Techdirt. Stories filed under "videos"

Judge Rejects Lawsuit Against YouTube As 'Frankenstein Monster Posing As A Class Action'

Mike Masnick — Thu, 16 May 2013 13:54:24 PDT

You may recall that soon after Viacom sued YouTube, the Premier League football association (which is notorious for aggressively seeking to enforce its copyrights) sued as well, and sought to turn its case into a class action lawsuit for basically anyone who might have had their copyright-covered works uploaded to YouTube. The court has now eloquently smacked that attempt down, pointing out that the issues for different individuals and organizations would be totally different, making it inappropriate to lump them all together.

Forty five years ago Judge Lumbard of the United States Court of Appeals for this circuit called a case a "Frankenstein monster posing as a class action." ... The description fits the class aspects of this case.

The putative class consists every person and entity in the world who own infringed copyrighted works, who have or will register them with U.S. Copyright Office as required, whose works fall into either two categories: they were subject of infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the "repeat infringement class"), or are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the "music publisher class"). Plaintiffs assert that there are "at least thousands of class members" the Repeat Infringement Class, and "hundreds" in the Music Publisher Class...

It then goes on to point out that YouTube is just the platform, and just because infringing content is uploaded to YouTube, it doesn't automatically make YouTube liable. It notes that "YouTube does not generate infringing material." And, given that, the situations of various potential class members is quite different. Then there's a strong point related to all of this: because there are all sorts of different issues related to copyright, "copyright claims are poor candidates for class-action treatment." Specifically, there would need to be specific evidence relating to each individual infringement, and that makes it silly to do this as a class action.

Here to make resolutions which advance the litigation will require the court to determine, for each copyrighted work claimed to have been infringed, whether a copyright holder gave notices containing sufficient information to permit the service provider to identify and locate the infringing material so that it could be taken down. That requires individualized evidence. Further, the analysis required to determine "fair use," and other defenses, is necessarily specific to the individual case.

The court points out that the benefit of a class action is that there's "an issue that is central to the validity of each of the claims in one stroke" but that's clearly not true with mass copyright claims. Given all that, the class certification (for both classes) was denied.

Permalink | Comments | Email This Story

YouTube Once Again Building A Paywall On Which Old Media Can Hang Itself

Mike Masnick — Tue, 7 May 2013 20:21:35 PDT

People seem really good at forgetting history. While most people realize that Google bought YouTube early on in that company's existence, they tend to forget that this was, in part, because YouTube was beating the pants off of Google's own online service called Google Video. The big difference? Google Video's launch focused very much on selling videos and using annoying DRM that had to check in with a server any time you wanted to watch. It was a complete and total failure, which probably cost an even larger amount when you realize it made Google more desperate to buy YouTube.

A few years later, Google tried again, playing up the ability to pay for videos... and once again it flopped pitifully. A 10 day test brought in just a little bit over $10,000 -- which is hardly worth the effort involved.

Perhaps the third time's the charm? People are reporting that YouTube is getting ready to launch a paywall feature, which may have 50 "channels" locked up behind the wall. The idea is to be more of a Hulu or Netflix-type competitor, though rather than a flat fee for access to all locked up content, YouTube thinks people will pay $1.99/month per channel. That seems... pretty high. Perhaps they're hoping that times have changed and what failed in the past is now okay because people are accustomed to paying for this kind of thing. However, I still have trouble seeing how this succeeds. If anything, this just seems like a tool with which Hollywood can hang itself. It may jump on this thinking that it's a great new way to build an online revenue stream, without realizing all the potential hazards.

Cable and satellite channels, which traditionally rely on a dual revenue stream model, are eyeing YouTube’s subscription service to generate revenue from older shows and new programming, according to another person familiar with the project.

I'm sure plenty of old school execs are thrilled about this idea... until they see the actual numbers. This isn't about helping the old industry adapt, but giving them the tools to see how unlikely they are to succeed with a paywall.

Permalink | Comments | Email This Story

States Continue To Make Photographing Or Taping Farms A Crime

Mike Masnick — Fri, 12 Apr 2013 10:48:00 PDT

Over two years ago, we wrote about an absolutely insane proposal in Florida that sought to make it a felony to photograph farms without permission. The bill tried to position it as "protecting farm intellectual property," but everyone knew the real reason: farmers were upset about animal rights activists photographing and videotaping animal cruelty and revealing it to the world. We hadn't heard much more about that until just recently. A month and a half ago, On the Media had a segment about how these kinds of bills were showing up in more states, and now the NY Times has done a big article on how these "ag-gag" laws are being pushed by lobbyists heavily influenced by big farm groups.

It appears that the positioning of these bills has moved away from "protecting farmer IP" and over to claiming that animal rights activists are involved in terrorism for exposing animal cruelty. Now, we certainly believe that some animal rights groups go way overboard in their campaigns, though they often just make themselves look silly when they do so. But these laws just seem crazy, and a clear restriction on First Amendment rights.

But a dozen or so state legislatures have had a different reaction: They proposed or enacted bills that would make it illegal to covertly videotape livestock farms, or apply for a job at one without disclosing ties to animal rights groups. They have also drafted measures to require such videos to be given to the authorities almost immediately, which activists say would thwart any meaningful undercover investigation of large factory farms.

ALEC (the American Legislative Exchange Council), a group famous for writing legislation for members of Congress, has a "draft bill" along these lines, which argues that the effort is to prevent attempts to use images and video to "defame the facility or its owner." That's insulting. First off, we already have defamation laws. If farm owners are defamed, let them use those laws. Second, truth is an absolute defense to defamation, and if they're taking a picture that accurately represents what's going on, it's difficult to see how that could, in any way, be any form of defamation. Third, and most importantly, just because one might use some tactic to defame someone (even if it's highly unlikely) that's no excuse, at all, for seeking to ban the activity entirely.

In the end, it's legal efforts like this that make people especially cynical about the political process. It's pretty clear that there's no good reason for such laws. Rather, the entire purpose is to protect some farmers who don't want their practices exposed.

Permalink | Comments | Email This Story

YouTube Won't Put Your Video Back Up, Even If It's Fair Use, If It Contains Content From Universal Music

Mike Masnick — Fri, 5 Apr 2013 11:52:00 PDT

Patrick McKay, who has been a harsh critic of some of YouTube's failings when it comes to the DMCA process and various takedowns, has highlighted a very serious issue with YouTube that has received little attention. YouTube now admits that, when it comes to some videos that contain content from certain "partner" companies, it won't repost those videos, even if the video uploaders file a counternotice and show that they're relying on fair use. YouTube claims that it will still keep some of those videos blocked due to "contractual" obligations:

YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.

In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.

If this sounds vaguely familiar to something in the past, you may recall that a few years ago, Universal Music and Megaupload got into a bit of a spat when UMG issued a questionable takedown of a song promoting Megaupload, which featured a ton of big stars singing the praises (literally) of Megaupload. Megaupload eventually sued UMG, but ended up dropping that lawsuit as a month or so later it had bigger legal issues on its hands, following the US's decision to shut down Megaupload. But, at the time, Universal Music made a strange claim that it had some sort of contractual agreement that allowed it take down videos like Megaupload's. YouTube quickly came out with a statement denying this, but the situations described in McKay's post certainly raise serious questions about this, and clearly suggest that YouTube has made at least some deals that effectively wipe out fair use for some users. I assume it will surprise next to no one that the key example that led McKay to discover this situation... also involved Universal Music.

As I noted at the time of that UMG/Megaupload spat that I believed the real issue might be YouTube's contract with Universal Music for Vevo -- and I suspect that's still the case now. As I said then, part of the "announced" deal was that as part of providing the backend for Vevo, YouTube would transfer over the videos of various UMG artists, such that they appeared exclusively on Vevo. I suspect that's the same thing happening here. Because part of the Vevo deal is a promise that Vevo gets exclusive rights to videos involving certain artists' works, it allows YouTube to simply ignore fair use claims from users on such content, and refuse to ever post them again.

Now, as McKay notes, this is (mostly) well within YouTube's rights. I remember, a few years back, seeing a discussion on some legal blogs about this question. The DMCA implies that if you file a legitimate counternotice following a DMCA takedown and if the copyright holder does not take further legal action, the service provider is obligated to put the work back up in no less than 10, but no more than 14 business days. But, to some extent, that seems questionable. After all, as a service provider, any site has the right to not allow certain content to be published if it doesn't want to. And yet, if read literally, some could make the argument that the DMCA obligates a service provider to put up content even if it doesn't want to. As McKay notes, in this manner, the only liability is to the person who filed the counternotice, and any such liability would likely be pretty limited.

