Even Obama Is A Pirate: BMG Issues New Takedown On Original Obama Singing Al Green Clip

from the this-may-get-interesteing dept

Wow. So earlier today, we wrote about how BMG issued a takedown on the new web-based ad put out by the Romney campaign, which included a brief clip of President Obama singing Al Green’s “Let’s Stay Together.” As we argued, this use seemed to be pretty clearly “fair use.” And, of course, it was noteworthy that BMG only seemed to go after the Romney ad, making it pretty clear that this was politically motivated. The original clips of Obama singing Al Green were all over YouTube… and BMG only chose to go after the one used in a Romney commercial. It appears that someone pointed out to BMG’s lawyers that this looks really bad, so rather than backing down, BMG has doubled down and issued takedowns to a bunch of the original videos of Obama singing that one line from Al Green. Here’s one that shows BMG issued the takedown.

The original one that we linked to was actually from the Associated Press, who — as a news organization — has an even stronger fair use claim. But that video is missing as well, though it has a slightly different message on the site now:
That’s… weird, because the video was absolutely available just this morning. Has the Associated Press really decided to block that video in the US? Seems… strange. Why would the AP allow itself to be bullied like that? Because I’m curious about these things, I hopped on my handy dandy VPN system and magically transported my connection to Canada… where the video came back. Magic. So, it’s not entirely clear what’s going on here, but if you’re in the US (and not using a VPN) it appears that these clips of Obama singing Al Green are quickly disappearing from the web, despite clear fair use claims. The entire thing is 9 seconds and there’s no way that anyone could make a reasonable claim that this use takes away from the original work or somehow acts as a substitute.

And, of course, in true Streisand Effect manner, all this is doing is calling a lot more attention to the video… and BMG’s ridiculous censorious response to the situation.

Update: And… as Michael Weinberg points out, BMG appears to only be targeting President Obama singing Al Green. There are tons of other clips of Al Green singing the song himself or others singing the song. All left up. Hmm…

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Comments on “Even Obama Is A Pirate: BMG Issues New Takedown On Original Obama Singing Al Green Clip”

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104 Comments
ken (profile) says:

BMG Digs Deeper

Instead of admitting their mistake they are now covering their tracks to make this look like it was not politically motivated. It isn’t working.

If I was Al Green I would be incensed. For older artists having your music on Youtube is essential to keep your songs from being forgotten since the labels tend to dump old artists to make way for new music where profits are higher.

SujaOfJauhnral (profile) says:

Re: BMG Digs Deeper

For older artists having your music on Youtube is essential to keep your songs from being forgotten since the labels tend to dump old artists to make way for new music where profits are higher.

This is true of Tangerine Dream, I have read from one of them that there are more of their songs available on YouTube than they actually have anymore. From what I understand some of the labels that owned them destroyed alot of their master copies.

Anonymous Coward says:

Even President Obama is a pirate? LOL! Pirate Mike. You’re too much. Did the President upload the clip to YouTube? Did the President even make the clip to begin with? How is the President a pirate? I know that would be your dream come true, and I’m not surprised you’re so anxious to announce it in your headline (“Piracy getting legitimized, one headline at a time–Techdirt!” You can use that.), but give me a break. Exaggerate much?

Mike Masnick (profile) says:

Re: Re:

Even President Obama is a pirate? LOL! Pirate Mike. You’re too much. Did the President upload the clip to YouTube? Did the President even make the clip to begin with? How is the President a pirate? I know that would be your dream come true, and I’m not surprised you’re so anxious to announce it in your headline (“Piracy getting legitimized, one headline at a time–Techdirt!” You can use that.), but give me a break. Exaggerate much?

I always did wonder if there’s a procedure to have your sense of humor surgically removed, and I’m glad that you’ve confirmed that it’s possible, and it works. I’m only left with one question: how much did it cost?

Anonymous Coward says:

Re: Re: Re:

Awww, Mikey. One day your dream will come true. The President will be a pirate, he Supreme Court will declare all copyright law unconstitutional, and Congress will make it a crime for anyone to even claim any property rights in their creations. Yaaaarrrr! Keep up the good fight! You’ll get there someday, kiddo.

Anonymous Coward says:

Re: Re: Re:5 Re:

Power the strawman could have:

– The power to go up in smoke.
– The power to burn to the ground.
– The power to hypnotize people at the Burning Man Festival.
– Produce intense heat.

Now here is the challenge, it is finding a way to make something funny about those in a legal context.

This reminds me of Smooky the Bear, for some reason.

Beech (profile) says:

Re: Re:

What the hell, I’ll feed the troll. The President is a pirate because he did not honor the original artist’s performance rights. Did Pirate Barrack pay the ASCAP fees for his venue? No? Then he is trying to make COMMERCIAL ADVANTAGE* of someone else’s backbreakingly hard labor!

*Not sure how it’s commercial advantage, but anyone else caught by BMG singing in public would certainly be accused of it.

