can legally record shows off of TV (thank you Supreme Court), you should be able to record stuff on YouTube (related: shame on Google for blocking such tools as well).

Of course, from the parts of the RIAA's request that have been made public by Greg Sandoval at CNET, it sounds like the RIAA isn't directly making a legal threat (which would be tough, given CNET's role as a fourth party service provider for third party tools which might be used to infringe), but rather appealing to its parent company, CBS, arguing that because such tools and their substantial non-infringing uses might also be used to record CBS content (again, just like the VCR), that they should want to put an end to them.. Thankfully, it sounds like CNET has no interest in complying.

However, given the RIAA's promises during the Grokster case that it had no interest in blocking such technologies, it seems that, once again, the RIAA has been shown as liars who have no compunction about blocking perfectly legal technologies, just because they haven't figured out how to adapt to modern times.

Google has continued to update its big "Transparency Report" with new data on specific content takedown requests from government agencies. With this latest update, Google has put out a blog post warning people that governments -- including those not normally associated with censorship -- are increasingly seeking to shut down speech for what appear to be politically motivated reasons:

We noticed that government agencies from different countries would sometimes ask us to remove political content that our users had posted on our services. We hoped this was an aberration. But now we know it’s not.

This is the fifth data set that we’ve released. And just like every other time before, we’ve been asked to take down political speech. It’s alarming not only because free expression is at risk, but because some of these requests come from countries you might not suspect—Western democracies not typically associated with censorship.

For example, in the second half of last year, Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn’t comply with either of these requests.

There are some interesting, if odd, specific examples, like the following:

Brazil: In December, we received an electoral court order that resulted in the removal of four orkut profiles for content related to political campaigns.

Canada: We received a request from the Passport Canada office to remove a YouTube video of a Canadian citizen urinating on his passport and flushing it down the toilet. We did not comply with this request.

Pakistan: We received a request from the Government of Pakistan's Ministry of Information Technology to remove six YouTube videos that satirized the Pakistan Army and senior politicians. We did not comply with this request.

Poland: We received a request from the Polish Agency for Enterprise Development to remove a search result that criticized the agency as well as eight more that linked to it. We did not comply with this request.

Spain: We received 14 requests from the Spanish Data Protection Authority to remove 270 search results that linked to blogs and sites referencing individuals and public figures. The Spanish Data Protection Authority also ordered the removal of three blogs published on Blogger and three videos hosted on YouTube. We did not comply with these requests.

United States: We received a request from a local law enforcement agency to remove a blog because of a post that allegedly defamed a law enforcement official in a personal capacity. We did not comply with this request, which we have categorized in this Report as a defamation request.

We received a request from a local law enforcement agency to remove 1,400 YouTube videos for alleged harassment. We did not comply with this request. Separately, we received a request from a different local law enforcement agency to remove five user accounts that allegedly contained threatening and/or harassing content. We terminated four of the accounts, which resulted in the removal of approximately 300 videos, but did not remove the remaining account with 54 videos.

We received a court order to remove 218 search results that linked to allegedly defamatory websites. We removed 25% of the results cited in the request.

This expansion of governments seeking to censor speech via Google takedowns is clearly worrisome, though it's good to see that Google at least investigates the details before taking down the content.

Following some filings by Megaupload's lawyers in the US, the US Attorneys office has shot back, asking the court to deny all of the company's requests. And, it goes even further than that: seeking to deny Megaupload the ability to use the topnotch lawyers it hired. This part is not new. Back in April, it sought to block Megaupload from hiring Andrew Schapiro from Quinn Emanuel, arguing that there's a "conflict of interest" because the DOJ argues that YouTube is a "victim" of Megaupload and could be a witness -- and Schapiro has represented and continues to represent YouTube in the Viacom case. Quinn Emanuel has also done some work for Hollywood. The thing is, big law firms like Quin Emanuel have a pretty detailed process to check for conflicts of interest, and assuming that Quinn Emanuel and its clients are okay with things, then how is it the government's place to complain other than out of some sort of childish desire to deny Megaupload the best legal representation it can find. The more we view the DOJ's actions in this and related cases, the more it becomes clear that they have a tendency to act like a bunch of little playschool children in these sorts of legal fights.

Separately, the government tries to reject the argument that Megaupload has made -- and which a New Zealand US judge has found compelling -- that for criminal proceeding to take place against a foreign company, that company needs to be served. However, since the law only allows for service on US addresses, Megaupload reasonably argues that it cannot be served (note: this only applies to the company as a defendant -- the individuals who were charged separately are a different issue). But the government argues this is crazy talk, and it's main argument is basically just to claim that such a reading of the law is absurd... and to say that it's fine to serve company officials once they're extradited to the US. In other words: "we're the US, bitch, and as long as we can extradite people here, we can sue their companies too, so shut up." The sense of entitlement in being able to bring criminal charges against foreign entities is astounding.

