ADM Says Video Mocking Them Is Copyright Infringement; Abuses Copyright Law To Stifle Free Speech

from the not-cool dept

So we just had that post about how a TV station in Boston was abusing copyright law to take down slightly embarrassing video of a weatherman it employs. In the post, I noted that while this was just over a potentially off-color joke, there were important free speech implications to it. Law professor Peter Friedman quickly points us to a more serious case of a giant company stifling criticism through DMCA takedown. Apparently, food conglomerate, Archers Daniel Midland (famous, among other things, for getting caught in a massive blatant price-fixing scheme that made pretty much all of your food a lot more expensive than it needed to be), doesn't believe criticism of its CEO should be allowed. Friedman had posted a link to a video that took a bland, boring video of ADM's CEO droning on about "agriculture's role in the growing economy," and edited it to "make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets." Honestly, the original video looks just like the ridiculous corporate video that is made in the movie Michael Clayton, about a company that is clearly supposed to be ADM.

Friedman points out how this is a clear abuse of copyright law and a violation of free speech:
This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution's guarantee of free speech, all you need is to think of a situation like this -- one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it's unconstitutional censorship!
The courts have tried to reconcile the question of how copyright law can possibly survive a First Amendment challenge (after all, the First Amendment says Congress shall make no law that interferes with freedom of speech... and yet that's exactly what copyright does) by saying that a robust fair use exception is the key to making it okay. But when fair use is trampled on repeatedly, it makes you wonder how anyone can still claim that copyright isn't a massive abuse of the First Amendment.


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  1.  
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    Justyn, Feb 5th, 2010 @ 3:58am

    Minor correction

    I think you mean the movie Michael Clayton.
    Michael Crichton was a famous author.

     

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    drewmerc (profile), Feb 5th, 2010 @ 4:01am

    does this video show him sat in a toilet getting eaten by a dinosaur

     

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    Anonymous Coward, Feb 5th, 2010 @ 5:02am

    Apparently, Patricia A. Woertz went to the Hugo Chavez School of Open Media. /s

     

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    ElSteevo (profile), Feb 5th, 2010 @ 5:07am

    These guys are idiots.

    Professor Friedman has it right.

    I think notices like this should be ignored, and if ADM starts a lawsuit their counsel should be sanctioned.

    Jonathan Swift is spinning in his grave right now.

     

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    sysadmn (profile), Feb 5th, 2010 @ 5:13am

    Double Edge Sword

    The Bill of Rights also guarantees "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". Should the government be allowed to routinely seize something for public use just because the item is intangible? Arguably the lack of copyright would lead to just that.

     

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    LumpyDog (profile), Feb 5th, 2010 @ 5:19am

    Re:

    Well played.

     

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    LumpyDog (profile), Feb 5th, 2010 @ 5:20am

    Re:

    Well played.

     

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    Anonymous Coward, Feb 5th, 2010 @ 5:25am

    Re: Double Edge Sword

    wat?

     

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    BearGriz72 (profile), Feb 5th, 2010 @ 5:32am

    Re: Double Edge Sword

    Huh? How on earth does somebody editing a (Public Relations? / Training?) video to poke fun at and criticize a corporation and its anti-consumer policies “unreasonable searches and seizures” by the government? I think a stronger case could be made for the DCMA takedown process to be a 4th amendment violation than a parody video.

     

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  10.  
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    Anonymous Coward, Feb 5th, 2010 @ 6:14am

    Too Close To Home

    Maybe the video edit was more accurate in it's depiction of ADM's business models than the PR babble of the original.

     

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    Michial Thompson, Feb 5th, 2010 @ 6:30am

    Did a court order this to be taken down?

    If a court did not order this video to be taken down, then the final say is not over. So how can you claim that the "LAW" allows the abuses when the "LAW" hasn't been given the chance to run it's full course?

     

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    John Fenderson (profile), Feb 5th, 2010 @ 6:41am

    Re: Did a court order this to be taken down?

    Because the law, in the form of the DMCA, allows things to be taken down without a court ruling. And that's what happened here.

     

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    sysadmn (profile), Feb 5th, 2010 @ 6:47am

    Re: Re: Double Edge Sword

    I do not claim that this instance is a 4th amendment violation. I was responding to the "how copyright law can possibly survive a First Amendment challenge" point. The existence of fair use is not necessary to survive the challenge. The other amendments are not subordinate to the First.

    I would argue that the Copyright Clause is the source of the fair use doctrine: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I think it also strengthens the claim that not having any copyright at all is a "taking".

    I seriously doubt that the ruling could survive a challenge, since parody is a clearly recognized fair use. If they're using a substantial portion of the video, perhaps that might tip the scales in the plaintiff's favor.