Either way, there's no way to look at this that makes YouTube look good. Following so soon on our other story about YouTube taking down a video on a questionable "terms of service" violation and then refusing to repost the video, it's once again a situation where it seems like YouTube needs to do a much better job handling these situations. While we obviously don't know the details of the UMG contract, fair use rights cannot be signed away, especially by two third parties. It would be a shame if YouTube decided that it would arbitrarily give UMG the ability to deny someone's fair use rights in posting a video.

Permalink | Comments | Email This Story

Macklemore Explains Why Not Being On A Label Helped Him Succeed

Mike Masnick — Thu, 4 Apr 2013 13:10:54 PDT

Unless you've been totally under a pop-culture/music rock for the past few months, you've probably heard of Macklemore and his hit song (and video) Thrift Shop. Now at well over 200 million views, the song itself has been at the top of the charts and has sold over 4 million copies. In case you somehow have missed it, or in case you just want to watch it again, here's the video: The song itself was released last year, and built up a lot of buzz throughout the fall, but completely exploded at the beginning of this year. While I became aware of the song a while back, I didn't realize until recently that Macklemore is actually yet another story of a totally independent artist who found success not by signing with a label and having them throw a ton of money into promoting him, but by carving his own independent path (and using YouTube to connect with fans). In many ways, his story reminds me of Alex Day's.

A few weeks ago, Macklemore sat down with Chris Hardwick on the Nerdist podcast and it's great. Beyond some interesting discussions about sudden fame (and then doing laundry in the communal laundry room of your apartment building days after appearing on SNL), he does talk a little about being a successful musician without a label. Chris asks him about the no label part and mentions what a great story it is:

Chris: To see you and Ryan Lewis come out of Seattle just making stuff you like making, with no label, and oh you're at the top of the charts, and all these people are talking about the song... that's just a great story.

Macklemore: Yeah, I appreciate it. It is a very cool story. It's what you always hope for in terms of picking the independent path. It's cool to see that that's been a focal point. It's not just "Thrift Shop"; it's this kind of do-it-yourself attitude behind the music we've made -- that is also within the midst of this thrift shop song. That these two dudes chose to go independently, to turn down the labels. That the music industry is changing. That it's evolving. And to be at any sort of place where we're at the forefront of that, at the moment, is exciting.

Chris: It's so inspiring to so many young people who maybe -- and I think people are more and more used to the fact that they can just make stuff in their bedrooms and it can turn out to be huge. But every time it happens, it's that much more inspiring to a younger generation of people who go... 'there's no excuse any more to not go out and make stuff that you want.'

Macklemore: Absolutely. And that's what we watched people that came before us that have done it independently, whether it's Sub Pop, or whether it's... Mac Miller did it independently. And he had every major label hollering at him with huge seven figure offers and turned it down and still went number one on Billboard. There's examples of it that came before us, that had us say 'I think that it can work -- I'm not sure that it can work." But, at the end of the day, what's most important, and creative control is number one for Ryan and I. It's a no brainer.

Chris I'm sure you've been approached a million times at this point, but you still don't want the infrastructure of a label?

Macklemore: Yeah, there's no reason to do it. With the power of the internet and with the real personal relationship that you can have via social media with your fans... I mean everyone talks about MTV and the music industry, and how MTV doesn't play videos any more -- YouTube has obviously completely replaced that. It doesn't matter that MTV doesn't play videos. It matters that we have YouTube and that has been our greatest resource in terms of connecting, having our identity, creating a brand, showing the world who we are via YouTube. That has been our label. Labels will go in and spend a million dollar or hundreds of thousands of dollars and try to "brand" these artists and they have no idea how to do it. There's no authenticity. They're trying to follow a formula that's dead. And Ryan and I, out of anything, that we're good at making music, but we're great at branding. We're great at figuring out what our target audience is. How we're going to reach them and how we're going to do that in a way that's real and true to who we are as people. Because that's where the substance is. That's where the people actually feel the real connection.

And labels don't have that.

So you sign up for a label. There's not some magic button they're now going to push and it means that people are going to like who you are. Or that they're identify with your vision or your songs. It actually comes from sitting down, staring at a piece of paper for months or years on end, trying to figure out who you are as a person, and hoping that it comes through in the end. But a label's not going to do that for you.

Uh huh. Once again, it makes you wonder what people are thinking when they claim that YouTube is putting artists out of work.

The whole episode is worth listening to as Macklemore has a great perspective on all of this, and it's interesting to hear him discuss the oddity of his sudden increase in fame and how he's dealing with it, without letting it go to his head. But considering how often we've had similar discussions about artists who choose to go independent, I thought some would enjoy that particular snippet especially.

Permalink | Comments | Email This Story

Viacom Filing Attempts To Rewrite DMCA, Shift Burden Of Proof, Wipe Out Safe Harbors And Require Mandatory Filtering

Mike Masnick — Mon, 1 Apr 2013 05:52:22 PDT

It's been about a year since the 2nd Circuit appeals court sent the Viacom v. YouTube case back to the district court. As we noted at the time, the original district court ruling, which said YouTube was protected by the DMCA's safe harbors, was a good ruling, well reasoned and argued by the court. In contrast, the appeals court ruling dipped into very troubling waters. While it agreed with the district court that YouTube needed "specific" knowledge of infringing works, rather than "general" knowledge that some works were infringing, it also went into questionable territory by arguing that YouTube could be found guilty of "willful blindness," despite the DMCA statute not including any such concept and also being pretty clear that you need specific knowledge in the form of a DMCA-compliant notification.

On Friday, the latest set of (slightly redacted) filings in the case back at the district court were revealed. They were filed in the past few months, but sensitive info was finally redacted and the "public" copies have now been released. Google has, not surprisingly, basically asked the court to reiterate its original ruling, noting that even following the appeals court sending it back, the situation hasn't changed: YouTube obeyed the DMCA's notice-and-takedown procedures and is protected under the DMCA's 512(c) safe harbors (pdf). Google highlights how YouTube has followed notice-and-takedown procedures from early on, and even in the early days blocked some videos that it thought might be infringing. It also notes that Viacom itself pulled a bunch of videos from the lawsuit after it finally signed up to use ContentID and realized that it was beneficial to Viacom's own business. More importantly, as we've pointed out a bunch of times, many videos had to be removed from the case because Viacom had uploaded them itself and even had "confidential (and ever changing) instructions to its copyright-monitoring agent" concerning what to pull off of YouTube. Even worse, apparently, even today, Viacom hasn't fully figured out if all of the clips they're suing over were really infringing. It turns out that many of them are identical to the ones that Viacom itself uploaded as authorized copies (and there's evidence Viacom often uploaded the same clips multiple times itself on purpose).

The basic point: there's no way for Google to know what Viacom uploaded on purpose and what is unauthorized unless it receives direct notification about it. Just like the DMCA safe harbors require. Not only that, but they show that Viacom knew this as fact. First, Viacom tried to buy YouTube itself, and internal memos from Viacom execs noted that "user generated content appears to be what's driving" YouTube's success and even that "consumption of branded content on YT is low." They also specifically stated that YouTube "has many" non-infringing uses.

As for the specific issues raised by the appeals court, YouTube points out that for "willful blindness" to apply, Viacom needs to show that specific clips in this lawsuit were involved in cases where there is evidence of willful blindness by YouTube. That's because the lawsuit is just about those particular clips. If Viacom wants to go after a general willful blindness on the part of YouTube, that's way beyond what the law allows -- and the court is specific about this, noting that Viacom needs to show willful blindness to specific infringements concerning videos in the lawsuit.

But, of course, Viacom doesn't bother to show a single piece of evidence alleging willful blindness by YouTube in regards to any one of the clips in the lawsuit. Instead, in its opposition filing it once again tries to rewrite the law in its favor, trying to create a ridiculously broad general "willful blindness" standard that effectively wipes out the DMCA's 512(c) safe harbors. First, it relies almost entirely on an email sent by an ex-employee of YouTube, in which he claims there is a lot of infringement on the site, but does not name any specific videos. As Google points out, just having someone say there's infringing works on YouTube doesn't (a) show what files need to be removed or (b) even prove the works are actually infringing (see: Viacom uploading its own videos) or, most importantly (c) prove that YouTube failed to remove infringing videos when it learned they were infringing. Viacom doesn't even seem to try to show any of those things. Also, the fact that the email came from an ex-employee certainly doesn't prove that YouTube had knowledge of the specific infringements.

