Copyright Conundrum: Was 'Public Domain' Music Silenced On YouTube?
from the it's-in-the-recording... dept
Mark Guertin writes in with an interesting situation that he’s dealing with, which I think highlights some of the problems with copyright law today. Guertin put together a YouTube video of some swimming pugs as part of a promotion for a charity he’s involved with. Knowing that music on videos is a potential copyright issue, he went to Wikipedia to find some public domain music, and chose Wagner’s Ride of the Valkyries to accompany the swimming pugs.
Except… he got blocked. YouTube’s content ID system told him that the song was owned by (who else?) Warner Music Group, and thus the soundtrack was muted. Guertin filed a counternotice, and the music was reinstated, but then muted a second time as apparently someone (Google/Warner?) didn’t agree with the counternotice. Without knowing the details, my guess is that the situation has to do with the different types of copyright coverage. While the song Ride of the Valkyries is public domain, each individual recording of it is covered by copyright. It seems likely that whatever recording was used is still under copyright.
Guertin is reasonably upset about the situation, especially the whole concept of having the music blocked until WMG has a chance to weigh in on it, noting that “guilt before innocence” seems incredibly unfair.
But the bigger issue may be how this (once again) shows how out of sync copyright law is with what people think is reasonable or fair. If you found out a piece of music was in the public domain, it’s natural to assume that a recording of that same piece of music is in the public domain. And to make things more confusing, that’s absolutely true (in the US at least) of a photograph of a public domain painting. But making a new recording of a public domain song? Bam. A new monopoly created.
Unfortunately for Guertin, the track he used probably is not in the public domain, even if the music is (yes, that’s confusing). That’s why, these days, it’s probably more reasonable to search out Creative Commons-licensed music than public domain music — because you can’t be as sure whether the PD part covers the recording as well as the music. To some of us, that seems like a problem with current copyright laws, while others appear to view it as a feature.
Filed Under: copyright, music, public domain, recording, ride of the valkyries, videos, youtube
Companies: google, warner music group, youtube
Comments on “Copyright Conundrum: Was 'Public Domain' Music Silenced On YouTube?”
Music does get tricky, especially since it has 3 standard, separate copyrights:
The Composition–the sequence of notes, whether written or performed.
The Lyrics–if any.
The Recording–a specific recording of musical work. However, recordings (as opposed to the underlying composition) didn’t get copyright protection until, IIRC, the 1950’s.
In the case of the OP, the composition is public domain, not the specific recording of a performance. A few decades ago, though, the recording wasn’t copyrightable, only the underlying work, so Mark Guertin could have freely used any recording of Ride of the Valkyries to his hearts content–almost. It turns out that the specific musical *arrangement* created for the orchestra to play the public domain work is separately copyrightable. So, Mark Guertin was likely using a copyrighted recording of a copyrighted arrangement. Sigh.
The Constitutional purpose of Copyright is to increase creativity. Copyright maximalism does the opposite, stagnating creativity and locking up culture.
Re: Re:
Good post, I agree with you.
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So, Mark Guertin was likely using a copyrighted recording of a copyrighted arrangement of a public domain composition.
Corrected.
Problem with Auto-Filters
I wonder how YouTube’s copyright filter handles multiple recordings of the same composition. Can it distinguish between a version recorded last year from one recorded fifty years ago? I suppose any group can add their own wrinkle to a song in performing it (so as to distinguish their version from that of others), but with classical music I would wager that the variations between each orchestra’s version is minimal.
Scary to think that automatic filtering systems like this could allow WMG or anyone else to potentially block the uploading of public domain music simply by rerecording and having the new version put into the filter database. That is no good.
BTW, without knowing the details why did you even post this thread? They are rather critical to the post. If Mark Guertin used a Public Domain MIDI track or some such then the take down was unconscionable. If he used a copyrighted recording of a copyrighted arrangement, then the issue is more nuanced, and is a more general, policy oriented question of whether one should be able to copyright a recording of a Public Domain composition, as is currently the case.
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“BTW, without knowing the details why did you even post this thread?”
Why not? Who are you to tell others what they should and should not post? He posted it because he wanted to, what’s wrong with that.
ditto
I’m sorry you are so confused Mike. Public domain simply means anyone can make a cover of it without having to bother with copyright. That cover can be copyrighted. How confusing is that?
