Big Entertainment Companies Issuing Wrongful YouTube Claims On Public Domain Works

from the that's-depressing dept

As Congress is debating SOPA, it seems worth taking a look at how copyright holders are already abusing existing copyright law to take down content they have absolutely no right to. Cory Doctorow has a column concerning how the “real pirates” of YouTube may be the big entertainment companies, who have been using YouTube’s ContentID system (not the DMCA) to “claim” a ton of public domain works:

FedFlix is a charitable project launched by Carl Malamud, a “rogue archivist” who raises funds to digitise and upload videos created at US government expense. Under US law, government creations are in the public domain and can be freely used by anyone, but the US government is remarkably lax about actually making its treasures available to the public that owns them.

Malamud’s group pays the fees associated with retrieving copies from the US government ? sometimes buying high-priced DVDs that the government issues, other times paying to have unreleased videos retrieved from government archives ? and posts them to YouTube, the Internet Archive and other video sites, so that anyone and everyone can see, download, and use them.

Malamud’s 146-page report from FedFlix to the Archivist of the United States documents claims that companies such as NBC Universal, al-Jazeera, and Discovery Communications have used ContentID to claim title to FedFlix videos on YouTube. Some music royalty collecting societies have claimed infringements in “silent movies”.

I’ve embedded that full report below as well. As Doctorow notes, under the ContentID system, getting too many strikes can get you in trouble, but there apparently is no way to defend yourself by saying “this work is in the public domain.” The closest may be that it’s fair use, but fair use doesn’t apply to the public domain (fair use is an exception to copyright law, but there’s no copyright on public domain material).

There are two issues here. One is the general over-claiming of material by others. That’s generally known as copyfraud and should be punishable, but rarely is. The second, perhaps bigger, point is how this ContentID system — the kind of pre-monitoring system that the entertainment industry has been trying to foist on every user-generated-content site for the past few years — isn’t always so benign. It can clearly catch perfectly legitimate things, and that’s a problem if we’re trying to encourage the free flow of information.

But, of course, nothing gets done to fix any of this because, as Cory notes, “there is no organized lobby for the public domain.” And that’s sad. Because, realistically speaking, Congress should be the lobby for the public domain, as they’re supposed to (I know, don’t laugh) represent the interests of the public.

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Comments on “Big Entertainment Companies Issuing Wrongful YouTube Claims On Public Domain Works”

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42 Comments
Anonymous Coward says:

Al-Jazeera, really? I find that hard to believe … I thought they were cool. They even have a creative commons repository.

Well, I guess it may depend. If Al-Jazeera is claiming privileges over content because they don’t want content they created claimed and removed by others (ie: Al-Jazeera wants to put it under creative commons), then that’s fine, and only shows their (somewhat reasonable) response to our broken legal system. If our legal system wasn’t broken, then this wouldn’t be necessary.

If they’re claiming privileges over content to have it removed then that’s a different story.

Anonymous Coward says:

Re: Re:

Here, I searched the PDF to find some relevant text.

” Al Jazeera has claimed rights to ?Work Pays America? (item 117), a 1936 film by the Works Progress Administration which we obtained from the FDR Presidential Library.”

(From that PDF).

Since the article doesn’t say much, I’ll give Al-Jazeera the opportunity to respond. In the meantime, I’ll give them the benefit of the doubt for now. I await their response.

Aaron (profile) says:

Idea.

Mike near the end of your post when it talks about there being no public domain lobby gave me an idea,

why doesn’t someone try and get the EFF, Archive.org, (I would thinkthe ALA would also support it) et al to form some mega public domain lobby tasked with defending and expanding the public domain, it seems that having the groups fragmented has only hurt it. Maybe try and get some biggers names like Google in to the mix.

The pro copyright board has the MPAA and the RIAA and a few others why not team up and fight back in a unify front, that way the lobby *may* even have funds to fight back on ways that would reach non techy people on TV, print, and radio.

Anonymous Coward says:

It seems to me that unless one knows what was actually sent by rights holders to YouTube and how YouTube’s Content ID system actually works, commenting on how well or badly the system works is a bit premature.

It is also useful to bear in mind that just because a copy of a work is retrieved from a USG archive it does not necessaryly mean that no private rights pertain.

USG works (defined at 17 USC 101) excluded from copyright comprise either works prepared by a federal officer or employee as part of his/her official duties, or works in which copyright is secured by the USG by bequest, assignment, devise, or otherwise from the rights holder (17 USC 105).

Works prepared by non-federal parties, even if under a federal funding agreement (contracts, grants, and cooperative agreements), are not USG works. Rights in these works are only extinguished should such parties transfer such rights to the USG by bequest, assignment, devise, or otherwise.

Hence, it is unwise to immediately assume that because a work was obtained from a government archive that copyright must not pertain.

Anonymous Coward says:

Re: Re:

I think you may be onto something here.

This would appear at least on the surface to be an issue of the contentID system, and not of false claims. As an example, if Al Jazeera used part of “Work Pays America” in one of their reports, and then claimed copyright on the report, does contentID then tag any video that matches any part of that report as offending?

For me, this story just smacks of “didn’t check it” journalism, proving once again that Techdirt is not much more than an advocacy group against copyright – dare I say lobbyist front?