As the filing notes:

The type of generalized guesswork that Viacom engages in bears no resemblance to the showing of specific knowledge of clips-in-suit that the Second Circuit demanded.

In fact, Viacom's filing is really incredible. Having completely lost (at both district and appeals court levels) its ridiculous claim that "general knowledge" of some infringement somewhere on the site leads one to lose safe harbors, Viacom simply tries the same argument again, pretending that the "willful blindness" standard is basically a stand-in for "general knowledge." That's hogwash on many levels, and frankly, I'm surprised that Viacom's pricey lawyers would bother with that argument. The district court already rejected it and the appeals court was pretty clear that Viacom needed to show willful blindness on specific items, not generally.

It also tries to completely flip the burden of proof, arguing that as long as Viacom can show that infringing works were on the site, YouTube has to show that they "lacked such knowledge or awareness of Viacom's clips-in-suit." That's not how the law works. Viacom is actually arguing that the DMCA requires proving the negative. Furthermore, it argues that YouTube's failure to implement an anti-piracy filter that Viacom wanted is more proof of willful blindness. That's similarly ridiculous. The DMCA has been held, repeatedly, to not include a proactive duty to monitor. Failing to do so at the insistence of Viacom (even as YouTube was establishing its own filter anyway) is hardly proof of willful blindness to the infringement of specific clips (and given Viacom's "dizzying array" of authorized videos on the site, such a filter would hardly prove infringement). Incredibly, Viacom insists that it's YouTube trying to flip the burdens in the DMCA, but either Viacom's lawyers have totally misread... um... everything, or they're lying to the court.

They're correct that to get safe harbors the service provider needs to meet certain "burdens," but those are laid out in 512(c). It needs to be a service provider that does not have actual knowledge and when it gets the knowledge, it acts expeditiously to remove or disable access to the material. Those are pretty clearly laid out. Viacom is making things up pretending that the burden also includes the idea that if a copyright holder claims its works are there then the burden shifts to the service provider to prove the negative that it wasn't willfully blind to infringement. Viacom literally argues:

It is not Viacom's burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom's copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability.

Got that? Stuff on the site, plus "some other elements" and boom, no more safe harbors. That's crazy. That's clearly not the purpose of the safe harbors, because that would mean there are no DMCA safe harbors.

As YouTube noted in response:

Viacom does not even try to make the showing of clip-specific knowledge required by the Second Circuit’s ruling. It instead reverses course and claims that it is YouTube’s burden to affirmatively establish its lack of knowledge as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is wrong. It is contrary to the Second Circuit’s decision, all the case law, and the structure of the DMCA itself. Viacom also ignores the record. YouTube has identified more than sufficient evidence of its lack of knowledge of infringement— including the very fact that the voluminous record in this case contains no evidence of such knowledge. Viacom’s inability to offer any evidence from which a jury could find that YouTube had actual or red-flag knowledge of even a single clip-in-suit requires that summary judgment be entered in YouTube’s favor.

Viacom goes on to argue that even though the DMCA is explicit (in 512(m)) that there is no duty to monitor, there really is a duty to monitor! How do they tap dance into that position? By arguing that while there's officially no duty to monitor, if you fail to monitor because it might show you infringing works, then you are guilty of willful blindness. Got that? There's no duty to monitor, but failing to monitor shows that you were making yourself willfully blind. If that's true, then 512(m) makes no sense, which is what Viacom (and other copyright maximalists) have always wanted (in fact, we noted just this three years ago about this case). They want a requirement for others to be their personal copyright cops and 512m gets in the way of that, so Viacom is trying to rewrite it here. In doing this, it relies heavily on the ruling in the Tiffany v. Ebay case -- but that's a very different story, involving trademark (for which the safe harbors don't apply), not copyright.

Viacom also regularly cites shows like South Park, the Daily Show and others despite the fact that Viacom explicitly (in its "rules" sent to BayTSP, its DMCA monitor) had many, if not most, of those clips left on the site as authorized.

There are a few other points up for debate -- concerning things like whether or not YouTube got financial benefits directly from infringement, whether or not reformatting YouTube videos for smartphones removes safe harbors and a few small other points that we won't get into here. Those are unlikely (hopefully) to be the center stage issue, and this post is long enough as is. Frankly, I remain surprised that Viacom's arguments seem so obviously weak. Ever since the case began, I've been surprised at how weak Viacom's arguments are. From the beginning, I expected them to have a stronger lawsuit. Having read the latest filings, it really feels like Viacom went all in early, and rather than admit it never had the goods, it's just going to try crazier and crazier arguments and hope that a court gets confused. Seems like a good way to completely throw away money.

Anyway, if you feel like digging into the three filings (YouTube's motion for summary judgment, Viacom's opposition and YouTube's reply), they're all embedded below for your reading pleasure.

Permalink | Comments | Email This Story

Musician Alex Day Explains How He Beat Justin Timberlake In The Charts Basically Just Via YouTube

Mike Masnick — Mon, 25 Mar 2013 11:53:55 PDT

Last summer, we wrote about UK musician Alex Day, creator of a number of very catchy tunes (seriously take a listen), and how he sold half a million songs by breaking all the "rules" that those from the old recording industry insist are true. You can read that article for the details, but the short version is that he has no label, relies pretty much entirely on YouTube, he encourages fans to use his his music as much as possible and he's regularly releasing new songs. Recently, he released his latest album in the UK the same day that music industry superstar Justin Timberlake did, and (at least on iTunes), Day's album charted better than Timberlake's, despite Timberlake basically having the entire force of the legacy music industry behind him. At that link above, James Altucher has another great interview with Day, in which he (once again) highlights the basics of how he built his success -- hitting on a bunch of points that we've regularly talked about here, and which industry insiders insist could never really work for anyone. First up, connect with fans:

Right from my first 30 subscribers, I began talking to the audience that was there and making videos directly for them and replying to comments, but I never saw it as a ‘fan base’ – I mainly just figured we were all bored kids.

Another interesting point: he doesn't perform shows. This is a very interesting one, because we regularly get attacked in the comments by people who insist that we've claimed that the answer for musicians today is just to tour. Of course, we've never actually said that. There's a conflation there between where many artists are making money today and other ways in which artists can make money. In many ways, Day reminds me of Pomplamoose, who also used YouTube to build up a huge following and to make a living (both mixed cover songs with originals early on). You don't need to perform to make money, and Day has proven that.

Performing wasn't an avenue for me – the only gigs I've done are one-off launch events (to launch my album, for example) or gigs with friends (as I mentioned). I really don't feel the need to gig when I can reach my audience online and hit everyone at once, all over the world, and not exclude anybody, which a tour doesn't do.

And, yes, it sounds like he's doing quite well. Between YouTube and people buying the music (even though it's available for free on YouTube), he's doing quite well.

Typically I make around £3500 a month from YouTube (I'm on a network so they can sell the ad space higher) and at least £10,000 a month from music and merch sales. I've also done other projects – I co-created a card game with my cousin which we sell online, I have a business called Lifescouts I launched this year – which add a bit of extra cash to the pot also.

Basically: connect with fans and give them a reason to buy, and they will, even if the music is available for free. So much for the idea that no one will ever buy if it's free.

Also, while some insist that we hate record labels and think there's no role for them at all any more, nothing could be further from the truth. We've noted, repeatedly, that there is still a huge role for record labels, helping and enabling artists to do more for the artists that want that. What's different today is that artists have a choice. They can use a label, if they think that helps them, or they can do stuff themselves. And having that choice also gives the artist a lot more power and some more leverage. So it's interesting to see Day talk about his thoughts on labels. He's very open minded, pointing out that he's not against signing with a label, but they'd have to actually be able to do something for him and they've yet to show that they can do that without wanting to control absolutely everything.

Labels have never known what the hell to do with me. I always went in with an open mind – I don't like the idea that being proudly unsigned/independent instantly means I'm white and they're black and we have to duel to the death or whatever. There are a lot of things I do on my own because I have to, so I've got good at them, but it would definitely be easier with outside help! So I was willing to hear what they could offer and how we could work together and I still would be, but I don't think labels are ready to be that humble. They want to control everything. I like being able to decide my own songs and film my own music videos.

