Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation

from the not-this-again... dept

Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer example of fair use — but the video was still taken down. There was some dispute at the time as to whether or not this was an actual DMCA takedown, or merely YouTube’s audio/video fingerprinting technology (which the entertainment industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A takedown over copyright is a takedown over copyright.

Amazingly enough, it appears that almost the exact same thing has happened again. A video of one of Lessig’s presentations, that he just posted — a “chat” he had done for the OpenVideoAlliance a week or so ago, about open culture and fair use, has received notice that it has been silenced. It hasn’t been taken down entirely — but the entire audio track from the 42 minute video is completely gone. All of it. In the comments, some say there’s a notification somewhere that the audio has been disabled because of “an audio track that has not been authorized by WMG” (Warner Music Group) — which would be the same company whose copyright caused the issue a year ago — but I haven’t seen or heard that particular message anywhere.

However, Lessig is now required to fill out a counternotice challenging the takedown — while silencing his video in the meantime:

While you can still see the video on YouTube, without the audio, it’s pretty much worthless. Thankfully, the actual video is available elsewhere, where you can both hear and see it. But, really, the fact that Lessig has had two separate videos — both of which clearly are fair use — neutered due to bogus copyright infringement risks suggests a serious problem. I’m guessing that, once again, this video was likely caught by the fingerprinting, rather than a direct claim by Warner Music. In fact, the issue may be the identical one, as I believe the problem last year was the muppets theme, which very, very briefly appears in this video (again) as an example of fair use in action. But it was Warner Music and others like it that demanded Google put such a fingerprinting tool in place (and such companies are still talking about requiring such tools under the law). And yet, this seems to show just how problematic such rules are.

Even worse, this highlights just how amazingly problematic things get when you put secondary liability on companies like Google. Under such a regime, Google would of course disable such a video, to avoid its own liability. The idea that Google can easily tell what is infringing and what is not is proven ridiculous when something like this is pulled off-line (or just silenced). When a video about fair use itself is pulled down for a bogus copyright infringement, it proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright.

This is backwards.

We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas — not lock it up and take it down because one company doesn’t know how to adapt its business model. We should never be silencing videos because they might infringe on copyright.

Situations like this demonstrate the dangerous unintended consequences of secondary liability. At least with Lessig, you have someone who knows what happened, and knows how to file a counternotice — though, who knows how long it will take for this situation to be corrected. But for many, many, many other people, they are simply silenced. Silenced because of industry efforts to turn copyright law into something it was never intended to be: a tool to silence the wider audience in favor of a few large companies.

The system is broken. When even the calls to fix the system are silenced by copyright claims, isn’t it time that we fixed the system?

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Comments on “Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation”

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60 Comments
Hephaestus (profile) says:

Time to think out side the box ...

One thought would be to use their own rules against them.

Set up altenatives to ASCAP RIAA MPAA (book publishers group name escapes me)that do both CC and standard copyright. With a true accounting systems put in place for each. A system that allows the copyright or CC holder to set any cost or fees he wants. Include ASCAP RIAA MPAA media list also with contact info for them if they choose not to participate. Do it as open standards.

Supply access to this to radio stations, restaraunts, clubs, TV stations, etc via a simple app that has all the media accessable through it. Give the per play cost per, fair use terms, cost per download, etc in the app.

Focus on college radio stations to start. Then as these people move into industry they could bring it to the mainstream. With online video and music and e-books coming of age this really wont take long.

Worst case this will cause competition and break the monopoly hold, best case it will literally bankrupt the current media companies.

Anonymous Coward says:

Re: Time to think out side the box ...

“Set up altenatives to ASCAP RIAA MPAA”

The problem is that these organizations typically have the most access to MSM (ie: public airwaves) due to the broken laws in place, so they almost have a government sanctioned advantage over others who want to set up an alternative.

Hephaestus (profile) says:

Re: Re: Time to think out side the box ...

“The problem is that these organizations typically have the most access to MSM (ie: public airwaves) due to the broken laws in place, so they almost have a government sanctioned advantage over others who want to set up an alternative.”

You are right read this comment before you respond. With the exception of radio, the public airwave are becoming less important. That is why I only mentioned College Radio (I should have included high school also). The internet is actually the new airwaves for broadcast. The media distribution companies are highly hobbled by their own actions, contracts, methods, inefficiencies, contracts, business plans, the fees they charge, the self defeating we are a monopoly and you will do as told and consume what we tell you attitude, changes in the way the public consumes media, greater competition from outside industries (think xBox, etc), and fear.