Beech (profile) says:

Re: Re: Re: Re:

Could be. Haven’t watched the vid, due to it being blocked at all, but I would just assume that Obama wasn’t giving his campaign speeches at your typical concert venues which would usually be the ones paying those fees. That being said, I guess there’s no way to tell for sure where exactly Obama was when he sang the offending song, and whether that place was up to date on the ASCAP bill. So I guess we’ll have to settle with saying Obama MAY be a filthy pirate.

Dave (profile) says:

Re: Re: Obama isn't the pirate. Associated Press is.

Actually, Obama sang Let’s Stay Together at the Apollo Theater, which is fully licensed with ASCAP, and therefore, it was perfectly legal for Obama to sing that song in that venue.

What BMG is claiming is NOT legal is for anyone to use a recording of that song in a YouTube video. And that appears to cover a recording of ANYONE singing that song, be it the President of the United States or that Anonymous Coward. (Or me, but I struggle to hit that high A, so I tend to sing “Love and Happiness” instead.)

Therefore, President Obama is NOT the pirate. So who ARE the pirates? Associated Press, CBS News, ABC News, The Young Turks, and whatever SuperPAC made that Romney ad. Those first three are large media conglomerates, all of whom have demonstrated great eagerness to sue anyone who “illegally” distributes their “intellectual property”. They’ve all been labeled pirates. And I guarantee you they won’t do a damn thing to fight this, because they want to make sure they have the right to shut down and/or sue anyone re-enacting 9 seconds of their crap, too.

This is the world we live in.

Makoto (profile) says:

I’m not sure why I was initially OK with Romney’s video being taken down, but instantly angered over Obama’s video being taken down. It may have to do with the fact that it’s literally nine seconds of playback, or it’s due to the fact that I don’t watch Romney campaign videos…hmm.

I hope this becomes a major election issue. It’s pretty obvious that copyright is being straight-up abused, and nothing really will change until it inconveniences people in power. Well, here’s the inconvenience – let’s see the change.

Anonymous Coward says:

100% boycott damnit!

Starve these evil lowlifes to death. Stop watching idiot-vision, turn off the background noise box and take your fat lazy offspring for a walk instead of zoning out in front of a screen, you lazy sob’s!

You’re your own worst enemies!

Al fucking who? I don’t give a shit if it’s his label that’s evil. They’re lowlife assholes and he signed with them – not me.

Fuck them both.

Makoto (profile) says:

Re: 100% boycott damnit!

Strictly speaking, you’d want to head out for the walk too right about now. No sense in spending time complaining about takedowns; there’s beautiful, beautiful sunshine to soak in!

As for Al Green signing with the label: That’s kind of how it was back then. There wasn’t really another way to get your music out there. I can’t fault the guy for signing with the group…but I can fault the group for their abuse of the DMCA and copyright law.

Anonymous Coward says:

Re: SonyBMG United States Phone Number.

It isn’t Sony BMG issuing the take-down. The record company doesn’t own the copyright to the song, the publisher does.

The owner of the song copyright can request any unlicensed sync be taken down for any reason.

It could be that that AL GREEN saw the Romney ad, and asked his publisher to issue the takedown. And it’s his prerogative to do so.

Anonymous Coward says:

considering the backing he gives to the entertainment industries, this couldn’t happen to a more deserving person, at a better time, with a better example. i know it wont make any difference. he is too thick skinned to admit to those industries having too much influence over ‘copyright’ and the backing being wrong, but we live in hope (and pipe dreams)

matthias says:

Still not available in the US? At the moment, both videos are available in Germany – even the one that has been blocked due to BMG’s copyright claim… Strange.
But it’s nice to know that there are videos available here that are blocked in other countries, never thought this could happen.
Oh, and your president really is a good singer 😉

jakerome (profile) says:

Ars Technica & other sites still don't get the DMCA

Left this on the Ars article. Mostly it’s a good article, but nearly every tech apart from Techdirt continues to make this same error. It’s a fine distinction, but a distinction nonetheless.
—————–
“The notice-and-takedown procedure requires YouTube to leave an allegedly infringing work offline for at least 10 days.”

That, quite simply, is false. On a few levels. First of all, YouTube has special deals with the RIAA & MPAA that don’t even require them to go through the DMCA process. Second, the DMCA requires YouTube to take down the video OR expose themselves to liability. An idiot in a hurry could’ve taken one look at the video and made the determination that there was no infringement, therefore no copyright claim, therefore no liability, therefore no reason to take it down.

But in this instance, YouTube is acting as a spineless. Yes, the DMCA allows & even encourages the censoring of speech (political or otherwise) for vindictive purposes under the guise of copyright law and the DMCA needs to be updated to reflect all that we’ve learned in the past 1.5 decades. But no, the DMCA does NOT require YouTube to take down every video that has had a copyright notice filed against it. That’s a misconception most people have, and great tech sites like Ars that repeat it so glibly have only reinforced this incorrect assessment of the law. I hope you can correct the article & avoid making this mistake in the future.

http://arstechnica.com/tech-policy/2012/07/yes-video-of-obama-belting-out-im-so-in-love-with-you-is-fair-use

Anonymous Coward says:

Re: Ars Technica & other sites still don't get the DMCA

“The notice-and-takedown procedure requires YouTube to leave an allegedly infringing work offline for at least 10 days.”

