Sony Music Issues Takedown On Copyright Lecture About Music Copyrights By Harvard Law Professor

from the getting-meta dept

Oh, the irony. First pointed out by Mathias Schindler, it appears that a copyright lecture about music copyright done by famed copyright expert and Harvard Law professor William Fisher has been taken down due to a copyright claim by Sony Music.

Fisher is well-known in copyright circles and has long advocated for a major reform to copyright to effectively spread a compulsive license to other uses, effectively legalizing file sharing, but with systems in place to still have artists paid. He’s detailed versions of this proposal in his book, Promises to Keep: Technology, Law, and the Future of Entertainment. That said, this takedown appears to have nothing to do with that whatsoever.

The lecture itself appears to be a part of his online course, CopyrightX, which is available under a Creative Commons Attribution 4.0 License. Thankfully, on the CopyrightX website, there are downloadable versions of the lectures, so I was able to download and watch the full lecture to see what the takedown was about. If you want to follow along at home, the lecture is the third one in section 3. Section three goes into detail on the “Subject Matter of Copyright,” and the third lecture is about… “Music.” You can download it here.

The lecture itself is 24 minutes long, and the vast majority of it is dedicated to creating and explaining this chart, which shows (partially) the messy nature of music copyright licensing today (as a side note, I really appreciate that Fisher is so thorough as to include under the table “payola” as a part of this chart):

However, towards the very end of the lecture, Fisher does play a few sound recording clips to demonstrate a point around cover songs and compulsory licenses (along with his personal opinions on the quality of Stevie Ray Vaughn v. Jimi Hendrix). The clips played are all versions of the Jimi Hendrix classic song Little Wing. You’ve heard it. In the lecture, Fisher plays approximately the first 45 seconds of the song, from 17:44 in his lecture to 18:31. Then, to demonstrate specific points about cover songs, he plays approximately 15 seconds of a cover by Santana and Joe Cocker. Then about 35 seconds of a version by Stevie Ray Vaughn, and finally about 40 seconds of a version by The Corrs. By my count, a little over 2 minutes of the entire 24-minute video are music clips.

Let’s be clear here: this is unquestionably fair use. It’s not entirely clear to me if this was an explicit takedown or merely a YouTube ContentID match, but either way there is no reason for YouTube to have allowed this to be blocked. If you run through the four factors test of fair use, all four suggest that it’s fair use. The purpose and character of the use is clearly for educational purposes, which the fair use part of the law explicitly calls out as an example of fair use. The “nature” of the work is a song, but that seems to have little bearing here on the fair use question. The amount and substantiality of the portion taken was fairly small — basically just enough for Fisher to make his point showing the differences between the songs and how that applies to the compulsory licenses issued for cover songs. And, finally, the effect of the use upon the potential market is nil. No one is listening to Fisher’s lecture as a “replacement” for going out and getting the Hendrix song, or any other version of Little Wing. And I don’t think there’s a huge “market” in “licensing music to copyright lectures.”

In fact, considering how frequently we hear the RIAA and other copyright system supporters (especially within the recording industry) arguing that what the world really needs is better education on copyright issues so that the public better understands it, it seems particularly stupid to issue a takedown over a free lecture explaining music copyright. But, of course, no one ever suggested that the recording industry is particularly intelligent in how it goes about fighting its peculiar war.

This story is reminiscent of when Warner Music issued a DMCA takedown on a presentation by another famed Harvard Law professor, Larry Lessig. Similar things have happened a few times to Lessig, including one case where Lessig sued in response, seeking a declaratory judgment of non-infringement along with damages under DMCA 512(f), which forbid “misrepresentations” in filing DMCA notices. That case eventually settled, with the record label (an Australian label called Liberation Music) paying a sum of money that went to the EFF. It’s unclear what Fisher will do in this situation, but I imagine that as this story begins to get attention, both Sony Music and YouTube may want to reconsider the original move to take down the video.

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Companies: harvard, sony music, youtube

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Comments on “Sony Music Issues Takedown On Copyright Lecture About Music Copyrights By Harvard Law Professor”

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78 Comments
That One Guy (profile) says:

99.9% accuracy... .01% of the time

This also serves to highlight even more the utterly absurd claims by maximalists that excessive and stringent ‘copyright protections’ aren’t a problem for non-pirates because mistakes are so very rare. If something that is clearly an example of fair use can be pulled then pretty much anything can be, on nothing more than a blind assertion, ‘That’s infringing’ without a single care to actually check if it is first.

