EFF Gears Up To Fight Back Against Bogus YouTube Takedowns
from the fair-use,-huh? dept
Last month, we were a bit surprised by claims from an NBC Universal representative that filtering technology in use today could distinguish between fair use and infringement when it came to content online. That was a surprise to us, because we’ve seen no such technology — while seeing plenty of bogus takedowns. That’s only increased in the last few weeks since Warner Music decided to demand more money for any video on YouTube that included Warner Music Group music, leading to many videos being taken down. The response is not just pissing off and damaging Warner’s own musicians, but also many, many fans whose videos almost certainly do not infringe or are covered by fair use rules. Warner’s public response to all of this, by the way? “No comment.”
The EFF is noticing this as well and is pointing out that it correctly warned that various automated filtering technologies wouldn’t take fair use into account and would cause many more problems. Now, the EFF is clearly looking for a test case, asking those whose videos have been taken down, despite clear fair use — such as the teenaged girl who’s video of herself singing “Winter Wonderland” was removed — to contact the EFF. I expect we’ll see lawsuits filed in short order.
Filed Under: copyright, fair use, videos, youtube
Comments on “EFF Gears Up To Fight Back Against Bogus YouTube Takedowns”
I admit, I haven’t seen the original statement, but to claim that any technology can distinguish between fair use and infringement is intellectually dishonest. Show me a technology that can not only evaluate content qualitatively (for example, determining the purpose and character of a given use) but also adapt to evolving case law and I’ll show you a hoax. It’s not about how robust your enforcement tools are, it’s about how responsibly and consistently you use them.
Mr. Masnick’s link contains no reference to anyone having made such a claim, NBC Universal or otherwise.
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Crap. That’s because I put in the wrong link:
That’s the correct link, and I was at the event. Alec said quite clearly that technology could distinguish between fair use and infringement. Gigi Sohn challenged him on this, and he insisted that it was true, and that they would not takedown videos that were fair use.
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Furthermore, here are my exact notes on what Alec French said at the conference. I was typing fast, so I obviously left out a few words:
“this is an area where we think tech if allowed to innovate can come up with the solution. exciting antipiracy technologies. drm. graduated response. fingerprinting. can be used with amazing exactness, while allowing fair use. implemented with great, great effect on UGC sites. filtering works great. the sarah palin skits weren’t on youtube or other ugc sites because they got filtered out. but on youtube, you’ll find clips, pieced together from news broadcasts. that wasn’t filtered out, because not an exact match. the tech is very exciting. “
The Sarah Palin example he gave was that full SNL skits of Sarah Palin were taken down, but they allowed clips that were actually being rebroadcast on news programs thanks to this “exciting” technology.
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Merely FYI, and as difficult as it may be for you may fully appreciate, I do extensive research before providing any comments. After MUCH digging I was able to locate what is easily one of the most BORING panel discussions I have ever heard. At times while listenting to the MP3 of the panel discussion (http://www.netcaucus.org/audio/2009/20090114copyright.mp3) I longed for an ice pick to stick in my hand merely because it would be much less painful.
The audio was lousy, so your quote is quite helpful. As best I can tell it does follow what Mr.French had to say. Being the intrepid soul that I am, I make it a point to always try and read the CVs of any panel member in any discussion about IP issues to try and get a feel for their qualifications. In this panel, but for one exception where I could not ascertain his undergraduate degree, not one lawyer on the panel has a background even remotely related to some form of technology/engineering. At least one had an undergraduate degree in political science, and several others in journalism.
You may wonder why I do this. Prior to the early 1980’s the vast majority of those involved in the practice of what is now known as IP were attorneys (at that time generally referred to as Patent Attorneys) with extensive backgrounds in technology AND engaged in the practice of the entire gamut of the law needed to accurately inform clients about all of their rights under law relevant to inventions, works of authorship, trademarks, unfair competition, and related antitrust and tax issues. Why do I deem this important? When a client walks into an office they want to know what it is that they can do. Far, far too often I have seen post 1980’s and so-called “IP” lawyers who are simply unable to consider all of the options provided by law because their experience is limited to only a small subset of the law. I have seen instances where someone familiar with only copyright provided advice that was not only glaringly deficient and incomplete, but in many cases was advice that was precisely the wrong thing to do under the business scenario faced by a client. The truth be told, in my tenure with a large aerospace corporation I had to spend an indordinate amount of time undoing the damage caused by such attorneys having a totally inadequate understanding of all relevant issues and options. There are few things that are more frustrating than trying to rectify after the fact GIGO advice provided to a client. In my estimation this amounted to about 25% or so of my time, time that could have been much better spent providing relevant and timely advice that would promote the interests of the company by anticipating future problems and helping set up business approaches that would prevent such problems, as well as helping the client to get from point A to point B as easily and beneficially as possible without crossing the line from legal to illegal conduct.