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So, re-recording a song without changing it is making something new that deserves protection, but remixing a bunch of songs together changing them drastically is not creative and does not deserve protection?
I don’t get it, still.
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Most people don’t usually think of an orchestral performance as a “cover.” That’s a popular music thing.
It’s confusing because copyright is designed around that popular music model. It gets awkward for something like Ride of the Valkyrie’s.
“Unfortunately for Guertin, the track he used probably is not in the public domain, even if the music is (yes, that’s confusing).”
What is confusing? The 2006 recording by Whatever Symphony Orchestra is copyright. How hard is that to understand?
The music is public domain, and if so inclined, he can play it himself.
The only thing that is confusing Mike is why you try so hard to throw up a cloud of smoke to make copyright seem difficult when it is pretty simple in this case. At best, this guy was a “moron in a hurry”.
BTW, without knowing the details why did you even post this thread?
Because a big part of the problem is that the details in these kinds of situations are hidden. They didn’t explain why the soundtrack was blocked; they just blocked it. With the details of the notice/counternotice process being kept in the dark, outside parties have no choice but to guess at the details. I suppose you think that Google and Warner Music must know what’s best for us and that we shouldn’t question them.
It's Official!
Copyright has gone insane.
(C) :Lobo Santo 2009
Er, except we don’t have to ask YouTube. This post by Mike Masnick is based on correspondence with the YouTuber in question, Mark Guertin. Surely Guertin knows the source of the track he used, yet Masnick didn’t bother to find out that rather key detail before posting a thread titled “Was ‘Public Domain’ Music Silenced On YouTube?” If Guretin used a copyrighted commercial recording of a public domain musical *composition*, then the answer is “not exactly.”
Posting the OP before bothering to find out if the recording was copyrighted or not was premature.
Knee jerk much? Perhaps you should, you know, read the comments before making presumptuous accusations, as in this one by me, Post #1:
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Mike posted it for discussion. If you’re curious to the exact details, why don’t you ask Mark Guertin then? Then you actually contribute something constructive to the discussion instead of annoying everybody by being a whiny bitch. Why don’t you go investigate while he continues writing other posts?
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Ryan, sorry, Mike didn’t just post it for discussion, he posted it for (a) future links from other posts that will say something like “public domain music shut down”, and (b) so he could get another dig in on the copyright system:
“To some of us, that seems like a problem with current copyright laws, while others appear to view it as a feature.”
If it was only for discussion, Mike wouldn’t tell “us” how to think.
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Sounds like you’re not “us”, but rather, are among the “others.”
Mike doesn’t tell me how to think…and if you believe he’s trying to tell you how to think, then I feel sorry for you. Like any other topic, you gather information, consider the information, then, using your own brain, come to some conclusion (or fail to and go look for some more information).
This whole conspiracy-line of trying to figure out what motivates Mike’s blog entries is really getting old. And, even if your accusations were true, does not negate a reader’s ability to get something out of the site.
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The problem is this is how Mike avoids having an opinion you can attach him to. He’s being intentionally vague.
“To some of us, that seems like a problem with current copyright laws”
Should be:
“To me, that seems like a problem with current copyright laws” – but by couching it a different way, he avoids it being his opinion.
It’s fun to watch. I still get plenty out of this blog, although often it rivals the onion.
Re: Re: Re:3 Re:
1) What difference does it make what his opinion is? The purpose of this site is stated:
the Techdirt blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow.
If the purpose of this site was to come read explicit statements defining Mike Masnick’s opinion’s and inner feelings about different things, then you might have an argument.
2) I think it’s pretty damn obvious what his opinion is here without him spelling it out to you like you’re a baby. Unless you’re planning on subpoenaing him to court to get his views on record, this criticism is asinine.
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Yes, because a culture and technology news blog shouldn’t have to bother getting pertinent details before posting on a **specific incident**.
As to being constructive, perhaps you should actually read the whole comment thread before pulling out your snark, and read my, IMO, helpful and constructive Post #1.