I've had several meetings with Island Records in the UK, the last of which ended with the guy saying he doesn't think I'm ready to be on a label yet because "we only sign artists we can sell at least a million copies of in the next three months" – but if he's waiting for me to get to that point without him, why do I need the label ever? I've also met with Warner, Sony, EMI – they were all the same, none of them expected to justify themselves and at best they were just trying to "figure out my secret" and at worst they were completely uninformed and lazy...

He talks about how a one-off deal with Universal solely for distribution of his CD helped get that CD into music shops, which was nice for sales, and those kinds of relationships are interesting to him. Ones where they control everything and don't add any actual value... are not. He even points to this hilarious video about his experience meeting with a major label. Seriously, watch this video. And, of course for those YouTube-haters out there, Day notes that YouTube has basically been everything for him:

It's just YouTube. I have Twitter and Facebook only because I sort of feel I have to, because I need to reach people in those places.... For the personal connection, it's all YouTube. I love it there. It's such a creative outlet. I've been making videos seven years and never got bored of it — one or two videos a week regularly all that time.

It genuinely saddens me when YouTube isn't lumped in as one of the essential social metrics with Twitter, Facebook and Tumblr (I do have a Tumblr too but like the others I don't really know how to use it). I understand YouTube and it's changed my whole life.

Wait, weren't we just hearing some old school musician insisting that YouTube had put 12,000 musicians out of work? Maybe it's just 11,999 then. Or, maybe it's the opposite. Maybe it's created an opportunity for lots and lots of musicians. But the key, as Day notes, is that you have to actually get YouTube. Miss that step and (shockingly), it might not work for you.

Either way, it's great to see Alex continue doing what he does best: making great music, connecting with fans and building a career.

Permalink | Comments | Email This Story

Hulu Continues To Wobble Along That Fine Line Between Success And Failure As CEO Bails

Timothy Geigner — Fri, 11 Jan 2013 16:02:14 PST

If one were to make a short list of the top great ideas that were implimented horribly, unbelievably wrong, Hulu would have to be somewhere between The View and the United Nations (I'll let you decide what goes where, exactly). Hulu was the once promising entertainment venture that has ugly-morphed its way into a mere excuse for entertainment studios to claim they offer people what they want. All the while there's been some discussion about whether or not the studios that own Hulu are purposefully trying to tank it to keep people from cutting the cable cord. And throughout all of this, Hulu has never really caught on with the same kind of fevered pitch as Netflix or even Amazon for streaming service customers.

Reader Vidiot writes in about a Business Insider piece detailing all the reasons why Hulu may have one foot in the grave and the other foot hovering just over it. Amongst the less-than-awesome facts on Hulu's list are items such as a new request for $200 Million from investors, reported losses of $30 Million per quarter, and that Hulu is trying to compete against Netflix while spending one-tenth the money on original content and one-ninth the paid subscriber base. The article announces that because of all that, it's time to conclude that Hulu is a failure, but don't blame corporate leadership.

The fact is (CEO Jason) Kilar had an almost impossible job from the very beginning. Hulu doesn't own the content it distributes, so it only gets to keep a small portion of its revenues. Hulu is, in fact, owned by the companies that own said content. And those owners have little incentive to create healthy margins for Hulu at the expense of their own. The fact is, Kilar has, in a couple years, built a Web brand that you have heard of. Yes, this was done on the back of free TV and a big marketing budget. But it's still decently impressive.

I'm not sure how we went from failure to impressive in less than a hundred words (which is impressive, by the by), but I am sympathetic to Hulu's raw deal from the studios that own it -- something Mike has been pointing out for nearly four years. That said, I don't think Hulu is a failure that is so far failed that it can't be brought back from fail-dom. After all, I've heard that Justin Timberlake is taking some time away from bringing sexy back to work on bringing Myspace back and if that mess of a social network can rise from the internet grave, Hulu can too.

But whoever is going to try to bring Hulu back from the prep-coffin, it appears it isn't going to be the afore mentioned Jason Kilar, because he's decided to bail. By all accounts, Kilar tried, really tried to make this thing work, but despite some successes it's not wrong to say that Hulu hasn't turned out to be what some folks thought it would. Given the raw deal that Hulu has gotten, the conflicts of interest heading up the company, I don't blame Kilar one bit for leaving. Hulu needs to innovate despite its issues, or else we can get the funeral march going.

Permalink | Comments | Email This Story

Lionsgate Censors Remix Video That The Copyright Office Itself Used As An Example Of Fair Use

Jonathan McIntosh — Thu, 10 Jan 2013 05:18:55 PST

It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.

Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, Entertainment Weekly and discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.

This past summer, together with the Electronic Frontier Foundation, I even screened the remix for the US Copyright Office at the 2012 hearings on exemptions to the DMCA. Afterward my Buffy vs Edward remix was mentioned by name in the official recommendations by the US Copyright Office (pdf) on exemptions to the DMCA as an example of a transformative noncommercial video work.

"Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth."

-Recommendation of the Register of Copyrights, October 2012 (Page 133)

Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube's system and filed a DMCA takedown and had my remix deleted for "copyright infringement." Below is a brief chronicle of my struggle to get Buffy vs Edward back on YouTube where it belongs.

On October 9th 2012 I received a message from YouTube stating that Buffy vs Edward had "matched third party content" owned or licensed by Lionsgate and "ads may appear next to it." Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.

I always turn all ads off on my remix videos and never profit off them. But sure enough when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over top of my gender critique of pop culture vampires. Incidentally this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones because they are not ”monetized platforms“.

I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.

Less then 24 hours later however I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive popup ads.

Concerned at what appeared to be a blatant disregard for fair use provisions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1000 word legal argument citing case law and explaining how Buffy vs Edward was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount used and market effect. YouTube's built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)

On November 26th 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!

Or so I thought.

That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had "matched third party content" owned or licensed by Lionsgate and that ads may appear on my video. Wait what? Deja-vu. Hadn't I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for "visual content" owned by Lionsgate and the claim I had just fought and finally won had been for "audiovisual" content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.

It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media.   Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.

Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.

So again I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which again lay out very clearly all the fair use arguments. And again, I waited for a response.

On December 18th I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.

I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.

In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but still insulting because my video was not infringing in the first place.

Once I was allowed back into my account I found that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.

I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and had issued the DMCA takedown. What he found out from that correspondence was worrying.

Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on Youtube, confirmed in an email to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response email to New Media Rights on December 20, 2012.

“The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.”

No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via email, despite fair use being raised multiple times.   Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational and/or transformative works only if they can retain effective ownership and directly profit off them.

It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?

There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, the case of the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.

Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of 34,000 times per month.

Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate, and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.

This is what a broken copyright enforcement system looks like.

One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit two lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.

PS: Until we can get the takedown reversed, you can still watch the HTML5 popup video version of Buffy vs Edward here.

Reposted with permission from RebelliousPixels.com

Permalink | Comments | Email This Story

Thank Joe Lieberman For YouTube Accidentally Censoring Key Syrian Watchdog's YouTube Channel

Mike Masnick — Tue, 8 Jan 2013 09:56:39 PST

Senator Joe Lieberman may finally be out of the Senate, but his "legacy" lives on. Over the years, we've noted that he's regularly sought to censor technology that terrorists use, on the ridiculous theory that censorship somehow makes the terrorists disappear. One of his campaigns, way back in 2008, was to force YouTube to magically censor videos from terrorists. After putting a lot of public pressure on YouTube, the company caved. And... as a result of that, it recently shut down the video channel of an important Syrian watchdog organization which had been posting video evidence of atrocities occurring in that country. YouTube has apologized and reinstated the channel, but this is what happens when you encourage censorship. It is impossible not to have it lead to censoring important speech.

YouTube sent the Observatory an email on Sunday that said its channels "syrianhro" and "almrsd" had "violated the policy of the site by publishing shocking and offensive videos," the Britain-based watchdog said.

The Observatory, which disseminates graphic videos on YouTube of atrocities from the bloody civil war the UN says has killed more than 60,000 people, condemned the closure.

"This is the second time in two months that the site administration has closed the Syrian Observatory for Human Rights channel," it said in a statement, in reference specifically to almrsd.

