After working for over 30 years as an intellectual property lawyer, I retired from Wilson Sonsini Goodrich & Rosati in January 2010. I'm now doing some volunteer work at the Electronic Frontier Foundation in San Francisco.
In order to record and upload a video to YouTube containing someone else's music, you need a synch (synchronization) license. This is even true if you are performing the music yourself (such as the Church example in these comments) and not using the author's own recording.
Problem is: you can't get a synch license! When I started learning the guitar and posted my own recording of "Brown Eyed Girl" on YouTube, I got an email from Van Morrison's publishing company. The company said that I needed a synch license to post the video -- but they wouldn't give me one. They did kindly agree to let my video stay up if I gave Morrison's publishing company credit in the video's comments, which I did. But without a synch license, the publisher has the right to send a takedown notice (absent fair use arguments).
SOPA makes it a felony to upload a video of someone singing a copyrighted song with up to 5 years in prison. Dr. Conrad Murray was convicted of manslaughter for killing Michael Jackson and only got a 4 year maximum sentence.
So it's a bigger crime to sing one of Michael Jackson's songs than it is to kill him.
An official EFF response to Don Henley is expected soon. In the meantime, Brad Templeton, an EFF director, published an unofficial response here: http://ideas.4brad.com/take-it-easy-don-henley
Here's the best part:
Take it Easy, Don. There’s a New Kid in Town, and it’s called the Internet. Get Over It. I Can’t Tell you Why, but in The Long Run, there isn’t going to be a Heartache Tonight. One of these Nights I hope you’ll you understand that for search engines to Take it To the Limit, they can’t be forced to police every search result.
Internet companies only grow when living Life in the Fast Lane, able to operate, innovate and design products without needing to check for permission from the music industry. If every time you wrote a song you had to worry about what every user who plays it and every store that sells it might do with it, you would lose your Peaceful, Easy Feeling quickly. Big companies might run filters, but if the small ones had needed to they would be Already Gone.
An important item to add to Downes' list is to fix the lack of notice and hearing in the existing draft of the Senate bill. See item 1 of the law professors' letter, available at http://blogs.law.stanford.edu/newsfeed/files/2011/07/PROTECT-IP-letter-final.pdf
This might be one of the easiest fixes to the bill -- just require a notice and hearing, such as a hearing similar to a civil preliminary injunction hearing.
Additional response to Anonymous Coward: One of the briefs supporting Viacom was by Stuart Brotman et al., and argued that tort law's "least cost provider" principle should be applied to YouTube. Brotman's brief is here: http://mbarclay.suekayton.com/IPDuckDocs/2010-12-10_Brief_of_Amici_Curiae_Stuart_Brotman_et_a l.pdf
Professor Carrier shows why Brotman's analysis should not apply in DMCA-type situations. YouTube's brief, and many of the amicus briefs, discussed other issues in the case.
+1 on this!
Just had to hit +1 on this article, using my Google+ account, sitting here at my desk of solitude.
They forgot Don Verrilli
They forgot Don Verrilli, who filed the original complaint for Viacom against YouTube, and who is now U.S. Solicitor General.
Thank you Senator Wyden!
All I can say is: Thank you Senator Wyden!
You need a synch license -- but you can't get one
In order to record and upload a video to YouTube containing someone else's music, you need a synch (synchronization) license. This is even true if you are performing the music yourself (such as the Church example in these comments) and not using the author's own recording.
Problem is: you can't get a synch license! When I started learning the guitar and posted my own recording of "Brown Eyed Girl" on YouTube, I got an email from Van Morrison's publishing company. The company said that I needed a synch license to post the video -- but they wouldn't give me one. They did kindly agree to let my video stay up if I gave Morrison's publishing company credit in the video's comments, which I did. But without a synch license, the publisher has the right to send a takedown notice (absent fair use arguments).
I was about to send Kwiatkowski some money until I looked at some other issues
I was about to send Kwiatkowski some money until I looked at her positions on some other issues. For example, things like immigration:
http://karenkforcongress.com/issues/immigration
and abortion:
http://karenkforcongress.com/issues/abortion
and the 16th Amendment!
http://karenkforcongress.com/node/40
After seeing all that, I'd rather donate to Darrell Issa.
Relative penalties
SOPA makes it a felony to upload a video of someone singing a copyrighted song with up to 5 years in prison. Dr. Conrad Murray was convicted of manslaughter for killing Michael Jackson and only got a 4 year maximum sentence.
So it's a bigger crime to sing one of Michael Jackson's songs than it is to kill him.
Unofficial EFF response to Don Henley
An official EFF response to Don Henley is expected soon. In the meantime, Brad Templeton, an EFF director, published an unofficial response here:
http://ideas.4brad.com/take-it-easy-don-henley
Here's the best part:
Take it Easy, Don. There’s a New Kid in Town, and it’s called the Internet. Get Over It. I Can’t Tell you Why, but in The Long Run, there isn’t going to be a Heartache Tonight. One of these Nights I hope you’ll you understand that for search engines to Take it To the Limit, they can’t be forced to police every search result.
Internet companies only grow when living Life in the Fast Lane, able to operate, innovate and design products without needing to check for permission from the music industry. If every time you wrote a song you had to worry about what every user who plays it and every store that sells it might do with it, you would lose your Peaceful, Easy Feeling quickly. Big companies might run filters, but if the small ones had needed to they would be Already Gone.
The Best of My Love,
Brad Templeton, EFF
One more for Downes' list
An important item to add to Downes' list is to fix the lack of notice and hearing in the existing draft of the Senate bill. See item 1 of the law professors' letter, available at
http://blogs.law.stanford.edu/newsfeed/files/2011/07/PROTECT-IP-letter-final.pdf
This might be one of the easiest fixes to the bill -- just require a notice and hearing, such as a hearing similar to a civil preliminary injunction hearing.
Yes they will
Law360 reports that they will go to the Supreme Court. Not that the Court will take the case.
XKCD on correlation vs. causation
Don't forget this important explanation by XKCD on correlation vs. causation:
http://xkcd.com/552/
What prompted Prof. Carrier's brief
Additional response to Anonymous Coward: One of the briefs supporting Viacom was by Stuart Brotman et al., and argued that tort law's "least cost provider" principle should be applied to YouTube. Brotman's brief is here:
http://mbarclay.suekayton.com/IPDuckDocs/2010-12-10_Brief_of_Amici_Curiae_Stuart_Brotman_et_a l.pdf
Professor Carrier shows why Brotman's analysis should not apply in DMCA-type situations. YouTube's brief, and many of the amicus briefs, discussed other issues in the case.
**Lead** lawyer on Viacom v. YouTube
Don Verrilli wasn't just "involved" in Viacom v. YouTube, he was Viacom's lead lawyer and signed the complaint. See:
http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv02103/302164/1/
I wonder whose side the SG's office will take when that case hits the Supreme Court?