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I suppose you haven’t read this site much. His standard workflow is to post a link to another article and then comment on it. This is not a news organization. The information here is not offered up as fact; he merely comments on another article. And by the way, if we waited until we had 100% all the information before we ever extrapolated anything, we would never discuss anything. So again, why don’t you go investigate? As he has stated before, that’s what the comments are for.
And I did read your first post. I don’t believe I criticized it anywhere…
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This post by Mike Masnick is based on correspondence with the YouTuber in question, Mark Guertin.
I wouldn’t exactly categorize someone sending an e-mail into TechDirt as a “correspondence”. Could the post have been more informative if Mike had followed up with Mark to find out more details on the recording? Sure. But maybe Mark didn’t answer his follow-up e-mail. Who knows.
Besides, the whole idea of having to get down to the level of the exact nature of the recording — music, lyrics, composition — is precisely Mike’s point. The layperson doesn’t understand these distinctions. Sure, it’s not that hard to understand in theory, but in practice, you have plenty of situations where even the lawyers can’t agree on how to apply the rules.
If Satriani can’t tell his work apart from, like, everyone else’s I wonder if Warner may be able to tell its recording apart from another non-Warner recording… so my guess is the DMCA takedown will be kept in place no matter what.
Copyright laws don’t need reworking, NO, not at all! Situations like this are perfectly logical and don’t need to be rectified!
…and if you believe that, I’ve got a bridge in the Sahara I’d like to sell you…
Another article illustrating how obsessed the world has become with music…
You can’t just have a single copyright for a piece of music! Oh no, music is SPECIAL! It has to have multiple copyrights and all sorts of legal loopholes to allow companies to claim copyrights on new recordings of songs.
Public Domain recording of Ride of the Valkyries
A public domain recording of Ride of the Valkyries is available here:
http://www.gutenberg.org/etext/10177
Change the music. I want to see the video with sound!
Regardless of the actual source of the music, the counter notice should have claimed that this was “fair use”. If it did, then Google should have restored the music and let WMG take Guertin to court over the “fair use”. Guertin could argue, in court, that the video is “fair use”. IANAL but I think he might win — the issues in court would be (http://en.wikipedia.org/wiki/Fair_use):
“1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”
* Satire and nonprofit use could be used to argue for “fair use”.
“3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;”
* Only part of the work is used in the video, and the part used is significantly altered by the transcoding. This could be used to argue for “fair use”.
“4. the effect of the use upon the potential market for or value of the copyrighted work.”
* The video improved the value of the copyrighted work by marketing the music. This could be used to argue for “fair use”.
Of course Greutin would be bankrupt long before he won the “fair use” case in court.
The guy was just an idiot.
He thought he was smart because he thought of the idea to use public domain music. Then he revealed his dim-wittedness by not actually understanding the law.
What’d he think the notes just played themselves? Classical musicians need to make a living too!
Re: The guy was just an idiot.
Last time i checked, classical musicians make most of money playing live concerts. Also classic music fans are actually the one who blow tons of moeny for sound equipment and (often vynil) records.
Everything recorded from public domain should be in public domain too. If anything, this would be good for education and promotion of classical music, which listeners base is shrinking. Is there any teenagers at all in US, who listen classical music?
Re: Re: The guy was just an idiot.
You simple have no idea on the massive amount of work required to perform classical music well. And also that different recordings can be completely different from each other, if you care to listen to the details.
I think the decision on how to monetize from public domain/classical/traditional-folk music etc should be left entirely to the musicians. The do own copyright and should be granted copyright. Another thing is that they may choose to reformulate the copyright using Creative Commons or similar arrangements. Some musicians do, and it is up to you and me to use it whenever it is appropriate.
Re: The guy was just an idiot.
Classical musicians should be paid for the PERFORMANCE, not the RECORDING.
Re: Re: The guy was just an idiot.
At that point, they will stop recording.
Another reason...
to just totally ignore it all 🙂
Btw
Way to let Weird Coward hijack the thread with semantic arguments about “what Mike’s intentions are” instead of discussing the article.
Jesus, at least when I hijack the thread I try to do it with some funny. C’mon Anonymous Harold, you too can be funny….
“So, Mark Guertin was likely using a copyrighted recording of a copyrighted arrangement. Sigh.”