Here I listed several of the 120 plus weaknesses the media distribution industry has. In the full list I dont mix the record labels, with news papers, book publishers, and video producers, in that link I did.

Knowing the weaknesses of a business, government, army, etc allows you to formulate a plan to come at them from multiple angles. To whittle away at them using each of their weaknesses. They would probably refer to it as “business terrorism”. But it is actually “Felony interferance with a business model” oh wait thats just plain competition.

Right now they have no real competition. They blame the majority of their ills on “Piracy”. They are focused on controlling all of the music, video, books, and news.

To coming at them from the directions they dont expect in a way that hobbles them is the way to go. I will give you an example or two.

Accounting – is one of the things that the record labels do well but only in their favor. They use the wording of the law and contracts to basically give nothing to the artists unless they are top 200 or so. An open media Accounting system where every sale, streaming, radio play, sat play, download, fees charged or not (ie free), physical sales, etc are on display for all the world to see would be something the labels couldnt use. ASCAP would be forced to pay the small artists. It would very quickly become obvious that there were discrepencies between what the labels are reporting and what was actually going on. They would chalk it up to a rounding error, say contractual thats a different country, the accounting between companies eats up profit, the tax laws are different there, etc. They would have no option but to take their marbles and go home. It would stop them from selling through any site linked to the accounting system.

Open Copyright and Creative commons database – This would have to be Open source and open standards. It would list all the information needed to use or sell the media in question. It would stop the record labels from saying we cant find the artists and force payouts reducing their bottom line. This one would kill the DMCA take down notice as a weapon and tool against competition. It would also stop copyfraud for listed items.

sysadmn says:

Follow the law

Presumably, if a takedown notice was generated, someone swore under penalty of perjury that they believed their copyright was being infringed. If the notice was generated automatically without human review, who?

Since the law allows little recourse for false claims, shouldn’t prominent targets start suing for defamation of character?

Steve R. (profile) says:

Re: Re: Re: Follow the law

Appeals to “follow the law” are naive at best. We all like to think of the law as providing a level playing field, but what about laws that are passed by the Congressional supermarket at the behest of a special interest group? They are meant to serve the special interest group, not the public.

So even if the law contains some sort of slap-on-the-wrist penalty for filing a false claim or a malicious claim, just try to prove it. I believe that you would find proving it to be extremely difficult if not nearly impossible.

Matthew says:

Devil’s Advocate
The principle of free speech does not insulate you from the consequences of the things that you say. Does copyright necessarily violate the 1st amendment’s proscription against laws that abridge the freedom of speech? If not, then are the penalties of violation of somebody’s copyright just a consequence of exercising your right of free speech?
(I suppose, since the 1st amendment is an AMENDMENT, then it supersedes the constitutional promotion of the principle of copyright; If we find that copyright necessarily violates the 1st amendment, then it would be unconstitutional.)

hegemon13 says:

Re: Re:

“The principle of free speech does not insulate you from the consequences of the things that you say. Does copyright necessarily violate the 1st amendment’s proscription against laws that abridge the freedom of speech? If not, then are the penalties of violation of somebody’s copyright just a consequence of exercising your right of free speech?”

The problem with your argument is that you are arguing against the wrong thing. No one is saying that we should be immune from the consequences of our speech. Indeed, if speech violates copyright, the copyright holder has the right to sue the offender and receive compensation.

What we are talking about here, though, is not a legal or reasonable consequence of free speech. Rather, it is the wholesale censoring of speech by private industry based not on due process, but on accusation by a non-government entity. That is a huge problem.

Steve R. (profile) says:

The New McCarthyism

Those behind so-called “intellectual property” seem to have formulated a new form McCarthyism. Under McCarthyism, civil rights (including due process) were conveniently overlooked in the name of fighting Communism. Today, we seemly have substituted our quest to squash “Communism” with a mandate to squash “piracy”. Have some unknown entity point the finger of “piracy at you, go directly to jail. Due process? You must be joking.

Darren (profile) says:

eBay started it

This is quite close to eBay’s policy as well, which was apparently adapted with only power sellers and buyers in mind. They will pull anything that someone claims violates copyright, so power sellers simply have auctions pulled that compete with their wares. Since there’s apparently no one actually working customer service at eBay, the ruling stands. The result is that you can’t sell anything with a copyright without the threat of being fingered as a violator. It’s less so on Half.com, but this means the largest online auction site is pretty much defunct for a small seller dealing in any resale media – protection via first sale doctrine be damned.