Vincent Clement (profile) says:

Re: Re:

Explain this:

“Al Jazeera has claimed rights to ?Work Pays America? (item 117), a 1936 film by the Works Progress Administration which we obtained from the FDR Presidential Library.”

and this:

“Some music royalty collecting societies have claimed infringements in “silent movies”.

Al Jazeera was launched on November 1, 1996. And how does a music collection agency claim an infringement on a silent movie?

You constantly miss the point of the articles.

Anonymous Coward says:

Re: Re: Re:

“And how does a music collection agency claim an infringement on a silent movie?”

“Silent” movies still have music, boy.
In some cases, the music used may (repeat MAY) not be PD, either because the actual recording used is still under copyright or the music itself is still copyrighted.
S#!t happens…

TtfnJohn (profile) says:

Re: Re: Re: Re:

No, silent movies were silent as the sound track hadn’t been developed when they were made. Pianists and ogranists in theatres would often play something “on the fly” that would accompany the picture to accompany it, help to increase tension and all that stuff. Later some movie companies would send out music to play while the movie played and the musicians in the theatres would riff on that. It’s that that you can sometimes hear on copies of silent movies made after the sound track came along. The rest of the time the music is just someone jamming and riffing as the movie goes on.

If the music played was in the public domain before the movie was made and the sound track (much later) was added containing that music the music itself is still in the public domain. It’s just the specific combination of music and pictures that is subject to a new copyright.

That didn’t work to combat talkies so that soon died, anyway.

Anonymous Coward says:

Re: Re: Re:2 Re:

John, silent movies may have no sound, but most of them had music played with them when they were shown. What would appear online may be a version of the silent movie with music added.

“If the music played was in the public domain before the movie was made and the sound track (much later) was added containing that music the music itself is still in the public domain. It’s just the specific combination of music and pictures that is subject to a new copyright.”

Yes, and if they are part of a public performance together, then there is copyright, and there is performance rights fees to collect.

Since Mike didn’t put enough information up for us to really know what is going on, it’s all guess work.

Ed C. says:

Re: Re: Re:3 Re:

Yes, and if they are part of a public performance together, then there is copyright, and there is performance rights fees to collect.

No, transient public performances are NOT copyrightable. Even if the two were combined in a recorded form, such a derivative is not copyrightable. I guess you feel it’s OK to take and profit from the works of others, but I doubt you would feel the same if someone else were to reuse your composition. Some would say that such blatant “remixing” is plagiarism, no THEFT, and that such criminal acts must be dealt with as swiftly and harshly as possible–without due process.

Myself however, as most around here, would argue that the use wouldn’t get copyright, but could be considered “fair use”.

Vincent Clement (profile) says:

Re: Re:

Explain this:

“Al Jazeera has claimed rights to ?Work Pays America? (item 117), a 1936 film by the Works Progress Administration which we obtained from the FDR Presidential Library.”

and this:

“Some music royalty collecting societies have claimed infringements in “silent movies”.

Al Jazeera was launched on November 1, 1996. And how does a music collection agency claim an infringement on a silent movie?

You constantly miss the point of the articles.

Atkray (profile) says:

Re: Re: Re:

He doesn’t read.
1: It takes too long.
2: He would have to clean the spittle off the c=screen to see it.
3: That takes too long.
4: Since he has not been able to comprehend anything he read after the second grade, he would have to find someone he can trust to explain it to him.
5: That would take too long.

Is anyone else wondering how it is that FedFlix got their design past the lawyers over at Netflix?

PaulT (profile) says:

Re: Re:

“It seems to me that unless one knows what was actually sent by rights holders to YouTube and how YouTube’s Content ID system actually works, commenting on how well or badly the system works is a bit premature.”

In that case, I hope you’re not the same AC who’s always in here attacking YouTube and similar services for not magically identifying copyrighted material without intervention from copyright holders. Or do such distinctions only matter when it’s the corporations who are in the wrong?

TechnologyJunkie (profile) says:

Re: Government copyright exclusion

The article was talking about videos created at us government expense, not simply material retrieved from the government archives. The difference is perhaps subtle but meaningful. A library (say that of Congress) is a government archive in which there are works not created at government expense and for which you could go to jail if you started copying and reselling works obtained from said library.

Anonymous Coward says:

Re: Criminal?

I have always assumed that claiming something is yours when it isn’t was a criminal offence, i.e. fraud or falsification of records.

Silly me.

Silly you, indeed. ? I’m not joking.

Suppose that I tell you right here and now, ?I own the Brooklyn Bridge.? It’s not criminal to say that. Nor should it be.

But it isn’t just limited to ?Brooklyn Bridge? type statements. The test isn’t even whether I’m trying to deceive you, or whether you believe me or are likely to believe me. Instead, as it turns out, the Supreme Court has a case right now which will further settle the contours here: United States v. Alvarez.

DannyB (profile) says:

What's good for the goose

Is good for the gander.

There should be statutory damages of, oh, let’s say $150,000 per instance of false claim of copyright ownership and per false take down request.

Software tools that YouTube (and others) offer to content owners should be expressly recognized as DMCA take down requests under penalty of perjury. After all, these mechanisms wouldn’t have been built if it weren’t to automate DMCA take downs. Whoever, probably in management, that made the decision to offer certain parties automated take down tools could be deposed to discover exactly why these tools were created. It can only be a concession YouTube made to that would not have been made except for the existence of the DMCA.

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