Those that object to their actions and methods don’t do so because they’re siding with the pirates, as the maximalists like to claim, but because the maximalists have shown time and time again that they have no interest in avoiding collateral damage. If protecting ‘legitimate’ speech requires ‘protecting pirates’, as is the case, then the maximalists have only their complete indifference to accuracy to blame.

Trails (profile) says:

Re: 99.9% accuracy... .01% of the time

This is absolutely why many copyright stumpers try to frame fair use as an affirmative defence. It complicates schemes like this, where automated tools/manual takedown companies (aka tools) are very very bad at discerning fair use, hence they (severe copyright enforcement types) want to make it not their problem.

The problem with it as an affirmative defence is that engage to protect this involves lawyers and lawsuits to get content unblocked and that, to date, this has not resulted in fees.

Anonymous Coward says:

Re: Re: 99.9% accuracy... .01% of the time

The problem with it as an affirmative defence is that engage to protect this involves lawyers and lawsuits to get content unblocked and that, to date, this has not resulted in fees.

More to the point, the labels are well versed in using the legal system to bankrupt people while losing the case and every appeal. Challenge the labels, and they will likely take you to court, at which point you can give in to their demands, or spend all your money on layers, but in either case you likely end up bankrupted.

That One Guy (profile) says:

Re: Re: Re: 99.9% accuracy... .01% of the time

As Wyrm points out, so long as courts accept the use of bots to automate infringement claims, any ‘requirements’ for consideration of fair use are completely and utterly useless, because bots can’t decide fair use.

If the courts were to be logically and legally consistent, they would either require a consideration of fair use or allow bots to file DMCA/infringement claims, not both. You cannot have one if you have the other, unless the bots are only used to spot potential infringement, and the actual claim is made after a living being looked over the potential infringement and made the infringing/non-infringing decision.

Anonymous Coward says:

Re: Re: Re:

I’d like to see the software become sentient enough to appear in court to testify about how it has the cognitive ability to swear under penalty of perjury and certify that the information contained in the notification is both true and accurate.

Who knew Skynet would originate from bad copyright law?

Anonymous Coward says:

Fair use

Since the takedown didn’t take fair use into consideration the software that did it should be barred from being used again. They can’t hide behind it being an automated system if there is no way for fair use to be considered. This is not benefiting the public, you know the people that are supposed to benefit from all of this in the first place.

DannyB (profile) says:

Re: SME

Sony the same fine company that distributed malware on an audio cd. Infected millions of computers. The owners of which had to pay a significant fraction of the cost of that PC in order to rid it of the malware — never mind the massive inconvenience.

Then Sony pretended like it all was no big deal.

It makes me glad I was using Linux back then. And glad I did not buy Sony music CDs. Sony was only punishing legitimate purchasers for being stupid enough to buy their CD.

Anonymous Coward says:

Re: Re:

Are the specifics spelled out? Is it impossible to claim fair use on such a long sequence?

Just saying that the content ID – system isn’t the best you can get at making legal distinctions on such a volatile and low enforcement area of law. Besides, Content ID represents content ID, but not legally. I would assume the owner of content ID could be in trouble with the law since the day it was born…

DannyB (profile) says:

Re: Re: Re: Todays Lesson

Maybe the lesson SME is giving, and one we should not be quick to thank them for, is a lesson along with a demonstration of how to abuse copyright.

Hey future lawyers: the real lesson here is not on the contents of that lecture you can no longer see, but in how quickly and easily we can take down anything we want, any time, any where. Tomorrow’s lesson will be that it is not even necessary to use a clip of Sony’s music. Even a nature recording can be taken down by a bogus DMCA takedown.

Future lawyers, there is a large market for your services to censor all sorts of things. Copyright should be the natural tool you think of when it comes to censorship.

DannyB (profile) says:

William Fisher missed something huge

The lecture itself is 24 minutes long, and the vast majority of it is dedicated to creating and explaining this chart, which shows (partially) the messy nature of music copyright licensing today

That chart is great. But it completely omitted something recently discussed here on TD.