Josh in CharlotteNC (profile) says:

Legal argument?

IANAL, but I had the following thought. Companies can supress free speech on their services if they choose, there is only a first ammendment issue at play if the goverment is supressing speech.

Is there a legal argument to be made that the DMCA’s notice and takedown procedure forces companies to implement prior restraint? Hence the law is not allowing a company the choice?

Or does the wording of the DMCA sidestep the constitution by not forcing a company to do it, only holding them liable if it later determined to be a copyright violation?

Anonymous Coward says:

Re: Legal argument?

Well… to my understanding (And much like you IANAL by any means), creating a law that abridges the freedom of speech by giving the legal power to do so to a third party is still illegal.

The fact that it is a law being used to that end should call the law into question.

It is not a violation for Sony to put in policies forbidding a kind of speech on the Playstation network, it is not a law it is their policy.

It should be a violation if the DMCA can be used (almost with complete freedom) to shutdown speech one does not like by LAW.

Take it to the next step, if you would. If we go by the logic as outlined by you there is a glaring problem. It would allow Congress to give the power to stifle and limit free speech by giving the power of such to a non-government body. For example:

The Unified Religion Doctrine (Made Up, I hope), passes, allowing the Catholic Church to seize and stop any speech that is unfavorable to the religion.

Anyone would shout foul over that, however using the same line, we can say it is not a first amendment issue since the Catholic Church is not a governmental body.

As such, it should not be who enforces the law, but the very existence of the law that is the problem.

Quarguil says:

No...

“The system is broken. When even the calls to fix the system are silenced by copyright claims, isn’t it time that we fixed the system?”

No Mike. IMO it’s time to get rid of it.

Artificial monopolies, can, and will, kill any form of “unauthorized” expression of opinion, or, “unauthorized” expression.

Censorship is making a comeback.(Some say it never left). What I read and see here and everywhere every single day, makes me think of Medieval times. The only difference now, is that a lot more people know how to read, but, that doesn’t change much if they can’t use it without “infringing”.

Dr. Lessig presentations are a bit like a Revolution. They have to be silenced by the ruling classes before the ruled revolt.

Yeah, this could actually be a great movie…LOL

And Mike, you and all the other readers here, especially those that have businness skills and any kind of leverage, please pay special attention to this comment: Time to think out side the box …

It’s time to start… something.

Hephaestus (profile) says:

Re: No...

Quarguil – Its impossible to go head to head with them. But it is possible to find all their weaknesses and exploit them. Here are a few weaknesses.

Accounting… They do this really well but only in their favor. They consider $100,000 USD a rounding error. They over charge in fees and only record some of the sales by their artists. Canada is a prime example of this, there is a 6 Billion USD law suit going on there over artists the record labels couldnt find and havent been paid.

New technologies… They just dont do the internet very well. Music and Video on the internet are becoming loss leaders. Infinite reproducability and no physical media reduces the perceived value of an item. They have no real way to monitize sales or profit from direct sales on the internet. The amount you can charge for advertisings on the internet is much less than they are used to because of competition.

Inefficiencies… The media industries are bloated, they pay to much for services, and they dont know how to do reduce costs. Technology now gives us the ability to record a studio quality record for next to nothing. It gives us the ability to produce feature films with CGI on a laptop. They dont use these technologies in house, they farm CGI out, and have half million dollar recording studios.

Release Windows… People want what they want when they want it. When its not available because of artificial scarcity people tend find something else to do, or find some other source for the same item. This other source in the case of the media providers is low cost rentals (netflix, redbox, etc), or infringement via torrents and P2P.

Charging way to much… The attitude we determine what the market will bear and what price to charge is one of the big self defeating problems of the media providers. For something that costs you nothing to duplicate and distribute the cost should be extremely low (approaching zero). Basic economics says if yours sales slow or fall off, reduce the price of what you are selling until you determine the market price. The Record Labels do the opposite, on iTunes they increased the price of individual tracks. ASCAP etc constantly increases prices to squeeze as much profit as they can, they have reached the limit of what people will pay and it is beginning to backfire.