This said, I do have to agree with you and Mr. Masur that only one without any technological experience would ever suggest that there are filtering technologies capable of distinguishing infringing acts from those involving fair use. As Mr. Masur so aptly pointed out, fair use is dependent upon a close examination of all salient facts, and I can conceive of NO filtering technology capable of doing such an analysis. To suggest there is, or that it is just around the corner, exhibits total ignorance of filtering technology and its capabilities.
Yes, filters can be used to identify some content that may be subject to a copyright, but any suggestion that it can go beyond that into areas that are factually dependent (e.g., fair use) is plainly silly, uninformed, and wrong.
In the case of Mr. French’s comments I do have substantial questions about whether or not he truly has a firm handle on copyright law, and do have substantial concerns that others with similar backgrounds appear to have the ears of those in Congress. Small wonder that copyright law has wandered so far from its roots.
If I understand copyright law correctly what I’m about to propose would require laws to change, but how about this method of getting videos taken down …
If a takedown request is filed then an email or text message is sent to the person who uploaded the video. they then have 20 – 30 minutes to respond by saying that video doesn’t infringe before the video goes down.
If the uploader says that isn’t copyrighted or is fair use then the video stays online and youtube is relieved of liability. Then if the party claiming the copyright files a lawsuit then the video go away until the outcome is decided
If the uploader doesn’t respond in the intentionally short time period before take down then the video goes into ‘hiberbation’ where comments are still visible and there is a flag that says it is under copyright evaluation.
Then the video can be revived by the uploader saying it is fine or the supposeded owner stating that it doesn’t care anymore. Once again the video disssapears completely if a lawsuit is filed.
This would just be a way of google facilitating communication between copyright holders and alleged infringers without punishing anyone overly much.
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I think 20-30 minutes is too short (I’m not sitting at my computer 24/7, I do sleep on occasion, etc.). I’d push for longer (24 hours). I’m sure “Big Copyright” would push for shorter, citing some ridiculous urgency to “control damages”.
Another option, leaving the video visible to the public, even during your proposed “hibernation period”, could be interesting, in that it could allow more eyes a chance to judge the content for infringing or not. I don’t know if it would work or not (“common” people may be inclined to judge even infringing works as not; someone else seeing a video is in moderation may take that as a cue to archive the video and re-upload it later in case it gets deleted; etc.), but it could draw attention to the more questionable uses of the takedown notice.
But regardless, I agree with you that I think this concept of “delete first, prove later” is absurd and needs to be changed. Because not only does it create the potential for non-illegal content to get deleted unfairly (even temporarily), we’re seeing plenty of examples of it actually happening.
AC has a point Mike. I looked at the links you did supply, and noticed the lame NBC spokesperson analogy, but don’t see a NBC statement anywhere that reads anything like “could distinguish between fair use and infringement”.
And if I understand Alec french’s comments, he has a point. Assuming cable vision is profiting from the service of time shifting. Far late for me to sort through all the links though.
Wouldnt mind seeing an update on the NBC comment however
“asking those whose videos have been taken down, despite clear fair use — such as the teenaged girl who’s video of herself singing “Winter Wonderland” was.”
Batting 50/50 so far. It confuses me that you got it correct the first time, but not the second, in the same sentence even.
BTW, I wish organizations like the EFF would quite acting like Don Quixote by resorting to the courts, and start focusing their efforts on the real problem…members of Congress who are behind the scenes hearing only one side of the story. Testimony before Congressional committees is a nice dog and pony show, but it is what happens outside of the committee hearings that plays the controlling role in the structure of legislation.
I am guessing that this technology is related to the process they also use to pick their programming lineup. And what a job they have done there.
Did anyone get an uncontrollable desire to go out and buy the latest Coasters CD yesterday, you know the one with the song Searchin? No, I didn’t think so. It was big hit in 1957 when most people were not born. I was and when I did White Rabbit 1 the music came to my mind so we put it in the video. Wrong! Somebody named WMG owns the copyright to Searchin. That’s Warner Music Group, the label with no good new music that is suing everyone to make a nickle off old songs. Techdirt has a long list of stories about the bad behavior of Warner Music.
Totally Arbitrary or greed-motivated You Tube Censorship
This alleged “technology” foisted upon us by some beady-eyed hyperthyroid mercenary whiz-kid will undoubtedly turn out to be far more bogus a piece of contraptionry than the breathalyzer has been proven to be……in order to have any meaning whatsoever, it would have to make use of some kind of algorithm that can distinguish between “fair use” as broad and vague as that is and copyright infringement….not that much less vague. They supposedly have snoop satellites in the sky that can read your mail, too….maybe that is why it took them eighteen years to locate Phillip Garrido. Screw Tube has gotten too mattoidal in its greed, control-freaking and parasitism and needs to be brought down in a massive class action law suit in federal court….if a boycott of google fails. The internet is the sole and exclusive remaining bastion of artistic expression and free inquiry in this country….if Screw Tube thinks they can “take it over” and dictate our viewfare, it is time to fight back with any and every resource against their censorship even if it means bringing them completely down in ruin. I’m ready to start on it right now.