Don't Celebrate Copyright Being Used For Political Censorship Just Because You Don't Like The President

from the still-abusive dept

You may have heard the story recently of how the band REM got a video in a tweet taken down after Donald Trump had retweeted the video. CNBC has the details:

A satirical video using music from rock band R.E.M., which was shared by the Twitter account of President Donald Trump, has been removed from the social media site after a complaint by the publisher of the band’s songs.

A lawyer for Universal Music Publishing Group had reached out to Twitter on Friday asking that the video — which was first posted by another user — be taken down from the platform, a source familiar with the situation told CNBC.

The clip, which runs more than two minutes in length, plays audio from R.E.M.’s early-’90s hit single “Everybody Hurts” over excerpts from Trump’s Feb. 5 State of the Union address.

This started to spread around on Twitter, and I saw lots of people who hate the President celebrating over this victory in yanking the stupid video (and it was stupid) from his tweet. REM and bassist Mike Mills celebrated:

But, even if you absolutely loathe the President and his silly partisan gloating, you should be very concerned about this. And, I know, that some people are already screaming (because they did it already on Twitter when I first brought this up) that REM has “every right” to control its work how it wants to and that includes not letting the President use their music. That’s mostly true. And the video may, indeed, have been infringing.

But the problem is that this wasn’t used for any of the reasons that copyright specifically enables. It was flat out used because the band didn’t like the politics or the political message. In other words, it was using the law to stifle political speech. That was the entire intent behind the move (REM and Universal have let other similar clips remain up) — which REM and Mills are basically admitting with their tweets. They used copyright to censor a political message because they disagree with it. Copyright (in the US) isn’t supposed to be used that way. Other countries have something called “moral rights,” which would make such a takedown legitimate under moral reasons, but in the US copyright is explicitly an economic right, and not a moral one. And thus, any use of copyright — even if otherwise legit — is a form of copyfraud, in which the power of copyright is used not because of economic concerns, but directly to censor speech.

So even if you love REM and hate the President, if you believe in free speech, you should certainly be concerned about the use of copyright as a tool for outright censorship of speech someone didn’t like.

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Companies: twitter, universal music

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Comments on “Don't Celebrate Copyright Being Used For Political Censorship Just Because You Don't Like The President”

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42 Comments
Thad (profile) says:

Re: Re:

Whatever happened to "satire, parody, and commentary are protected as fair use" anyway?

That doesn’t mean that using a copyrighted song as background music in a parody is noninfringing; it means writing a parody of a song is noninfringing.

"Weird Al" Yankovic publishing a song parody: fair use. (He always gets permission first anyway, but that’s politeness, not legal obligation.)

The Onion using Born to Run in its entirety as a background track in an Onion News Network video: probably not fair use.

Mike notes, in the article, "that the video may, indeed, have been infringing." He’s not arguing that the takedown request was illegal; he’s arguing that it was unethical because of the motivation behind it.

MathFox says:

Re: Re: Re:

If I understand you correctly you say I would not be allowed to comment on the recent shutdown in the US by making a mash-up of Trump publicly demanding money for his wall followed by citing Abba:

Money, money, money, should be funny in a rich man’s world!

Is it a desired result of copyright laws to forbid such commentary?

MathFox says:

Re: Re: Re:2 Re:

A brief clip of the song, for example just the "Money, money, money, should be funny in a rich man’s world!" part, would probably also qualify as fair use.

Using the entire song would most likely not be.

Using only one song would not be fun… It’s far more artistic to medley-mix fragments of multiple songs with a sequence of Trump-utterances. 🙂

Bruce C. says:

Re: Re: Re:

Ascribing motivation is a tricky thing, even with the evidence of the hashtags in the tweet by Mills.

That said, there’s quite a history of politicians of all stripes getting zinged by bands and songwriters even before Twitter became a thing. Typically the bands are not politics-neutral when they ask pols to stop using their music, but the difference between a Twitter take-down and a traditional C&D letter to stop a campaign from using their music at their campaign rallies is one of methods, not a difference in outcome. From my POV a campaign rally is just as much protected political speech in a derivative presentation as a video mashup online.

Thad (profile) says:

Re: Re: Re: Re:

the difference between a Twitter take-down and a traditional C&D letter to stop a campaign from using their music at their campaign rallies is one of methods, not a difference in outcome.

There’s also a difference in legal heft. As Techdirt has noted many times in the past, usually artists requesting that politicians not use their songs at rallies don’t have the legal leverage to make that request, because public performance rights are paid for through blanket licensing. (However, it’s generally bad publicity to use a song an artist doesn’t want you to use.)

Anonymous Coward says:

So even if you love REM and hate the President, if you believe in free speech, you should certainly be concerned about the use of copyright as a tool for outright censorship of speech someone didn’t like.

Opinions of bands and politicians aside, if they had said they took down the tweets because use of their content was unlicensed then it would have been fine and we would not be reading this article.

