Sirius XM Uses DMCA To Memory Hole Archive Of Howard Stern's Interviews With Donald Trump
from the but-copyright-isn't-used-for-censorship dept
Earlier this week, the company Factba.se posted an archive with audio and transcripts of every interview that Donald Trump did on Howard Stern’s show. As they noted, some of those interviews had turned into news stories with a fair bit of public interest. Factba.se pointed out that while those news stories quoted from the interviews, there was no publicly available archive of all those interviews for others to listen through.
We?ve found snippets and pieces before. But, per our mission, we want to ensure that anything in our database is the full transcript, versus an excerpt. As such, we were interested in the full record of conversations between Donald Trump and Howard Stern from the 1990s forward. To make sure we had it all, we wanted the whole show to check.
Our research indicated he was on the show dozens of times, but not the details, exact dates, etc. We reached out to people who operate fan sites, particularly marksfriggin.com, and on the Internet, particularly via Reddit. Stern fans are known for collecting recordings of old shows, so we were hoping to find the full recordings…
After being “insulted in ways both creative and thorough,” the company thought it wasn’t going to get access to the files, until someone leaked the whole batch to them:
Out of the blue, early in the morning September 5th, about 3 1/2 months after we had moved on, we received an email with a Dropbox link from an anonymous Yahoo account. We looked and to our surprise, it was several dozen MP3s with the entire show, end-to-end, which allowed us to verify we were capturing the entire interview. We copied the MP3s and quickly emailed back to ask a couple of clarifying questions. We were not-so-politely told to leave them alone.
In the end they realized they had 35 different interviews from May of 1993 through August of 2015. They transcribed everything and then posted the transcripts to their own site, and the audio to both YouTube and Soundcloud.
It has recently come to our attention that you operate a website accessible at www.factba.se (the ?Site?), on which there is posted over fifteen hours of recordings of Howard Stern Materials, as well as corresponding transcripts of such recordings. Many of such recordings are also accessible through CantyMedia?s YouTube page and Factbase?s SoundCloud page. As a legal matter, your unauthorized distribution of the Howard Stern Materials (including the corresponding transcripts) through these platforms violates the copyrights therein, and constitutes copyright infringement. Publication and distribution of infringing materials via YouTube and SoundCloud also violates those sites? policies.
In light of the above, we must insist that you: (a) immediately remove or disable access to all Howard Stern recordings and transcripts, and any other SiriusXM programming, on the Site, YouTube, SoundCloud, or any other websites, databases, or computer/mobile applications through which you are providing unauthorized access to the Howard Stern Materials or SiriusXM programming; (b) refrain from uploading, broadcasting and/or distributing any Sirius XM programming (including the Howard Stern Materials) in the future; and (c) provide us with written insurances confirming that you have done as requested.
In view of the importance of this matter, we have contacted YouTube and SoundCloud contemporaneous with the sending of this letter, to request that they remove the unauthorized recordings uploaded to your accounts pursuant to their obligations under the Digital Millennium Copyright Act (?DMCA?). Please be aware that these platforms may take adverse actions, such as terminating a user?s accounts, in response to a DMCA notice identifying multiple infringements. It is our understanding that such actions may be avoided by an account holder?s direct and expeditious removal of all such unauthorized recordings.
The Ars piece quotes a bunch of lawyers discussing whether it is fair use — with many leaning towards it being fair use, but some arguing it’s not that clear cut. I would argue that the newsworthy nature of it and the purpose of the archive push it pretty strongly towards being transformative (the use is quite different than the initial use). And, similarly, the fact that this clearly wouldn’t “harm” the market for the Howard Stern show, would weight heavily towards fair use — though, with so many fair use cases, you never know how a judge will see things (and you could make arguments against fair use if you tried hard enough).
Factba.se also says that it’s trying to resolve this amicably with Sirius XM and to properly “preserve the record.” And that raises some other questions. Copyright law has Section 108, for libraries and archives to preserve important works in a manner for research purposes that are open to the public. Among the rules under 108 is that the archive must determine “after reasonable investigation” that a copy of the work cannot be obtained at a fair price — which appears to be the case here. However, there are also some other hoops to jump through, including posting a specific notice with the archive to qualify (which seems unlikely to have happened). Furthermore, it’s unlikely that a for-profit entity can avail itself of Section 108’s protections. There is one part of 108 — put in place specifically for Vanderbilt’s TV news archive, that make it easier to archive “audiovisual news programs” but again, is Howard Stern’s show a “news program?” That would be a fun question to test in court.
There’s a separate, lurking, question here about whether or not a radio interview is actually covered by copyright in the first place — but that’s a potentially muddy swamp that probably isn’t worth diving into right now. I’ll just say that while many people assume that audio interviews are covered by copyright, there’s a compelling argument that the actual text of copyright law does not agree. I’m not convinced a court would actually buy that argument, but it’s one argument that could be made. After all, Sirius XM isn’t adding the “creativity” to any of Trump’s comments or statements. He’s making them up as he speaks.
The larger point, though, is that there’s tremendous news value and public interest in these archives, and we’re in yet another situation where copyright law is being used to censor information that is in the public interest. And that should concern everyone.