The US Attorneys also play some games with the filing itself, claiming that Megaupload cannot make such filings until the defendants appear in the court. In fact, they claim that by fighting extradition, Megauploads' execs count as "fugitives" from the law, and thus cannot file motions with the court. Of course, that's ridiculous. The whole point of filing these motions is to help show that the entire case is frivolous and that the extradition requests are excessive and unnecessary. For the US to respond to that by saying that such arguments can only be made after extradition is an argument that makes no sense. It's basically saying that they can only fight extradition after they've been extradited.

All in all, the arguments here are similar to the DOJ's arguments against letting Megaupload users get back their data. Basically, the DOJ was insanely over aggressive in shutting down Megaupload, creating a huge mess... Now, it's lashing out at anyone who seeks to fix a small piece of the mess, basically by saying that the mess has nothing to do with the DOJ's own actions.

Honestly, from the outside looking in, it sure looks like the DOJ is realizing just how weak its case is here, and is simply lashing out at anyone it can.

MIT's Tech Review had a fascinating article yesterday about a couple of "artist-coders" who had automated a system to turn YouTube comments into ebooks for sale on Amazon with somewhat (unintentionally) brilliant results, such as "Alot was been hard" by Janetlw Bauie:


The team who created this has put out an entertaining press release as well. In it, they point out how they're demonstrating some big questions about publishing in the digital age:

The GHOST WRITERS project's aim is to address and identify pertinent questions concerning the digital publishing industry's business models, as well as to draw the lines of new trends for a possible new kind of digital literature, after the web.

The project wants to raise questions like: who do YouTube videos/comments belong to? Where does authorship start and end? To what extent does the e-book format have to be reconsidered with regard to the traditional book form, and what are its most innovative opportunities? How could we act and work on it?

Indeed. When I first read the TechReview about this, my first thought was about how long it would be until they were sued for copyright infringement. Still, I was intrigued by this so I went to check out some of "Janetlw Bauie's" works... only to discover they're all gone. No one seemed to mention this anywhere, but the creators just noted that Amazon pulled them because "they could lead to a poor customer experience." Not sure that's really true, but... Either way, it seems unfortunate to have them just "disappear" (poof!) like that. Were these books really so problematic that they had to be deleted entirely?

Google's decision to be much more transparent about DMCA takedowns for search has revealed a swathe of absolutely ridiculously stupid DMCA notices. We've covered some already, but TorrentFreak has found some more -- including multiple cases of DMCA notices by copyright holders that aren't just against their own best interests, but are often against content they, themselves, put up. This isn't even a situation like Viacom suing YouTube over clips that Viacom's employees had uploaded. In those cases, at least, it involved attempts to make the clips look unauthorized.

Here, however, it appears to just be ridiculous bad processes in place to make sure DMCA takedowns are legit. There is, for example, the case of Warner Bros. sending a DMCA takedown for the IMDB page of its own movie, Wrath of the Titans. It also demanded that the Guardian newspaper's showing of the official trailer of the movie be removed from Google search. Ditto the official trailer on Apple's site and Hulu's site. And, let's not forget the BBC America news article about how the film might be "critic proof" as well as a page from Charleston South Carolina's newspaper, The Post & Courier about the film and telling people where to go see it. Though, I guess Warner Bros. lawyers didn't want you to see it at all, because all of those were DMCA'd for being in Google's search.

It's almost as if the lawyers at Warner Bros. are so clueless that they were actively trying to hide any legitimate marketing for the movie. I'm sure their colleagues in the marketing department must have been just thrilled about these efforts.

The TorrentFreak article lists out a bunch more takedowns, directed at news sites, often promoting the works in question:

In addition to the Warner instance mentioned above, the RIAA asked Google to delist a review of the album Own The Night published on The Guardian. The artist behind the album is Lady Antebellum, signed to RIAA-member Capitol Records.

Even more worrying, the RIAA asked Google to delist Last.fm’s entire Electro Pop section because they thought it carried a pirate copy of All About Tonight by Pixie Lott.

Warner also reappeared later on, asking Google to delist a page on news site NME which lists information on the latest movies, which at the time included information on the movie Hall Pass. The same page on NME was targeted on several other occasions, including by anti-piracy company DtecNet on behalf of Lionsgate, who had info on The Hunger Games delisted.

Hollywood Reporter didn’t fare much better either. Sony Pictures asked Google to swing the banhammer against the popular news site after it published an article called “Trent Reznor Releases Six Free Tracks From ‘Girl With the Dragon Tattoo’ Soundtrack” and Sony mistook it for a DVDRIP.