That, quite simply, is false.

Does it really matter anymore whether it’s exactly true?or precisely false?

It’s an idea that seems to have become embedded into people’s beliefs. Once that happens, the meme spreads to lawyers. And from lawyers the meme spreads to judges. The judges write their opinions with that belief. And it becomes the law.

In a short time, the original words of the statute don’t really matter anymore: The culture accepts the necessity of 10 days of censorship?even for core political speech.

Anonymous Coward says:

Re: Re: Re: Ars Technica & other sites still don't get the DMCA

I’m looking for the “sad but true” button.

Then I’ll hit you with an even sadder truth.

The vast majority of the American public will never even become conscious of the argument here or over at Ars.

That is, most people won’t hear about any fair use controversy. Instead, if they hear about the takedown at all ?read about in mainstream news? ?catch a five second comment on TV? they’ll hear that not even presidential candidates can get away with violating copyright. And that’s it. The entire message that will spread to the larger population is that Obama’s use was an infringement. Romney’s use was an infringement. That’s the only message they’ll ever get from this story. If they hear about it at all.

You can’t even copy nine seconds of a copyrighted song. Not even one line.

Not for news. Not for political speech. Not for nothing. Not even nine seconds. Not even one line. It’s owned, you see.

And the public will accept that. They don’t really have any choice.

Anonymous Coward says:

The use of a song in a video is a sync right. There is no statutory sync. A copyright owner (the publisher of the song, not a record company, who would own the original recording) can request a takedown for whatever reason they want.

Songwriters ask politicians not to use their work all the time.

It doesn’t appear that the Romney campaign has a fair use argument to stand on here, since they DIDN’T EVEN CREATE THE COVER VERSION.

Perhaps the doubling down was just to be thorough. I doubt Al Green or the song’s publisher cares about the original, they probably just don’t want Romney to use it in an attach ad.

And good for them.

Anonymous Coward says:

Re: Re: Re:

“It doesn’t appear that the Romney campaign has a fair use argument to stand on here, since they DIDN’T EVEN CREATE THE COVER VERSION.”

And?

And, in Eldred, remember when Justice Ginsburg wrote:

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations.

Well, Justice Ginsburg wrote that, but she was lying.

And she went on to write:

[T]he ?fair use? defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.

As we see with these takedowns, it just ain’t so. It doesn’t really work that way.

And Justice Ginsburg concluded:

We recognize that the D. C. Circuit spoke too broadly when it declared copyrights ?categorically immune from challenges under the First Amendment.?

But the D.C. Circuit had it right, and Justice Ginsburg knew it.

In actual practice, the ?fair use? defense is shit.

Middle of a political campaign in a presidential season, and we see the censorship. News about the President is news. Yet it gets censored. Political commentary criticising the president is core political speech. Yet Mr Romney’s video gets taken down. Censored.

Justice Ginsburg is a liar: ? Copyright runs roughshod over the first amendment.

That’s the ?And?.

Wally (profile) says:

Revenge

Maybe this is the “revenge” that was vowed upon Congress and the Obama Administration.

It could also be Obama was involved with the takedown and given the first takedown notices indicate the video was infact taken down by the very man who “stood against” SOPA. This makes Obama even worse for sensoring out his human side.

An idea I am getting is that Obama really posted the videos and VP Joe Biden, with his connections to the MPAA and RIAA, decided that it would look bad for for his future in the Whitehouse. Biden has also been known to take bribes.

Anonymous Coward says:

Re: Gonna be looking dumb here but.........

If it was politically motivated (which remains in question…. it might have just been commerically/copyright motivated), it was BMG playing politics against Romney, the challenger. They used the DMCA to remove a political ad his team ran.

It quickly became obvious to them that they looked like total partisan hacks by doing this, so they tried to fix it by going asshat on both parties and DMCA-ing the original clip (featuring Obama) that the Romney camp used to make the political ad.

MsFjordstone says:

Your title is an incorrect assumption

President Obama sang the snippet live at the Apollo Theater, which absolutely has an ASCAP license covering live performance. The news orgs who broadcast the event also have licenses covering their ephemeral use of copyrighted works. Probably even the White House has an ASCAP license. The “pirates” (I would simply call them infringers) are the non-news organizations who posted the clip on YouTube, not the President.

FUCK says:

This makes no good business sense

If its illegal to sing someone else’s song and post it or have it posted where it would be seen and heard by thousands of people although for no commercial take and the host of that sight or page makes advertising income from it and benefits financially the more that page is viewed, then it makes more sense for entities such as bmg to go after that money, rather that issue these fucking take down notices.. DUH

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