That last part is extremely doubtful. Wagners orchestrational ability was a good part of what he was famous for. Making a new arrangement of a famous Wagner piece would raise lots of eyebrows in the conservative world of ‘classical’ music.
Just for the sake of being exact, the copyright form used for the music is form PA. The copyright for the recording is form SR.
Thanks folks
I guess I am a “moron in a hurry”. The actual music that I used was from the ogg posted on wikipedia, and on reading the wikipedia page more closely the IMAGE on the page was released to public domain (and since removed).
You really can’t win these days when it comes to music copyright.
Re: Thanks folks
“by Mark Guertin
I guess I am a “moron in a hurry”. The actual music that I used was from the ogg posted on wikipedia, and on reading the wikipedia page more closely the IMAGE on the page was released to public domain (and since removed).”
Interesting, that is the kind of highly pertinent detail Masnick should have sought and included in the OP before posting it. It isn’t like he had to beat a deadline for this kind of story.
So, assuming the PD recording on the wiki was indeed a PD recording, it seems that Warner/Google’s music ID system lays claim to a wide swath of roughly similar public domain audio that they also happen to have a copyrighted recording of. That being the case, their claim is, indeed, outrageous, and a falsely sworn statement of copyright violation.
I think that is wrong on both points.
A “cover” is when a band performs a song written and/or made famous by another band. Orchestral music is rarely associated with a single orchestra in that fashion. And the fact that the underling musical composition is copyrighted seperately from the audio recording is not evidence that copyright is designed around “covers.” Our current system of statutory copyright owes much of its structure to the player piano industry, not to “covers.”
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I think we’re saying the same thing there.
We identify orchestral music more with the composer, while popular music gets identified more often with the performer.
Would someone say “the Toronto Symphony Orchestra covered Bach’s Brandenburg Concerto?” The concept of a cover is more related to performer-focused styles of music, not composer-focused styles.
So, I can understand someone getting confused about the copyright of a recording of a public domain composition. We tend to think about the composers, not the performers.
I didn’t mean to say its designed around covers, but around popular music, around performer-focused music.
Hence, some of the confusion when confronting other types of music (liturgical music also comes to mind, as a type that isn’t performer-focused).
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The mistake is that in modern music, a cover is often of a song that is still under copyright.
So if you want to use that cover song for a video, you in fact need TWO approvals, one from the copyright holder of the song in question, and one from the copyright holder of the PERFORMANCE.
As this guy mentioned above, he was just the “moron in a hurry” that didn’t realize that performances can also be copyrighted.
Having'trouble?
Having'trouble'with'your'keyboard'today?
It could be that the Apocalypse Now soundtrack (which includes Ride of the Valkyries) is part of the content id system, hence the match. If that’s true, I wonder what recording of Valkyries was used in the movie.
The issue of copyright which has got everybody so upset (although how YouTube and others handle such issues is another subject), barely scratches the surface of far more profound musical questions. For a discussion of how music has moved from ritual to commodity and for prescient thoughts on the future of music that are only now being realised, I’d highly recommend reading Jacques Attali’s “Noise: The Political Economy of Music”.
From a personal point of view, writing as a musician, the written score forms only one part of the music, but is a permanent record. The interpretation of that score, a transitory event, is a unique creative process that remains only in memory. If a single instance of interpretation is digitized, then it too becomes a permanent record, a record that is derivative but completely distinct from the original score (this record could then be used as the basis, whether score or instrument for a further derivation that will again be completely distinct).
The economic model that musicians will have to follow in the future in order to make a living remains in flux; under the current system there seems little ambiguity in the Ride of the Valkyries incident.
Re: US copyright law - souind recordings
is unfortunately very bad. almost no recordings are in the public domain because in the Naxos case the judge decided that there was an unlimited common law copyright on sound recording- your only chance is something recorded by the US government (I have some old American vinyl records that actually say “public domain” on them – probably for this reason) in the UK at present recordings older than 50 years are PD – sadly the copyright lobby is currently trying to extend this and may well win in the near future and Yoputube / Warner will probably apply US law – even if you posted the stuff from the UK – as has been remarked before the most restrictive law is the one that gets applied in these cases.
Re: Re: US copyright law - souind recordings
There are several sources of public domain music.
http://www.musopen.com/ – public domain classical music performances.
http://www.archive.org/ – the internet archive.
http://www.gutenberg.org/ – project gutenberg.