But as soon as Sony’s piracy fears on the first ‘Dragon Tattoo’ movie had subsided they were back as strong as ever with the sequel. This time the sinner was Wikipedia who dared to put up an information page on the movie The Girl Who Played With Fire. Luckily Sony were on hand to ask Google to delist the page.

The more you play around, the more examples like this you can find. Zuffa, the notoriously litigious folks behind UFC, demanded a Hulu link be disappeared from Google search, despite Hulu only posting authorized content.

Sony Music and the Estate of Michael Jackson tried to get a page on Last.fm for Slave to the Rhythm removed as infringing.

Let's see... we've got Universal Music/Interscope (by way of Web Sheriff) demanding that Google delete a link to Wall Street Journal post (reprinted from Mashable) embedding an official Lady Gaga video from last year. Oh, and that wasn't all. They also went after an MTV news article about the video shoot -- which did contain some footage that someone had shot from a distance, but that seems extreme to kill the whole article. Ditto for a NY Post article.

Sony Music Nashville was so worried about a Carrie Underwood leak that it tried to erase a Reuters archive page from 2008 that just lists a bunch of headlines -- none of which has anything to do with Carrie Underwood.

TorrentFreak noted above that the RIAA asked the Guardian to takedown its review of the Lady Antebellum album Own the Night, but that wasn't the only target. The RIAA demanded that Google remove a link to a review of Lady Antebellum songs on AOL's music site. Lady Antebellum was clearly so upset by AOL breaching its copyright that the band posed for a photo at AOL studios.

For most musicians, getting onto Pitchfork is a goal. For the RIAA? Well, apparently Pitchfork must be stopped. That's why it DMCA'd the tastemaker website for daring to post an article about Coldplay, in which they embedded a song directly from Coldplay's own YouTube account. The article even notes that the band had released the song to Pitchfork. Nice going RIAA, trying to stop your own bands from getting the publicity they seek.

Anyway, that's just after a little bit of searching... I'm sure we'll have more examples going forward... Thanks to the folks at Torrentfreak for their initial research which inspired some of these other findings as well.

Last week we reported that videos were currently being uploaded to YouTube at the rate of 72 hours every minute, and asked how anybody could expect Google to pre-screen such a deluge. Techdirt Insider xenomancer has gone a little further by working out how much it would cost to screen that material for potential copyright infringement, doubtless something the media industries would love to see imposed.

Most of the calculation is straightforward, but there's one key variable: the kind of person who will do the screening. You can't just use random people off the street, or starving artists, or bored software engineers, because the crucial question they must answer is: does too much of this video infringe on somebody's copyright? Only one class of person is qualified to answer that, and hence to take on this job: judges. Or, more specifically:

horribly underpaid judges who happen to be extremely efficient at determining the copyright status of each video they watch and choose, of the little free will they have, to consider all video uploaded.

Using the fact that the average pay for a judge in Silicon Valley is apparently $177,454, and that based on the volume of uploads and number of hours in a working day, a mere 199,584 judges would be required as screeners, this gives us the final figure for the cost of checking properly those 72 hours per minute:

$36,829,468,840 per year.

Interestingly, Google's revenue for 2011 was $37,905,000,000.

Absurd as this calculation may be, it does reveal the key problem with unthinking calls for YouTube videos to be pre-screened for possible infringement: only suitably-qualified individuals can do that, and eventually you run out of them. In other words, attempts to police rigorously online materials are doomed to fail by the nature of the copyright system itself. Basically, copyright does not scale.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Summary of Parts One and Two: The essential balance of copyright between incentives for creators and the feeding of a rich and unlicensed public domain has been undone by a long series of misguided efforts to save copyright by making its rules both stronger and less enforceable at the same time. The industry’s tactics have backfired, eroding what was left of any moral authority for obeying the law. And that was the chief (and most efficient) mechanism for enforcement all along.

The repeated and retroactive extension of copyright terms, largely at the behest of the Disney Corporation, has had the unintended consequence of creating a nation of felons, both technically and in spirit. According to one provocative study by John Tehranian, we all violate copyright unintentionally many times a day. And to the extent we realize it, we don't care.

To return to the parking analogy, the result of these legal changes has been to paint every curb a red zone—it's now illegal to park anywhere. The result is not perfect enforcement of copyright but its opposite. No one obeys the law or thinks they ought to. Getting caught is more or less a random event, and rational consumers won't change their behavior to avoid it.

The center will not hold. Large media holding companies are becoming desperate, expending their resources not to find new ways of making money but to secure passage of increasingly draconian laws (SOPA) and treaties (ACTA) that give them more, largely unusable new powers. Even if passed, these legal tools will do little to improve legal enforcement. But they are certain to cause dangerous and unintended new harms.