Monopoly Status… This is the really big one. Organizations with a monopoly do not have the ability to compete. Competition destroys monopolies. Competition is met by the monopolists with obstacles throw at and in the path of that competition. EMI is notorious for this. The SOP is ask for a meeting with an upstart internet company, ask to invest, make payment demands for the use of the music that are truely outrageous, sue as a negotiating tactic, then settle for less than you asked for but with high enough fees and costs to put the company under. If the company being sued doesnt settle bankrupt them via the lawsuit.

ACTA…

Contracts… This is another really large problem. Especially for the record labels. They have contracts with the artists that limit what they are capable of doing or implementing.

Copyfraud… This goes on all the time. The google book deal is a perfect example. Publishing houses claimed books that should have reverted to the authors.

etc, etc, etc…

We now have a partial list of weaknesses. How do we exploit them? We compete in a distributed way. We create open source standards. … Big Ole GRIN …

yogi says:

Correction

Mike,

You had a few mistakes in this article which you might like to correct:

We live in a country that is not supposed to cherish free speech, and that must stifle it in case it harms the business model of a company. We live in a country that is not supposed to encourage the free expression of ideas which must be locked up and taken down because one company doesn’t know how to adapt its business model. We should always be silencing videos because they might infringe on copyright.

There, all fixed now. it’s just a matter of changing some articles, and then you can feel all good about yourself again.

Copyright=censorship=liberty and justice for all corporations

Shava Nerad (user link) says:

Work around?

Someone might want to experiment with transposer/key-shifter software for things like this to foil the theoretically automagical take downs. I suspect the fingerprinter looks for exact copy, and doing something to minorly change tempo or key would probably make it blind, and for a fair use snippet, hardly make a difference.

You shouldn’t have to, but hey…

RC says:

Re: Work around?

I am a producer and I uploaded a remix of a popular song. The only thing of the original song that remained in my project was the acapella…everything else was original. The fingerprinting program was able to somehow recognize the waveforms of JUST the acapella and tagged it as a 3rd party match. That is just ridiculous. It is a sad day when a simple remix is considered stealing.

Jam says:

WMG silences lots of videos

I’ve had some of my videos silenced with the same message about “an audio track that has not been authorized by WMG.” It also says that in some parts of the world they don’t just mute it but block it entirely. What’s really annoying is that they don’t tell you what song it is so you can edit it out. The videos were 10 minutes long and had several different tracks in the background and they weren’t all WMG tracks, but in order to figure out which are I either have to research all the tracks or figure it out through trail and error. WMG is the only major label that forces the videos to be muted all the other labels just put ads on the page/over the video with links to buy the track.

David L (profile) says:

Burden of Proof

My main problem with YouTube’s particular policy is that it puts the burden of proof on the defendant, not the plaintiff.

If a supposed copyright holder issues a DMCA takedown notice, YouTube pulls the video first, and then asks the accused to prove that their video is NOT a violation of DMCA. This flips the entire burden of proof standard that every criminal defendant currently enjoys in any court of law: innocent until proven guilty.

As far as I am concerned, if any copyright holder wants to enforce their copyright, they should have to first prove (or at the very least seek a preliminary injunction in court) that the copyright was violated in the first place.

Does that put a burden on the copyright holder? Maybe, but RIAA, et al have the legal resources to do so. (Piss on ’em , I say.) If you claim someone broke the law, you have to prove it, dammit!

YouTube is playing “CYA” by pulling videos immediately. Google should grow a pair and force these rediculous copyright claims to be legitimated before they yank down content.

Josh in CharlotteNC (profile) says:

Re: Burden of Proof

“My main problem with YouTube’s particular policy is that it puts the burden of proof on the defendant, not the plaintiff.”

Has nothing to do with Youtube/Google. That’s how the DMCA is written, and that’s just one of the problems with the DMCA.

When receiving a DMCA takedown notice, Google has two choices:
1) Take content down. Google is now covered legally under section 230 and doesn’t have to worry about being sued.
2) Leave content up. Google is now liable if content holder decides to sue. Copyright infringement goes up to $150,000 per violation.

That’s all the options. There really is no choice here. Even if Google had infinite resources, Google does not have the ability to determine if fair use applies (they can guess, but only a court can decide). Even if Google had infinite resources, Google does not have the ability to determine if the use was given permission by the content holder (the law assumes the content holder doesn’t screw up, but we’ve seen many cases where they do).

tro says:

Message

In the comments, some say there’s a notification somewhere that the audio has been disabled because of “an audio track that has not been authorized by WMG” (Warner Music Group) — which would be the same company whose copyright caused the issue a year ago — but I haven’t seen or heard that particular message anywhere.