Of course, if we're to take Lieberman's theory to its logical conclusion, so long as no one can see the atrocities in Syria, we can all pretend they haven't happened, right?

Permalink | Comments | Email This Story

No, The Major Labels Didn't Fake 2 Billion YouTube Views

Mike Masnick — Wed, 2 Jan 2013 05:24:39 PST

The record labels have a long history of knowing how to manipulate key numbers to their advantage. Look how labels have manipulated the various charts over the years and you'll find that it's a big part of how they do business. So it probably struck little by surprise to hear that the labels were now being accused of massively manipulating YouTube view counts to make certain songs look a hell of a lot more popular than they really are. The only problem? It's not actually true.

The DailyDot -- who normally does a fantastic job -- broke the story that got most of the attention, reporting:

Google slashed the cumulative view counts on YouTube channels belonging to Universal Music Group, Sony/BMG, and RCA Records by more than 2 billion views Tuesday, a drastic winter cleanup that may be aimed at shutting down black hat view count-building techniques employed by a community of rogue view count manipulators on the video-sharing site.

Universal's channel is the one that took the biggest hit. According to figures compiled by the YouTube statistics analysts at SocialBlade, the record company's YouTube channel lost more than 1 billion views from its preexisting tally of 7 billion views Tuesday.

Lots of other publications then picked up on the Daily Dot version and suddenly the story was everywhere -- in particular claiming that the labels were being punished for faked video views. Only problem? That's not really true. The report suggests that YouTube has begun a big campaign against view inflation by YouTube users across the board. That part is true. But the untrue part is that the major labels were faking so many views. Instead, it turns out that most of the issue was just that the labels had moved their videos from YouTube to Vevo -- the online video site that the labels had started a few years ago (built on top of YouTube technology). As Billboard notes, the "de-spamming" effort did delete about 1.5 million views from Sony and Universal Music videos -- so there may be some funny business, but that's tiny compared to the 2 billion views that disappeared. But the reason those went away was much more mundane:

The answer comes in the second way that YouTube changed its view count. The company recently decided to remove view counts for videos that are no longer live on the channel, or so-called "dead videos." For Universal and Sony, that meant thousands of music videos that over the past three years slowly have migrated to the VEVO channel, which is jointly owned by the two companies. A senior label executive confirmed the migration....

That meant high-profile videos that once lived separately on the Universal and Sony YouTube channels have been relocated to Vevo. As a result, the views that those videos received during their time on the dedicated label channels were taken away in YouTube's latest "clean up" effort.

In other words, those views happened; they weren't "faked" or even double counted when they went on to Vevo. But because the videos are no longer on the channel, YouTube considers them "dead videos." They still live on in YouTube, just under a different channel.

Considering how many people have been sending this story over, I know lots of people would like to believe Sony Music and Universal Music faked 2 billion views and were now being punished for it, but it's just not the case.

Permalink | Comments | Email This Story

Italian Prosecutor Still Wants To Put Google Execs In Jail Because Of A Video Uploaded By Some Kids

Mike Masnick — Thu, 13 Dec 2012 07:16:00 PST

Back in 2008 we were amazed that prosecutors in Italy were seeking to put four Google execs in jail, claiming that they were liable for a video that was uploaded to Google video, showing some kids mocking another child who is autistic. Google even took down the video after being notified of it -- and the video itself was evidence used to go after the kids for their actions. And yet, for reasons that still make no sense, prosecutors deemed that four Google execs should be found criminally liable for the fact that some kids uploaded that video. The execs in question did not taunt the child. They did not make the video. They did not upload the video. They were unaware of the video's existence. It is solely because they work at Google, and Google was a tool used by these kids to incriminate themselves, that prosecutors went after them.

Making matters even more ridiculous, three of the four execs were then found guilty and given "suspended" 6 month jail sentences (meaning they didn't actually have to go to jail). A reading of the ruling by an Italian legal expert noted that the judge appeared to confuse different parts of the law to come to that conclusion. Part of the issue was that because some users "complained" in the Google Video comments, prosecutors claim that Google should have known and taken down the video (because, they apparently think that people at Google read every single comment).

Google appealed, of course, and Italian prosecutors are still arguing that the execs belong in jail for reasons that still escape me. At best, all this is doing is telling tech execs to not do business in Italy, because the country apparently has completely wacky secondary liability laws that mean you might be criminally liable (i.e., face jailtime) if anyone uses your service to do something mean to another person. The easiest way to avoid that kind of liability: don't do business in Italy at all.

Permalink | Comments | Email This Story

A Couple Videos About Our Crazy Patent System

Mike Masnick — Wed, 12 Dec 2012 20:01:00 PST

We're hearing more and more talk about how broken the patent system is, and recently came across a pair of videos we figured some of you might enjoy. The first is a comedic riff on Apple's recent page turn design patent, leading Ron Charles to post an amusing video of how Apple might explain its patenting of "letters": There are some good lines in there. "Everything we've done, is designed to be very capable, but also familiar. So our goal, was to take all the amazing things that people like to do... and own them."

On a slightly more serious note, economist Alex Tabarrok, has put together a video arguing for the end of software patents: It's not a bad video, though I think the analysis is a bit overly simplistic, in that it kicks off with the idea that pharma patents make sense. The more you dig into the details of pharma patents, the more you realize that's not true either. However, even granting that, the argument he makes is the commonly seen economics argument that, at the very least, things like pharma and software display such different economic characteristics that it's silly to use the same patent system for both. Specifically, the sunk costs of innovation for software tend to be relatively low, so the protection a patent grants might not be useful. It also notes how patents can impede innovation. One thing I'm happy it includes is a note about how you get less innovation when you don't have competitors pushing you to keep innovating. That's a point that often gets missed in these debates.

Either way, I figured folks might enjoy both of these videos.

Permalink | Comments | Email This Story

Hall & Oates Convince Super PAC Named After Them To Shut Down

Mike Masnick — Thu, 30 Aug 2012 13:34:39 PDT

There's been plenty of talk this election season about the rise of PACs and SuperPACs -- and the ease of creating them. Of course, that can lead to some bizarre situations. Take, for example the creation of the Hall and Oates Fans for America SuperPAC, which was recently approved by the Federal Election Commission (found via On the Media). The thinking behind it might not surprise you very much:

“It was really just kind of a joke a couple of us came up with drunk one night. I wish I could say there was more to it, but that’s about it,” said [William] Hansmann.

Hansmann stated that the goal of the SuperPAC was "to create parody videos on YouTube." Seems like as good a use of a SuperPAC as any. As for why they chose famed rock duo Hall & Oates? Well, that was easy:

“When we hit on Hall & Oates, we were just like, who doesn’t love Hall & Oates?” Mr. Hansmann explained.

That may be true... but while everyone may love Hall & Oates... it turns out that Hall & Oates don't really love being associated with a SuperPAC. They had their people "get in touch" with Hansmann and convince him to shut down the SuperPAC, which had raised all of $0. According to Hall & Oates' manager, the duo was wary of any political connection whatsoever, even one involving parody videos:

"Daryl Hall and John Oates recognize that the personal view points of their fans cross all political spectrums and are honored to be supported by their fans everywhere regardless of political affiliation... The PAC's founders recognize that the use of the ‘Hall’ and ‘Oates’ names for the purpose of raising funds is not an appropriate fan activity no matter what the goal of the fund raising activities might be.”

Thankfully, it appears that the dynamic duo and their manager resolved this in a friendly manner, rather than the all-too-typical reaction of some to immediately rush to legal nastygramming.

"Daryl Hall and John Oates are pleased that the amicable dialog with the founders of the Super Pac have brought an expedient resolution to this matter and achieved a result both sides are pleased with."

Of course, what's unclear is if the SuperPAC has just been shut down, or is being renamed. Any suggestions on what else it might be called?

Permalink | Comments | Email This Story

Alex Day Sells Half A Million Songs By Breaking All The 'Rules'

Tim Cushing — Fri, 27 Jul 2012 19:39:00 PDT

Well, what do we have here? Another artist operating outside the constraints of the recording industry and yet, against all odds, making money? Probably too good to be true. He's built a huge following on known pirate site YouTube and his first two royalty checks totaled over $200,000, but the question remains: how can Alex Day make money with such a wrong-headed approach?