At the same time, the marketing machines of these same companies have convinced us that our right to enjoy content is inherent—the American Way. Once offered, we imagine free content should always be free, even if the rightsholder changes its mind or intended all along to attach conditions to consumption based on time or place or the ability to associate mechanisms, such as advertising, that allowed for indirect revenue generation.

Americans don't understand that subtlety, and rightsholders have given them no reason to try. Public education efforts have been pathetic. Instead of teaching consumers the costs and dangers to the delicately-balanced system from copyright infringement, they emphasize moral and legal prohibitions that are rightly perceived by consumers as petulant, cynical, and amusingly out-of-touch.

These campaigns, for starters, say nothing about the economics of content production and distribution. They are morality tales, narrated by fabulists who pride themselves, in their day jobs, on their mastery of manipulation and misdirection. It's as if Darth Vader sat down with preschoolers to talk about why they shouldn't throw stones at the Death Star because of the potential for property damage.

Consider just a few examples below: YouTube's mandatory copyright "school" for violators and the classic 1992 "Don't Copy that Floppy:"


Clearly, not much has changed over the last twenty years in efforts to change public perceptions and behaviors. The Hollywood that can produce blockbuster movies somehow can't make a PSA that isn't a self-parody.

I think the public can be educated, and should be. Here's where I part company with those who reject copyright altogether. The theory of copyright—limited monopoly in exchange for a rich public domain—is still a good one, and the system created by the English, adapted by early Congresses, had the virtue of being largely self-enforcing and therefore efficient.

It is the 20th and 21st century imbalance in copyright, and not copyright itself, that must be fixed. And it can be fixed. There is a way out of this dangerous and increasingly tense cold war between content industries and their customers. Here's a simple three-step solution:

1. If rightsholders want consumers to obey the law and support their preferred business model, they first need to stop making it impossible for consumers to follow the rules. Copyright needs to be weakened, not strengthened.
2. Content industries need to end the stalling and excuses—perhaps understandable in 1998, when I first wrote about digital distribution in "Unleashing the Killer App," but not now, nearly fifteen years later. They need to embrace digital media and new channels fully, even if doing so means tolerating a considerable amount of unauthorized distribution and reuse as working models for profit-generation rapidly evolve.
3. Public education needs to focus not on self-righteous indignation but on collaborating with consumers on finding ways to compensate creators for the value of their work. If consumers understood the economics of content creation and distribution, and given an easy way to cooperate, they'd do it.

Ironically, there's every reason to believe that embracing a relaxed copyright regime and encouraging creative reuse would actually generate more revenue for creators. That, in any case, has been the lesson of every form of new media to be invented in the last hundred years or more.

Each of them was initially resisted and branded as illegal and immoral. Each of them—from the player piano to the photocopier to the VCR to the Internet—has instead offered salvation and riches to those who figure out the new rules for working with them and not against them. (Hint: network effects rule.) Rightsholders consistently confuse each fading media technology with the true value of the content they control. The medium is not the message.

For now, industry apologists—the MPAA, the RIAA, the U.S. Chamber of Commerce and others—are caught in a dangerous cycle of denial and anger. A growing number of consumers refuse to follow the current rules. So they lobby to make the rules stronger and the penalties more severe, amping up the moral rhetoric along the way.

But this only serves to starve the public domain more, undermining the basic principles of copyright. With the system increasingly out of balance, self-enforcement becomes even less likely. The law is impossible to obey, and rarely enforced. So consumers make up their own rules, for better or worse, with expensive and unnecessary casualties piling up on both sides.

Eventually, consumers and creators find the right balance and the most effective forms of compensation, regardless of the industry's efforts to cut off their nose to spite their face.

Then along comes another disruptive technology and a new round of customer innovation, and the cycle starts all over.

Rights holders remain stubbornly parked in the same old spots, afraid that if they move their vehicles at all they'll be doomed to circling the block forever, unable to stop until they permanently run out of gas.

The rest of us, meanwhile, are happily enjoying our flying cars.

Two years ago, we wrote about how YouTube took down the original "Rickroll" video of Rick Astley singing "Never Gonna Give You Up" -- perhaps the most well known internet meme ever. It seems that that video was taken down yet again, this time due to a "copyright claim from AVG Technologies." Not surprisingly, soon after the news of this came out the video was put back up.

TorrentFreak claims that this AVG is the same as the maker of the popular anti-virus software, who almost certainly has no legitimate copyright claim to the video. And while there are other options out there, as well, it once again raises some questions about bogus takedowns, and the "silence first, ask questions later" process that is almost mandatory under the DMCA. Sure, the world isn't suffering much from a bogus Rickroll takedown (and some may argue they benefit), but just the fact that random third parties seem to be able to take down super popular videos raises serious questions about why we've set things up to work this way.