The internet archive has The Ride of the Valkyries here – http://www.archive.org/details/EDIS-SRP-0197-06 – The performance is from 1921 so it is clearly in the public domain. I believe this is the file on project gutenberg here: http://www.gutenberg.org/etext/10177
Mark — please update the video with this music. I still want to see how it works out. This has potential.
Okay since you morons can’t seem to read. The work that was posted was supposed to be in the public domain. The whole performance was posted as a public domain missive. The fact that the damned thing was found in .ogg format means that it is IMPOSSIBLE to tell where the music came from. If you can not distinguish this then what argument would you have in court? Seriously that’s like me saying you stole my car because you bought the same car and I can’t find mine, except I still have my car in my driveway since in the digital world absolutely nothing is lost. Also if the RIAA can’t see fit to pay Cher and others for their performance, what makes you think that the musicians are getting any royalties. Pull your heads out of your asses and stop defending frivolous copyright. You people are the kind of assholes who think the guy who got sued because someone stole his pictures and sold them to a company that then sued him for his own work should just pay the 18k because they have the rights. These guys are the real damned thieves.
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“The fact that the damned thing was found in .ogg format means that it is IMPOSSIBLE to tell where the music came from”
Here’s the simple test: If it isn’t yours, and you have no idea where it came from, assume you DON’T have the rights to it. How hard is it to follow the simple rules of life? Forget court of law, congress, and all that, this is the basic stuff you were suppose to learn when you first played int he sandbox as a kid: If the toy isn’t yours, you don’t take it home with you. If you don’t know that you have rights to use music, DON’T USE IT.
The most stupid assumption is to assume you have rights on something. It’s like cleaning a gun assuming that it isn’t loaded. You are likely to get your face shot off that way too.
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It is very easy to determine if two classical music recordings are identical or not. Just pop the two soundtracks into a decent sound editor (such as Audacity) and it will reveal instantly if the music matches. I do myself record classical/public-domain music and quite often I do some deliberate “errors” in my recordings, and leave them as fingerprints. I know it will (if ever needed) work as proof in court for proving the authenticity of my recording, or for revealing a usage by someone who was a “moron in a hurry” and just grabbed my recording beleiving it was “public domain”..
Music is back
The music is back on the Youtube video. http://www.youtube.com/watch?v=JdCrEkVesCE
Counter Notice confusionuse MIDI
I’m confused as well. I thought that once the counter-notice is submitted that it has to go to court. And shouldn’t there be some form of sanityanti-DCMA-DDOS that gives the site (youtube) the ability to call shenanigans if it receives multiple take-down request which would, for any reasonable person, evaporate “good faith” on the part of subsequent DCMA take-down requests.
Guertin should have use the MIDI method to ensure that it was a public domain copy of the song.
Copyright protection
So if I understand this correctly, the written music that is public domain can be used freely however once it is played and recorded, that recording is copyright protected.
So if someone posts a comment on line, and mentions the word copyright in the posting, does that make the posting is now copyright protected and thus anyone copying that post to responed, violates the copyright?
Does anyone think that maybe the next step for them is to say that when someone covers a song on youtube with them singing it and posts it that it is now not allowed? Hmm…
February 15, 2067 - the Mayans never saw THIS one coming...
The problem is that sound recordings have been treated differently than some other media in copyright law. Because of the fact that federal copyright laws do not protect recordings made before 1923, some people believe that anything recorded before then is public domain. (seems to make sense, right?)
But the truth is that they’re not truly public domain because sound recordings made before the federal system was put into place are still protected by state statutes. Hence, your video which includes a 1921 recording of Valkyries might be legal to exhibit in Wisconsin (for instance), but be completely illegal in Illinois.
So most copyright experts would tell you that by publishing your video on any kind of nation-wide or world-wide stage (such as TV, the internet, etc.) is still a violation of copyright law. And that will continue to be the case probably until February 15, 2067 (95 years after all music was put into the federal system). And I hope I’ll still be alive to see it – assuming the big corporations don’t find a way to extend it even more.
On that day EVERYTHING recorded before and published before 1972 will suddenly be public domain 🙂