The Tunecore blog gets to the bottom of this Alex Day sensation. In a day and age where no one can sell music, Day is doing exactly that. Not only is he selling music, but he's doing many things completely wrong, if conventional thinking is anything to go by. Just how successful is Alex Day?

Alex Day, a 23 year-old musician from Essex, England is focused on releasing music that puts listeners in a good mood. And it seems to be working. He has over 500,000 YouTube subscribers, over 500,000 songs sold, almost 100 million youtube views, and was the subject of two recent Forbes articles.

How does he do it? By breaking every rule in the "How Things Are Done Around Here" book.

First rule broken?

Staggered/Windowed Releases Are Good

Day has released three (3)(!!!) singles simultaneously, ruthlessly "cannibalizing" his own market. How's that working out for him?

[I]t seems to have worked so far. The songs are well on their way to selling 150,000 copies. Just ONE of the videos has already done more than 300,000 views, and the three have been streamed more than 100,000 times on Bandcamp.

You'll Never Be Famous Without A Major Label's Help

It’s basically perseverance. [I]’ve been doing it six years, and only in the last year have people really started paying attention to my music. I make sure I upload at least one video a week, keep my stuff consistent and entertaining, and don’t talk about music all the time because people would get bored.

No One Takes YouTube "Artists" Seriously

Well I have Twitter and Facebook pages like everyone else in the world, but really it is just YouTube. I don’t have a label, a manager, a press team, a radio plugger, an agent, a publicist, not even a music producer. I make my own music, my own music videos, and YouTube is how I get the word out on those things.

Control Every Use Of Your IP

I noticed on your site that you’re very vocal about encouraging your fans to use your music in their videos, projects, talents shows, and whatever else they’d like. What’s your philosophy behind this?

Is that not the norm? I thought everyone would want to do that. I guess it’s just as I’ve said, I want as many people as possible to hear and enjoy my music, and if people are using it in their own projects, that’s a good way of sharing my songs with people. As long as you’re not taking the credit for the song and you’re doing something new with it (not just re-uploading the song with the artwork to YouTube when I already have a video there of my own to showcase it), you can help yourself.

Full Albums Are The Only True Way To Create/Enjoy Music

Stop recording albums. I understand that an album can be a great form of art in its own right when all the songs are designed for it and they all weave into each other and they have a concept. Great—but most don’t, most artists don’t write like that, and with the cherry-picking available on iTunes, there’s no point bundling them together. Just focus on making one great song. Keep writing and recording until you have one great song. Then go from there. You only need one great song to make it.

Real Artists Don't Need To Connect With Fans Or Make Music People Enjoy

I make music people enjoy and they buy it... That’s my big trick. If I was only doing it for fame, I could sign with a label. If I was only doing it for money, I could churn out rubbish every two weeks. But I take my time and put out quality stuff I’m proud of, for the love of making great music and sharing it with an audience—the more people that hear it, the better. I want to make things that people can love.

With this many rules broken, it appears that Alex Day is yet another solitary example of business models that won't work for anyone else.

Permalink | Comments | Email This Story

Rocker Creates App To Better The Bootleg Video Experience

Timothy Geigner — Mon, 23 Jul 2012 16:27:10 PDT

Techdirt has been writing about artists and bands enabling concert-goers' use of smart phone video since its article URLs still ended in numbers. But this has always been something of a gray area, where for every band that likes amateur films promoting them, there's another band (or copyright holder) who hates it.

Perhaps that's about to change. Business Week has a fascinating story of a new smart phone application being created by Joe Sumner, bassist for the rock band Fiction Plane, to sync multiple crowdsourced movies into a single experience. The idea came to him when his band was touring Lithuania and he noticed that there was a ton of amateur video of the previous night's concert up on YouTube. A ton as in 450 or so videos. And, rather than freak out about people being able to see the band for free on the video site, he created a company, Vylcone, to design an application that would empower and enable those same fans by creating something to link all that footage together and make something awesome.

"Its free program debuted in Apple’s (AAPL) App Store on July 18 and lets two or more people in close proximity shoot video with their iPhones, upload the clips, and view a movie automatically spliced together from different angles. To recognize that multiple users are filming the same scene, Vyclone tags each video with the location where it was shot using GPS. To synchronize the clips, it lines them up by the date and time they were shot, regardless of when they were uploaded. A simple-to-use video editor lets users play director, toggling from one angle to the next with the tap of a finger."

If you're feeling that tingling sensation in your naughty bits, don't worry, that's normal. As music moves through the digital age and bands recognize that the concert experience is where they need to really be making significant money, they and the music labels that will now want a piece of that action had better get on board concepts like Sumner's. Commenters often ask why people would continue to pay the rising costs of concert tickets; this is why.

Concerts have always had the draw of the social experience, but now you're talking about deepening the social aspect of a concert by encouraging fans to contribute to a crowdsourced concert movie. Something they will feel a part of. Something that will create a connection between the concert goer, the band, and other concert goers. And the app is (GASP!) free!

And it does look as though people in the entertainment business are paying attention:

"The startup is based in Los Angeles and London, and has 13 employees. Lassman is chief executive; Sumner, chief creative officer. They’ve raised $2.7 million from [Guy] Oseary and [Ashton] Kutcher’s fund A-Grade, along with movie studio DreamWorks, concert promoter Live Nation (LYV), and VC firm Thrive Capital."

Technology that helps artists connect with fans and gives fans a reason to buy (concert tickets, merch, etc.). Concerts may have just gotten more interesting.

Permalink | Comments | Email This Story

Brazilian Performance Rights Group Claims Collecting From Bloggers Was Simply An 'Operational Error' After Google Pushes Back

Tim Cushing — Tue, 13 Mar 2012 06:13:22 PDT

Last week, Brazil's citizens were in an uproar about the national performance rights organization (ECAD) attempting to charge a non-profit blog over $200 a month for embedding Youtube and Vimeo videos, and implicitly threatening to similarly bill other blogs. ECAD claimed that not only was this allowed by Brazil's currently-standing laws but that, despite collecting hundreds of thousands of dollars from Youtube itself every year, this new set of fees would not be a double-dip.

How quickly things change, especially for entities who find themselves staring down an angry internet. At first, ECAD seemed disturbingly untroubled by the uproar, including the memeification of its intention to stretch the definition of "public performance" to include all audible sound. But it suddenly changed its prohibitively expensive tune when hundreds of thousands of dollars were at stake.

None other than Google Brazil itself issued a blog post stating that ECAD's existing agreement with Youtube did not allow the agency to collect fees from bloggers, pointing out the obvious to ECAD's wilfully obtuse representatives:

These sites don't host or transmit any content when they associate a YouTube video to their site, and as such, the fact of embedding videos from YouTube can't be treated as a ‘retransmission'. As these sites aren't performing any music, ECAD can't, within the law, collect any payment from these.

Having been smacked down by its main benefactor, ECAD issued a statement of its own, claiming the whole thing was just an "error" and that it had no intention of setting up tollbooths on every website with embedded video:

1- Ecad has never had the intention to curtail the freedom on the internet, known to be a space devoted to information, dissemination of music and other creative works, and propagation of ideas. The institution also lacks a copyright billing strategy geared to embedded videos. Royalties collections for webcasting have been under re-evaluation since February 29th, and the case reported in recent days took place before then. Nevertheless, it resulted from an operational error of interpretation, which represents an isolated fact in this segment. (...)

2- Two years ago, Ecad and Google signed a letter of intent that guides the relationship between both organizations. The document details thatEcad can collect copyright fees for music coming from embedded videos, as long as it gives advance notice to Google/YouTube. As Ecad did not send such a notification, it becomes clear that this is not its goal. If it were the case, it would have sent the notification the letter of intent requires. (...)

Note that ECAD has left itself a bit of an opening for pursuing these fees in the future. Supposedly it can still go after blogs but only if it informs Google/Youtube of its intention to do so. It seems the only error it feels it made was getting caught. Everything else was simply a clerical screw-up and if all ducks had been properly ordered, it would have been free to bill websites for linking to Youtube.

As it stands now, ECAD has backed completely away from this plan. But, once the furor dies down and recedes into the past, I wouldn't be surprised to see this sort of tactic deployed again, if not by ECAD, than certainly by another "aspirational" performance rights organization.

(Hat tip to Techdirt's own Glyn Moody and his amazing Twitter feed. He's asked you all very nicely to follow him and this post is an example of why you should. So, follow this link to do exactly that..)