The reason isn’t important. This was done within the current law and there’s nothing wrong with that. We can argue/discuss exactly how wrong copyright law is (and it is) there is nothing presently wrong with the discussed actions having been taken under the law.

If you want to protect your speech from being censored due to copyright, don’t include unlicensed material in your speech. I fail to see how ignoring this wisdom and reaping the consequences lay at the feet of the complainants.

MathFox says:

Re: Fair Use?

If you want to protect your speech from being censored due to copyright, don’t include unlicensed material in your speech. I fail to see how ignoring this wisdom and reaping the consequences lay at the feet of the complainants.

There is something called "Fair Use" in US law (copyright law in other countries has similar exceptions) that allow the use of copyrighted materials for commentary. You totally seem to neglect this concept.

Thad (profile) says:

Re: Re: Fair Use?

That’s because that’s not what "use for commentary" means.

Use of a song "for criticism or commentary" means criticism or commentary of the song. It doesn’t mean that using a song as part of a video criticizing or commenting on some unrelated topic is fair use.

A reviewer excerpting Everybody Hurts to comment on the song would be fair use under the "criticism and commentary" test. Including the song in a video about something else is not.

Stephen T. Stone (profile) says:

Re: Re: Re: Fair Use?

It doesn’t mean that using a song as part of a video criticizing or commenting on some unrelated topic is fair use.

I would argue otherwise, so long as the usage was done in a manner meant to either bolster a point or act as a comedic punchline to a given point. To wit: In a video inspired by the “Lessons Animation Taught Us” series on YouTube, Select Screen’s “Mr. Freeze and Why We Love Sympathetic Villains” features a small bit¹ on the tone of the Batman: The Animated Series episode “Heart of Ice” that uses one bit of music from The Price is Right as a punchline to his point. Anyone who would attempt to argue that said usage is not Fair Use would have an uphill climb in convincing me otherwise.

¹ — The bit in question, although I do recommend watching the video as a whole: https://youtu.be/0V956de8QyM?t=452

Thad (profile) says:

Re: Re: Re:4 Re:

Sorry, haven’t had a chance to watch it so I can’t speak to specifics. I’m not entirely sure how copyright pertains to a short game show music cue, though if it’s short enough then I’d suspect de minimis protection applies and no fair use analysis is required.

Failing that, the "purpose and character" and "effect of use on potential market" tests certainly seem to break in favor of fair use. ("Criticism and commentary" is a subset of "purpose and character", but I still don’t think it applies here.)

Anonymous Coward says:

Re: Re: Re: Fair Use?

If it falls within the bounds of certain exceptions (fair use, parody/satire, mechanical licensing, etc), you get to do it whether or not the copyright owner likes it.
If it does not fall within the bounds of these exceptions, you get to do it if and only if the copyright owner lets you do it. The fact that the copyright owner is more likely to let you do it if he approves of your message is simply a fact of life.

Anonymous Coward says:

Re: Re: Fair Use?

He totally neglects this concept because it doesn’t apply here. This isn’t using copyrighted materials for commentary, it’s using a copyrighted work as an emotional backdrop to commentary. If the song was removed and, say, "born to run" played in its place, what would have changed in the commentary?

So on the one hand, the use was likely infringing as it was just dropped in as a backing track without permission.

On the other hand, THIS wasn’t the reason the complaint was issued: the complaint was issued because REM doesn’t want to be associated with stupid political commentary that they are vehemently opposed to. We know this because band members said so.

In summary:

Mike: Don’t misuse tools of speech just because you can; it sets a bad precedent no matter how morally right it may be.

AC: Don’t do stupid things with other people’s IP and expect the law to be ignored.

MathFox: Hey! What about free speech?

Anonymous Coward says:

Can I cheer this if I like the president and enjoy seeing copyright abused in a way likely to draw a lot of attention? If anything can promote reforms to prevent these abuses, it will be very public use of copyright for situations like this one, where it is very clear that the use is abusive, rather than in service of the stated goals of copyright.

TFG says:

Re: Re:

You can cheer what you like – I disagree with you on the president, but I agree with you on curtailing copyright abuse.

Getting into the semantics of things, "cheering this" would have the basic connotation and understanding of "supporting the actions of REM in this case" – if your aim is to curtail abuse of copyright, it be more appropriate to simply say "I am glad this occurred as it draws a light on the abuses of the copyright system" whiiiiiich I wouldn’t call "cheering this" but rather "cheering awareness of the abuse."

Anonymous Coward says:

Back to the Main Point of the Article

Back when I was young math teacher, a colleague shared with me her mnemonic for teaching high school students how the signs (positive/negative) of products work. Her mnemonic was:

1) when good things happen to good people, that’s good…
(positive times positive is positive);

2) when good things happen to bad people, that’s bad…
(positive times negative is negative);

3) when bad things happen to good people, that’s bad…
(negative times positive is negative);

4) when bad things happen to bad people, that’s good…
(negative times negative is positive).

Cute, seemingly innoccuous, and easy for impressionable youth to internalize. Is it really any wonder that people misbehave and react to the misbehavior of others as they do?

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