Publicity rights!

While Google paid handsomely to secure the proper licensing to the marshmallow song, the singer of that song has now decided that vocalists should have a new imaginary right not covered under all existing music licensing. Publicity rights. And thus Google finds itself in a lawsuit with the vocalist of music they properly licensed.

I hope William Fisher can update his chart.

Anonymous Coward says:

Another case of the harm of zero tolerance

This is just another case pointing out the harmful effects of zero tolerance. YouTube, to minimize being drawn into legal fights, has instituted a zero tolerance tool. No, they don’t even have to have the tool, but to make the labels happy so Google can get music licensing elsewhere has developed this tool. My guess is, no amount of wheeling an dealing by Google will get them any less than zero tolerance by RIAA and the like.

Anonymous Coward says:

Does Mike Masnick ever read the crap he’s writing? It’s like he types the stuff but doesn’t even proofread his own crap.

I’m referring to the point where Mike points out that the professor uses 40 seconds of a song in the lecture/video, which clearly violates copyright law. Not only that, but Mike goes on to further point out that this is ‘fair use’.

UH, SAY AGAIN?

Either Mike forgot to read the crap he was writing or he forgot that copyright law clearly indicates that websites may preview less than 30 seconds of any song without needing a copyright license in order to stream or preview that song.

Let me say this again, and this is a direct quote from Mike’s article above:

35 seconds of a version by Stevie Ray Vaughn, and finally about 40 seconds of a version by The Corrs

That violates copyright law and the professor was required to obtain a license for each version of the song. Either this was a lapse in judgment when the article was written or he’s trying to apply ‘fair use’ to “any duration of any song that anyone wants to use”.

jupiterkansas (profile) says:

Re: Re:

You might want to learn how fair use works. He could use the whole song if it was fair use.

The 30 second previews you talk about are not fair use, and I’m not sure there’s even a law like that. More likely, it’s just an agreement between the labels and the streaming site (i.e. not a law).

But thanks for trying to sling out insults.

Anonymous Coward says:

Re: Re:

Well…generally, all unlicensed uses are infringing, unless fair use or the statutory or common-law limitations of copyright apply.

17 USC § 110 may be an applicable statutory limitation. It explicitly allows these types of course materials, without regard to the amount of the work being used. However, the fact that the lecture was available on YouTube to people outside the course may be a problem.

Duration does matter, but not in the way you think. In U.S. common law there is the doctrine of de minimis, which applies more to the melodic part of the composition rather than the recording (e.g., two or three notes aren’t copyrightable). But contrary to your belief, there is neither a statute nor a “bright line” ruling which says 30 seconds of “preview” is fair use while 31 seconds is not. Although widely-believed, this is a myth based on a widely tolerated norm.

Fair use involves several tests, not the least of which is the context in which the otherwise-infringing use occurs. When used as an example in an academic discussion of copyright by a formal educational institution, the use of almost any unlicensed third-party material would likely be fair use, even if used in its entirety (as photos often are), provided the other tests are passed as well. The other tests amount to “how much is too much”, and the guidelines are deliberately vague. What is too much in one situation is perfectly reasonable in another. If the video lecture were undermining the market for those songs, it’s probably not fair use. It’s doubtful that 40 seconds of a 261-second recording, buried in (and essentially inseparable from) a lecture, would be considered too much.

Anonymous Coward says:

Re: Re: Re:

Well…generally, all unlicensed uses are infringing, unless…

When you say “all unlicensed uses” you seem to have inverted the public policy expressed in § 106 (“Subject to sections 107 through 122…”), which regards copyright as a limited, statutory monopoly.

Using the pages of a copyrighted work as toilet paper is most usually not a licensed use. Neither does it seem to readily fall within fair use or common-law limitations. Instead, I would regard that use as simply outside the scope of copyright.

nasch (profile) says:

Re: Re: Re: Re:

Using the pages of a copyrighted work as toilet paper is most usually not a licensed use. Neither does it seem to readily fall within fair use or common-law limitations. Instead, I would regard that use as simply outside the scope of copyright.