Permalink | Comments | Email This Story

UPDATE: Brazilian Performance Rights Agency Demands Blogger Pay $204 A Month To Embed Videos

Tim Cushing — Thu, 8 Mar 2012 06:19:23 PST

Well, you can never say that performance rights organizations are unwilling to explore every option when attempting to snag a bit more income, ostensibly for their roster artists. American PROs (ASCAP, BMI, etc.) have attempted to collect from Girl Scouts, every cell phone owner with a ringtone and argued that a single person listening to their own music via the cloud is a "public performance." British PROs (PRS, mainly) have levied fees against pretty much any small business that has the audacity to play radios at an audible volume, as well as succeeding in collecting fees for "public performances" from hotels/motels who provide in-room radios for their guests. SABAM, Belgium's PRO arm, has managed to out-thug the rest of the world's PROs, demanding fees from truck drivers for listening to the radio in their cabs ("workplace") as well as collecting for bands that don't even exist.

There's a lot of competition out there in the dog-eat-dog world of performance rights double and triple-dipping, but it appears that Brazil's PRO, ECAD (Central Office of Collection and Distribution) is ready to play in the big leagues. Its strategy? Collect royalties from bloggers who embed videos. (As you may recall, ASCAP tried this a few years back to no avail, but Brazil's relationship with copyright could safely be described as "incomprehensibly inconsistent.")

~~(The following quotes come from a translated page, so they have been copied verbatim.)~~ [UPDATE: Eduardo, the author of the original post, has sent over a better translation of the quotations.)

The saga of unusual collections of the Central Office of Collection and Distribution (ECAD) has added another chapter last week. The boys from the blog Caligraffiti received last Tuesday in an email warning that the collecting society would have to pay royalties for videos from YouTube and Vimeo that appeared on the site.

The saga of unusual collections from the Central Office of Collection and Distribution (ECAD) gained another chapter last week. The boys from the blog Caligraffiti received last Tuesday an email from the collecting society warning that they would have to pay royalties for videos from YouTube and Vimeo embedded on the site.

This is surprising. ECAD already collects performance royalties from Youtube Brasil for its artists. In fact, it collects quite a bit from Youtube.

YouTube Brasil will have to pay 2.5% of its gross revenue per exhibition of songs protected by Ecad (Bureau of Revenue Distribution) in the country. If the amount of the stipulated percentage does not reach BRL 258,000 (US $146,250) in a year, the site must pay the value as "minimum annual fee".

Not only does Youtube Brasil pay a minimum mandatory fee yearly but ECAD has also hit the site with a BRL 645,000 (US $366,000) "subscription fee." The PRO collected roughly BRL 510,000 (US $289,000) in 2011. With Youtube already on the hook for the performance royalties, how does ECAD arrive at the conclusion that embedded video (just a link back to Youtube for all intents and purposes) should subject bloggers to performance royalty payments?

Well, according to ECAD, Youtube is the "transmitter" and of course, has to pay. But blogs embedding videos are "relays" and are also subject to these fees. Basically, ECAD has found a loophole in the existing law and is looking to exploit it. ECAD's spokesman:

[UPDATE: Translation via Eduardo, along with this splendid note -- "This second one has a very bad wording in portuguese as well, written by lawyers in their own language."]:

The right of public performance in digital mode is through the concept of transmission exists in law and in this art. 5 of section II of Law 9.610/98, which issue is the transmission or dissemination of sounds or sounds and images through of radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

The rights of public performance in digital media happen through the concept of transmission found in the article 5, section II of the law 9.610/98, in wich transmission or emission are the diffusion of sounds or images through radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

ECAD also argues that the "transmitter" and the "relay" are completely different forms of use and as such, do not represent "double recovery." This is, roughly translated, complete horseshit. But it gets even worse. Bloggers are being charged a flat-rate based on a designation that ECAD itself decides. The cheapest option, most likely, is to be declared a "non-profit." But even that designation saddles the blog with crippling fees.

To blog [as] a nonprofit, the amount charged by Ecad is nothing lightweight: R $ 352.59 (US $204) monthly.

Caligraffiti is a niche blog dedicated to design and technology, with a hit count of 1,000-1,500 hits per day and is not profitable. Every contributor does something other than blogging for income. Despite this, ECAD has designated the blog as a "webcasting or broadcasting program originating from the internet," a category that is sure to increase the amount levied against it.

In response to this collection attempt, Caligraffiti was briefly taken offline. After some legal consultation, the bloggers decided to re-open and fight ECAD head on, stating that this is clearly an attack on the internet itself, which was built on open sharing and dissemination of information.

ECAD is also sticking to its guns, stating that although it has no collection arm "dedicated" to collecting from bloggers, anyone who "publicly performs music" (read: "embeds video") on their site is subject to these fees. Of course, ECAD isn't doubling up on royalties just to be greedy. Its focus is on "the awareness and enlightenment on the need for payment copyright," without which its covered artists would be "disrespected" by callous bloggers and their embedding code.

Eduardo has also confirmed that ECAD has gone after weddings with DJs for performance royalties (as Ninja pointed out in the comments) and pointed out that the BRL $359 amounts to roughly half a month's wages at minimum wage.

Permalink | Comments | Email This Story

Something's Not Right: German User Has To Use Chinese Proxy To See New Music Video

Mike Masnick — Fri, 2 Mar 2012 18:49:21 PST

We've been writing about German music collection society GEMA's bizarre fight against YouTube for a few years now, in which all major music videos are blocked from YouTube in Germany because GEMA is suing YouTube and refuses to even discuss a potential license until the lawsuit is over. As we noted recently, this is even frustrating the labels who feel that GEMA is costing them serious money in not just doing a deal to make videos available. While researching something else on Twitter, I came across this telling tweet, from an individual in Germany talking about how they had to use a Chinese web proxy just to watch a new Sting video, and properly notes just how screwed up the world is when people in Germany are relying on Chinese web proxies just to watch music videos. I'm still trying to figure out what good this does anyone... other than GEMA.

Permalink | Comments | Email This Story

The NFL Issues Takedown For Chrysler Super Bowl Commercial

Mike Masnick — Mon, 6 Feb 2012 13:21:26 PST

Ah, the bogus takedown. The latest is that apparently the NFL somehow and for some reason took down Chrysler's Clint Eastwood Super Bowl commercial from YouTube. Pretty much every advertiser put up their commercials on YouTube, and it's unclear why or how the NFL might claim any sort of copyright on any of those ads. But, for some time that's exactly what happened, making Chrysler's own website promoting the ad look pretty silly: Considering how much Chrysler had to pay for that ad, you have to wonder if they now feel that the NFL owes them something for making it impossible for people to watch for a while...

Permalink | Comments | Email This Story

The Insanity Of Copyright Law: When Even Professionals Have No Idea They're Breaking The Law

Mike Masnick — Wed, 4 Jan 2012 05:42:00 PST

My cousin works (year round) for a summer camp. Her husband (who, technically, is also my cousin, but not by blood), works in film & TV production, doing all sorts of work in and around the entertainment industry. He's worked on various movies and TV shows. To help his wife out, he helped set up a website for the camp, and posted a slide show video the camp put together of campers, which he uploaded to YouTube. The video... was set to the music of a very famous major label recording artist. This is the kind of stuff that people do all the time. Because it feels normal and natural and if the music is a part of their lives and was what they experienced when the photos/video were taken, it seems totally natural to include it as backing music for the video.

I received an email from him, however, after he got a note from YouTube about how the video infringes on content from Universal Music. His concern -- and remember, he works in the industry -- was that he knows the camp has an ASCAP license, and he couldn't figure out why that didn't allow him to post the video. He was asking what he should do and if there was any way to make sure the video was legal.

The problem (well, one of many) here is simply that the ASCAP license only covers a limited set of rights under copyright law, and does not cover things like putting music to a video. In fact, without knowing the details, I'd bet that the ASCAP license his camp has really just covers performances at the camp. But, still, here's a guy who works in the industry who naturally assumes that what he's done shouldn't violate copyright law. Because it seems ridiculous to think that it does, especially when the camp that the video is for has "an ASCAP license."

