YouTube Apparently Unsure If Shakespeare Is In The Public Domain
from the to-be-or-not-to-be-in-the-public-domain dept
One of the darker threads of Walled Culture the book (free digital versions available) is how complex copyright enforcement systems can be abused, for example by sending Digital Millennium Copyright Act (DMCA) takedown requests for material that is perfectly legal. A recent post on the Public Citizen blog offers an extreme example of this blight. Here’s the summary of what happened:
When Julien Coallier sent a series of DMCA takedown requests contending that various print publications of Shakespeare’s plays, and YouTube videos of performances of those plays, infringed his purported copyright in those works, it should have been treated as a bad joke. After all, Shakespeare’s plays were published more than 400 years ago, and it is hard to imagine the[m] as being anything but public domain. Yet not only did YouTube take the demands seriously, it blew off those takedown targets who filed counter-notifications and who asserted their right to publish plainly public domain material.
There are several issues here. One concerns the cavalier manner in which YouTube dealt with this situation – sadly, by no means an isolated incident. As the Public Citizen post explains, one of the video takedown victims was John Underwood, who had posted on YouTube videos of Shakespeare performances by a local non-profit group called Shakespeare by the Sea. When he received notice that two of his videos had been removed because a takedown notice sent by Coallier, Underwood followed the DMCA rules, and sent a counter-notice. He not unnaturally assumed that would resolve such a clear-cut case, not least because Shakespeare by the Seas assured him that it had not relied on Coallier’s claimed version of the Shakespeare plays for their performances. But YouTube ignored the official DMCA procedures and refused to acknowledge Underwood’s counter-notice, or even forward it to Coallier. This was not a one-off: other targets of Coallier’s take-down had also had their counter-notices ignored by YouTube. So Underwood contacted Coallier directly:
In multiple emails, Coallier declined to explain why he thought Underwood’s videos copied Coallier’s “translations” of Shakespeare’s plays, despite being asked repeatedly. Instead, Coallier told them that Shakespeare is not in the public domain because he had been able to register a copyright in so-called English-language “translations” of every one of Shakespeare’s plays. Coallier also claimed that he can charge a five percent royalty on every performance.
This brings us to the second issue: how could the US Copyright Office grant Coallier’s copyright registration? The author of the Public Citizen post, Paul Levy, went to the trouble of obtaining copies of the copyright registration, and found that only two of Coallier’s “translations” of Shakespeare’s plays had been submitted:
Apparently, it was on on the strength of these two “translations” that the Copyright Office granted a registration of Coallier’s copyright in three dozen “translated” plays – tragedies, comedies and histories – without receiving copies of any of the other works in which the Copyright Office was potentially granting a monopoly.
As to what Coallier’s translation amounted to, Levy sent a copy of the Coallier’s work to a Shakespeare expert, Jan Powell:
It was Powell’s opinion that the translation was such a mess that no reputable Shakespeare company would perform a script based on Coallier’s work. In addition to the fact that Coallier’s scripts did away with the iambic pentameter that is the glory of Shakespeare’s plays, she found his “translation” to be a garbled mess.
Following the intervention of Public Citizen, YouTube suddenly started to respond. It accepted Underwood’s counternotice and forwarded it to Coallier, who did not sue Underwood for alleged infringement, as he could have done. Not content with seeing off this abuse of the DMCA takedown system, Public Citizen is going further:
This week, in concert with the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School, we have sued Coallier seeking a declaratory judgment of non-infringement, and seeking relief for a DMCA wrongful takedown. Corey Donaldson of the Los Angeles area firm of Ferguson Case Orr Paterson is co-counsel in the case. In addition to securing relief for Underwood, we hope to spur the district court to invoke 17 U.S.C. § 411(b) to suggest to the Copyright Office that it reconsider its registration of Coallier’s copyright.
That’s good news, but it is utterly absurd that so much effort was required to deal with a situation that should never have arisen. The copyright in these “translations” of Shakespeare should never have been granted, not least because only two of the plays were submitted, and yet registration was granted for all the rest of them sight unseen. And YouTube should have followed the rules of the DMCA, which is in any case already strongly biased in favor of those alleging copyright infringement. As Levy concludes:
We also hope that YouTube will consider whether DMCA takedown notices should have to pass the laugh test before they are effected, and consider also how it responds to DMCA counter-notifications. Although I am grateful to the YouTube lawyers who responded so promptly to my inquiries, the system is not working as it should. Many YouTube content creators are hobbyists and amateurs, and do not have the same ability to reach a YouTube lawyer. Abuse of the DMCA for cheap censorship by bad actors who would never file a copyright lawsuit over their claims has long been noted (for example, this post from EFF, which sent Underwood to me for help). It should not take a request from a lawyer to get YouTube to follow the DMCA and counternotices seriously.