If you mean just tearing out the pages from a book and wiping your butt with them, sure. That’s not a copyright issue. But if you mean making toilet paper with copyrighted text printed on it without a license, unless it’s considered parody that would be infringement.

Anonymous Coward says:

Re: Re: Re:2 Re:

If you mean just tearing out the pages from a book and wiping your butt with them, sure.

In the past, I have visited outhouses where the Sears and/or Monkey Wards catalogs were the standard issue. That was in an older, more rural America, I guess.

Classier outhouse may have had magazines, for all I know, but I don’t recall seeing them myself.

Mike Masnick (profile) says:

Re: Re:

UH, SAY AGAIN?

Either Mike forgot to read the crap he was writing or he forgot that copyright law clearly indicates that websites may preview less than 30 seconds of any song without needing a copyright license in order to stream or preview that song.

As plenty of others have noted, your claim here is incorrect. There is nothing in the law that says there is a 30 second rule for music.

Nice try though.

That violates copyright law and the professor was required to obtain a license for each version of the song.

That is false. Fair use is context specific, and in this context, the amount of the song used is almost certainly fair use.

Anonymous Coward says:

Re: Re:

Once again our copyright apologizer fails at his own example. Displaying another time the ignorance he operates under to defend his stance.

I’m not sure which is worse, his ability to form useless defenses against strawmen that don’t exist because he didn’t read the article first or because he operates under half baked ideas, claiming the authors as well as the topics are grossly slanted. Then too, when you start out with an assumption and a bias, it don’t get better from there.

Bob Webster (profile) says:

File a Legal Complaint

It would be nice if users would file a legal complaint on YouTube (there is a form, under “…More”, “Report”) because someone is abusing the DMCA to hide content users are entitled to see. If nobody complains, YouTube has little incentive to stop abusive DMCA practices.

https://www.youtube.com/watch?v=2GGE_ToREPw&feature=youtu.be

Anonymous Coward says:

Re: Re: Re:

I blame youtube for giving the benefit of the doubt to corporations and groups of people that constantly get caught lying and abusing the DMCA to get stuff they do not like taken down.

It is being used to censor, and youtube is supporting this by taking their word for it without looking into it. If they incapable of looking into so many takedown requests then the solution is not to let them all pass.

Anonymous Coward says:

Not afraid of Piracy but of Competition!

This is not about piracy. Never has been.

It is simply the ongoing effort of the legacy media publishing houses to undermine every distribution channel other than the ones they control directly.

“If anyone puts up content anywhere except with us, we will sabotage it, without repercussion. If you want to have your content distributed without the fear/risk of having it taken down on a whim, publish it through us (for a hefty fee)”.

“Piracy” is just the excuse to put more and larger hurdles in the processes of other distribution channels, making it ever more difficult for new startups to enter the market.

The ‘big ones’ don’t want to protect against piracy! They want to protect against competition!!

Wendy Cockcroft says:

Re: Not afraid of Piracy but of Competition!

Damn straight! Monopolies of any kind are antithetical to the notion of a free market. I’m willing to tolerate temporary ones for the purpose of allowing a creative worker to earn from his or her output but after that, in payment for the temporary privilege, it must fall into the public domain so that others can use and distribute the works.

At no point, after a work has entered the public domain, is the original author/creator prevented from making money from his or her work. They may, however, have to compete with other distributors. Well that’s how a free market is supposed to work.

DontQuoteMe (profile) says:

How would fines alter this behavior?

I have an idea. If you initiate a takedown and it is wrong, you pay $500 the first time and double the amount each time after that. So, 500, 1000, 2000, 4000, 8000, 16000 and so on. For companies which automate these systems, they will soon be fined out of existence. This possibility will make them put all takedowns in front of a pair of eyeballs, where they should be going in the first place.

Kevin (profile) says:

Takedown

Can one imagine if the media copyright laws applied to say the furniture business, the motor industry (both share technology) housing construction and a plethora of other businesses, we would all be sitting on stones, Walking everywhere and living in caves.
The whole music industry needs to wake up and realize the days of making big $$$$ for a few hours work has ended.
It will never return. Those days of multi million sales of vinyl and plastic for a very small percentage of artists is history.
My grnad children will probably ask, “What is a Sony”

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