The idea that anyone should need to understand the differences between performance rights and reproduction rights and performance licenses and sync licenses, just to post a fun slide show of a summer camp, doesn't make any sense at all. It's a serious problem borne out of a history of copyright law that was designed for an entirely different purpose. It's supposed to be for commercial infringement, not personal use, and copyright law has been built by simply duct taping on new or different rights every few years as the technology changes. What you get is a hodge podge mess that's impossible for most people to understand, even those who work in the entertainment industry and who that same industry insists only wants ever more draconian copyright law.

The system is hopelessly broken. But rather than looking to fix it, we have Congress trying to duct tape on another batch of rules and rights. What a shame.

Permalink | Comments | Email This Story

An Explanation For Why UMG May Be Right That It Can Pull Down MegaUpload's Video [Updated]

Mike Masnick — Fri, 16 Dec 2011 08:58:00 PST

See the update at the end

The legal fight between Megaupload and Universal Music Group keeps getting more and more... odd. After the court gave UMG basically a day to respond, the company filed its response and made a rather surprising point: that a deal with YouTube/Google lets it take down videos it has no copyright over. This seems odd, and lots of people are screaming about some crazy clause that lets UMG censor anyone's videos. But I think I understand what's going on here -- and it's a very specific situation, where UMG sorta used a loophole -- so read on for the details. UMG is still being questionable, sleazy and short-sighted... but probably legal.

The key part of the company's legal response likely is accurate and probably kills MegaUpload's case. There are a few different ways that content can be taken down off of YouTube concerning copyright claims. One is via ContentID, the automated system that matches fingerprints. One is via a DMCA takedown notice. And one is via YouTube's Content Management System. This last one doesn't get much attention and isn't that well known, but it's basically halfway in between the other two (loosely speaking), granting partners the ability to spot and block videos that aren't matched by ContentID, but without sending a DMCA takedown. If you're familiar with the details of the system (which it appears MegaUpload and its lawyers were not), it was actually easy to tell this was a CMS block by the message that appeared on the blocked video. It said "This video contains content from UMG, who has blocked it on copyright grounds." That's the message that shows up on CMS blocks. DMCA takedowns say that the video is "no longer available."

So, on that point, UMG may very well be correct in its filing, that it's not subject to DMCA sanctions because it didn't actually file a DMCA notice. This is kind of a weak excuse, frankly, and really calls into question how YouTube's CMS system works, more than anything else. In theory, this also means that the only retribution that can happen for UMG wrongly taking down the videos of others is that Google cuts them off. But seeing as Google has a big partnership with UMG to build and run Vevo, that's unlikely to happen. That's a bit scary, but it suggests UMG more or less has a free pass to shut down certain videos it doesn't like without much recourse (well, beyond public ridicule).

That said, a part of UMG's explanation isn't entirely clear, but I have some guesses as to what happened. UMG claims that its agreement with YouTube goes beyond just copyright, and that it's allowed to pull videos for other (unnamed) reasons. This is new, in a sense, because YouTube has always suggested that CMS is for copyright issues -- and, in fact, the original message on the video, did, in fact, say that it was a copyright issue. YouTube later changed that message to say it was a terms of service issue. And that provides a clue.

I believe that part of the Vevo agreement is that UMG gets to "pull" videos of its own artists from YouTube for the purpose of putting them on Vevo. That's the intention anyway. I know when Vevo launched, that was part of the deal. All the YouTube videos of UMG artists magically jumped over to Vevo. So, I'm guessing that UMG basically used this loophole, which was supposed to be about taking videos off YouTube for the purpose of putting them on Vevo, and realized it could just "take the videos off YouTube" as long as they had UMG artists in them, without ever putting them up on Vevo.

In other words, due to the specific nature of the Vevo agreement -- which was intended to move videos from YouTube to Vevo -- UMG can pull videos that show its artists off of YouTube. Of course, in this case, it used it for an entirely different purpose, which was to try to censor this ad. That backfired in all sorts of ways, and it sounds like YouTube told UMG to knock it off, knowing that this was not the intention of the agreement at all. And, for what it's worth, UMG has stopped getting the video blocked, and says it will allow it to stay up for now.

This situation is messy and silly, but it seems like an unintended result of contract language over Vevo that UMG exploited. It may be legal, but in the end, it was pretty dumb by UMG. This whole thing, in true Streisand Effect fashion, actually drove a lot more attention to the ad. And even if it was legal, it sure makes UMG look petty and vindictive.

Update: Received a response from a YouTube spokesperson which makes this a little more interesting.

Our partners do not have broad take-down rights to remove anything they don’t like from our service. In limited cases, if they so choose, and based on exclusive agreements with their artists, partners can take down live performances.

That confirms some of what I thought: that UMG does not have the right to take down any videos (as people keep implying), but that it may be able to take down some videos. The new bit of info is that it's just live performances. So, that would suggest UMG is even slimier. They tried to claim that those video clips of artists in the MegaUpload song were "live performances." That's clearly bogus.

Update 2: And... MegaUpload has conceded that its restraining order request is moot, and so the judge has denied it (pdf), while giving the company the right to file for a preliminary injunction and for discovery. So, not much of anything, but the case will likely continue.

Permalink | Comments | Email This Story

France Censors Site That Hosts Videos & Photos Of Police Misconduct

Mike Masnick — Wed, 19 Oct 2011 12:45:00 PDT

While US courts have started to make it clear that recording police on duty is perfectly legal, it appears that France is going in the opposite direction. In a recent ruling, a French court has ordered ISPs to block access to a website, which hosts videos and photos taken by citizens demonstrating police misconduct. Apparently, the court claims that such videos and photos, in conjunction with the names and affiliations of the officers seen, is a violation of privacy rights. As is explained in a comment on Volokh's site:

the dissemination of photographs and videos in addition to the names and affiliations of those police officers therein were treated as privacy violations. The court cites Art. 2 of the law of January 6, 1978, which makes makes it illegal for private sector entities to process personal identifying information without first registering with a government commission (CNIL). Moreover, dissemination of that personal identifying information has to be done under conditions that respect the privacy of the persons in question. The court also treats certain statements made about the police on the website as defamatory.

The "defamation" claim at the end may make some people think that this move is more justified, but a later comment clarifies the statements seen as "defamatory." None appeared to implicate any individual, but rather complain about the police in general and seem to be pretty obvious hyperbole -- i.e., things that wouldn't normally be seen as defamatory. The privacy claim is simply ridiculous. It seems to assume privacy rights where none exist.

It's difficult to see how this decision is anything other than an attempt by the French courts to hide police misconduct. That seems rather shameful.

Permalink | Comments | Email This Story

The Rest Of The Story: Fair Use School Created To Respond To YouTube's Questionable Copyright School

Mike Masnick — Tue, 12 Jul 2011 01:12:00 PDT

Back in April, we were pretty surprised to see YouTube launch a "copyright school", with a video and quiz that seemed woefully limited, and at times, misleading -- especially on fair use. Google has traditionally been pretty good on copyright issues, so it was unexpected that it would put out one of those kinds of propaganda videos, especially one that implied fair use was something you shouldn't bother with at all, and that all videos should be entirely new and original. Public Knowledge responded by offering up $1,000 for whoever could create a better video.

The winner has been announced, and it's Patrick McKay for his "Fair Use School," that takes the same basic style and makes a video about fair use, and which explains YouTube's DMCA counternotice setup: Of course, it's fair to say that McKay (admittedly) simplifies things a bit in saying what is "probably" fair use, which is a big part of the problem. Since fair use isn't a hard set of rules, but rather basically whatever judges decide fair use is, it's sometimes difficult to assume what is and what is not fair use.

Permalink | Comments | Email This Story

DailyDirt: Entertaining Robot Videos

Michael Ho — Thu, 23 Jun 2011 17:00:00 PDT

Watching robot videos is usually pretty entertaining -- especially when the robots fail catastrophically. But even when they don't mess up, robotic performances can be mesmerizing when the footage is played in fast motion. Here are just a few examples.

This is possibly the most unintentionally-funny video of a robot that can bundle matching socks. Insert phallic joke here. [url]
Robotic jugglers aren't quite perfect at juggling 5 balls at a time yet. And there's a long way to go before they can add a bowling ball and a chainsaw to their act. [url]
Paul the robot is aiming to take the job of pencil sketch artists at local fairs and amusement parks. Its drawings look a bit messy, though... [url]
To discover more interesting robotics-related content, check out what's currently floating around the StumbleUpon universe. [url]

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Permalink | Comments | Email This Story