The message is indeed now gone, but I was still able to get a screenshot of it in Safari history cache preview image (that’s why it is such low res).
http://www.mediafire.com/imageview.php?quickkey=yhj1r1gmi5m

Steve says:

You're confused.

We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas — not lock it up and take it down because one company doesn’t know how to adapt its business model. We should never be silencing videos because they might infringe on copyright.

No, we’re in a country which cherishes capitalism (see the recent Supreme Court ruling which allows corporations to basically buy elections).

Free speech” only counts when it’s paid for.

The one with the most dollars wins.

Michael Turk (user link) says:

Infringement

I’m guessing the clip of Endless Love is what got them in trouble. Oddly, the presentation gives credit to Soderberg.tv, but gives no credit at all to the artist that performed the music.

Since most of the clips in the presentation are 15-30 seconds yet the Endless Love clip is 90 seconds, that likely ran afoul of the filter.

Most movie soundtracks only use 15-30 seconds of music clips, yet all pay royalties for the use. Did Soderberg.tv pay royalties? or the person who made the video?

There is plenty of music that could have been used for free, but they chose to use a protected work. Lessig’s presentation chose to use an extended clip of a work that was likely infringing to begin with.

Is it really a surprise that it would be taken down?

Todd McKinney (profile) says:

Sorta Simple

It seems that the most effective countermeasure to this stupidity is to use it against the powers that think it is such a great idea. The only real “public awareness” event that I have seen so far is when John McCain’s campaign videos were taken down.

Can we not raise up some kind of grass roots “kill em all” campaign where everything that WMG and/or the congress and/or the white house cares about is taken offline? I think that it is stupid to discuss ways to skirt the issue, let’s take the problem directly to the people causing it.

Kevin Marks (profile) says:

I had a WMG takedown for a Universal song

I posted this video of my boys raking leaves with our puppy to ‘California Dreaming’, and got a WMG bot audio muting from YouTube.
I checked, and California Dreaming is owned by Universal, and is in the list of songs YouTube offered to replace my soundtrack with, so I appealed and they put the audio back.
So ‘WMG owns all music’ seems to be the default setting.

Hurricane says:

This ship has sailed......

Between Google exec getting convicted in Italy for not taking down a video of someone getting beaten up to the debacle over China I doubt that Google will fight anymore for privacy rights. That plus it’s increasing encroachment of the content market will slowly change Google egalitarian ideals.

And they were one of the last true bastions of privacy and fair use on the web.

It’s over; the internet will never be as free or as open as the analog world; the corporate controllers of content have rigged the system before it even took of. Email will never be as protected as snail mail. Fair use will be a bygone concept and privacy on the net is a farce. Your phone/texts calls will be logged and monitored. As more and more people rely on IT to communicate and conduct business they will allow more and more encroachment of their rights that a few generation ago would gall people.

sdpate (profile) says:

YouTube is the past

Posting almost anything on YouTube gets you in trouble. YouTube wants to be Hulu and is taking anything down on the word of the big studios and media companies.

Last week I got two notices on NASA footage which is what got me deleted last fall. Fox and AP are at it again.

Why bother? There are other places to post video and other communities to belong to.

Fighting back, which I’ve done, gets you deleted as well.

BP (profile) says:

Can't you just tell them they are in error?

This happened to me once as well, but I seem to remember YT giving me the option to let them know they were in error.
At the time I didn’t have lawyers or money to take them on, so didn’t bother refuting the claim… but is that required at all?

Clearly there is a problem of balance in terms of a persons ability to fight with a law firm.

Twaine (profile) says:

"Accidents" used as tool of subversion and freedom. (!)

These alleged software ‘accidents’ are like other ‘bad luck’ caused to activists that run our rigged election system or other subversions by a certain tribe up the proverbial ‘flag pole’.

In short, in our Judeo-Orwellian world, neither are accidents nor are the missing independant vote counts used to verify election results as ‘they’ cannot afford to lose control over Judeo-communist controlled America, at this stage of “Red Terror” Part Deux.

See Russian history if you’re unfamiliar with the Red Terror being reenacted for a police state in America as “terrorist attacks” and then see also “Le Terreur” of the French “revolution” of our still Masonic controlled world.

Awl,
TwA,

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