This extraordinary saga of takedown notices for performances of Shakespeare show that 27 years after it was passed, the DMCA is still not fit for purpose. The companies like Google that are tasked with implementing it often do so in the most desultory way. There is an underlying assumption that claimed infringements are valid, an injustice compound by an arrogant indifference to the rights of ordinary citizens who find themselves caught up in a complex copyright system that is stacked against them.
Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.
Filed Under: copyright, counter notice, dmca, dmca takedowns, john underwood, julien coallier, public domain, shakespeare, us copyright office
Companies: youtube
Comments on “YouTube Apparently Unsure If Shakespeare Is In The Public Domain”
The Walled Culture RSS feed is hidden behind bot detection / DDoS protection, making it unusable.
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I and other Techdirt commenters have been complaining for years about that, particularly every time that book is claimed to be “available”. Glyn’s shown no interest in fixing it, but has occasionally posted a link to a mirror (which doesn’t help if you want RSS).
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Interesting. But a book isn’t a feed. wtaf even?
Why would one even need "English-language" translations of Shakespeare?
We are talking about Early Modern English here which essentially is the same as current-day language with minor smatterings of now-obsolete words, word uses, and grammar (third-person word forms, the still extant second-person singular nowadays substituted with the polite plural form and a few odd bits and ends). Stuff you can easily enough deduce from the context.
To put that in perspective, Homer in his ancient Aeolic/Ionic island dialect (from about the 8th century BC) was still part of the school curriculum in Greece at least several decades ago.
Re: This is feature (for good or ill) of watching performances
I noticed that yes, there’s an orientation process, usually between fifteen minutes to the first hour of the play where my brain adjusts to the language.
I’m a smartypants, but in school I sucked at learning conversational languages, but am good at deriving the meaning of words when they can be intuited from Greek or Latin roots. Anecdotal experiences are similar that in a short amount of time watching a performance friends and family also so adapt.
Still, I am all for accessibility regarding all media.
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You’re definitely taking a minority position here. Shakespeare tends to be something students first encounter in high school, with no real guidance about the language used. For example, did you get the various double-entendres of “nothing” in the title “Much Ado About Nothing”?
An entire industry (“Coles Notes”, known as “CliffsNotes” in the USA, and the various copycats) exists to explain such things to students. One can hardly find more than 10 or 20 words that read like modern English. I can figure it out now that I’m older; in high school, it was about as readable as the texts in my foreign-language class. Had they actually treated this as a foreign language—that is, made any effort to teach the language—I think it would’ve been easier.
It kind of ruins the plays, too. We were told that a Shakespeare “comedy” just means the protagonists don’t die. But, no, they were actually meant to make people laugh, which I don’t remember ever happening in school.
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I have to say, I found it no more difficult to comprehend shakespeare when learning The Tempest, Romeo and Juliet, Hamlet, and Macbeth in school, than I did translating between the dialect used by BBC presenters on the telly and that of actual real people in the northeast of England where I grew up. The grammatical and vocabulary differences were more or less equal.
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Sure, there are always gonna be some people that get it quickly, maybe even love it. But expecting the rest to just pick it up without any instruction seems like lazy “teaching” at best. Hence the guides.
Anyway, a lot of people in North America don’t have much exposure to dialects. Most people in film and television speak the same way (“General American English”). If a character has a strong accent, it’s generally expected that viewers will not fully understand it; often, that’s the joke.
And YouTube’s lazy, fraud-friendly approach gives license to other companies to behave similarly. Music distributors are godawful to deal with The dump your music into content recognition systems and if you get flagged they immediately treat you like a pirate. Never mind that contentID and its brethren aren’t very accurate and false matches are common, as my SoundCloud resolution history can attest.
This is why I’m a bit conflicted on AI training: On the one hand, why should Altman be exempt from rules everyone else has to follow, but on the other hand it significantly undermines copyright and IP as a concept.
I hope they get this sorted out before 2073, when works from 1977 enter the public domain. That’s only 48 years away, and we’ve already seen things getting worse instead of better over the past 27 years.
I’m sure Shakespeare wouldn’t have written play if he knew that hundreds of years later everyone would be able to upload his plays to YouTube without paying, and with these weak copyright protection, he isn’t going to write any new plays.
I’m sure that TechDirt would not exist if hundreds of years from now, everyone would be able to upload their multi sensory interpretation of the post to the intergalactic web.
And I could claim a copyright in a modern translation of any of Shakespeare’s plays into a foreign language, but that wouldn’t change the Public Domain status of Measure for Measure (for example), Coallier, you twit. Now give it up.
Re: Maybe you shouldn't use the modern translation...
Guess the modern translations are still under copyright, so you probably shouldn’t use the new versions. Instead, getting the old one is enough. Obviously publishers flood the market with the new copy, hoping that the old one is nowhere to be found when the copyright expires…
Good trick. Keep copyright for the material until end of the universe. Extend the copyright duration with new submissions to copyright office. The copyright duration seemed to be a little short already, given that recouping your invested money from copyright creation seems difficult at the moment, given that I’ve received just $6 for 10 years of work, it just means that getting your money back could take longer than 70 years reserved for copyright duration.