     

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    Peter (profile), Feb 5th, 2010 @ 6:52am

    abuse of the law

    Michial -- you're right that the final say might not be in, but the mere fact ADM's takedown notice was complied with is a terrible abuse. It's one example of a well-known phenomenon called copyright overclaiming. If the person who posts the video doesn't challenge it because he or she doesn't know the procedure, doesn't know the strength of the reasons behind the counter-notice, or both, then the challenge won't happen and ADM will have accomplished what it wanted. And if ADM decides to sue? Who in his right mind would want to litigate against ADM? Not me -- I can't afford it, and I could represent myself. I don't run in circles of people who could afford it. The sheer economic weight of large corporations and the incredible expense of our judicial system means, inevitably, that the mere threat of litigation gets those corporations what they want regardless of whether a court would eventually rule against them in a case that was never brought (or abandoned or settled on terms favorable to the corporation before final judgment). If you want to explore the issue further, I've written this, which quotes from and links to an article by Judge Richard Posner and discusses the Stephanie Lenz case, a rare example of an individual able and willing to take on a large corporation (Universal Music). The Lenz case, by the way, is the source of the court ruling (post-dating the post the link below is to) that a company has to consider the merits of a fair use argument BEFORE sending a takedown notice. Unfortunately, to clarify a discussion yesterday, that decision, by a trial court, is only binding on courts in that federal district (the lowest level of the federal court system). It is something courts in other districts and circuits can cite and rely on, but those courts are not compelled to follow it. http://blogs.geniocity.com/friedman/2008/08/the-uses-and-abuses-of-the-differences-between-th e-law-on-the-books-and-the-law-in-action-with-a-particular-emphasis-on-copyright-overclaiming/ Fi nally, I can't find the video -- it doesn't seem as of now the original poster has filed a counter-notice, so it looks like ADM got exactly what it wanted even though it got it through a legal claim with no merit that quashes legitimate speech.

     

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    Brad Eleven, Feb 5th, 2010 @ 7:00am

    Parody & Satire are Protected Speech

    I'd go for one of these first, although it might water down the critical intent of the video.

     

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    Burgos, Feb 5th, 2010 @ 7:03am

    Tom Cruise?

    This thing reminds me of that Tom Cruise - Scientology propaganda video.

     

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    Peter (profile), Feb 5th, 2010 @ 7:04am

    satire, parody, and criticism

    Brad -- parody and satire are critical speech. They aren't separate categories subject to different fair use considerations than any other kind of speech. Parody is protected even though it appropriates almost all of the parodied work precisely because it is a commentary and criticism of that work.

     

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    senshikaze (profile), Feb 5th, 2010 @ 7:12am

    Re: Did a court order this to be taken down?

    I was under the impression that a DMCA notice required the removal of the offending document/video/song immediately, without a court order.

    yay, the "LAW"!

     

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    The Anti-Mike (profile), Feb 5th, 2010 @ 7:31am

    Re: satire, parody, and criticism

    Even parody has it's limits. If the video was done in such a manner that people viewing the video would not be aware of the parody, it might cross the line to slanderous or libelous speech. Example, if the video appears to be of the original person, and there is no way to know if the words are their words or not, it could be the equivalent of writing a newspaper story with quotes they never said. (and wasn't Mike all up about that about a week ago?)

    Parody does at some point require context, what Kevin Smith calls the "tee-hee", where we all understand that there is some humor in the comments or they are made in jest.

    Putting words in someone mouth without context, even if the words are correct, can be misleading. The old "idiot in a hurry" might understand the humor, and actually think this is what the person said.

    Without seeing the video, it is hard to draw conclusions. I would say that the poster not contesting the take down notice says a whole bunch about the content, however.

     

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  20.  
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    interval, Feb 5th, 2010 @ 7:36am

    Re: These guys are idiots.

    @EtSteeveo: "Professor Friedman has it right."

    Well, right and wrong. Abuse of copyright law? Sure. A free speech issue? No. Only governments can be accused of violation of the 2nd amendment. Simply doesn't apply to any other entity. I can't suppress your ability to say anything you like, short of slander, which would go to a civil court anyway. Same thing here.

     

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    interval, Feb 5th, 2010 @ 7:40am

    Re: Re: satire, parody, and criticism

    @TAM: "I would say that the poster not contesting the take down notice says a whole bunch about the content, however."

    No it doesn't at all. It only says something about the size of ADM's wallets. That's the ONLY real and reasonable conclusion you can draw. The video could contain praise of ADM, how do you know? Just because one side wields a larger sword doesn't make them the morally correct party. I swear TAM, sometime I think you like to simply see your comments up on the blog "just because."

     

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    ElSteevo (profile), Feb 5th, 2010 @ 8:07am

    Satire, Parody & Criticism

    Satire, Parody & Criticism: That was the point of my Jonathan Swift comment
    A Modest Proposal
    For Preventing The Children of Poor People in Ireland From Being Aburden to Their Parents or Country, and For Making Them Beneficial to The Public
    Jonathan Swift (1729)
    I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed is at a year old a most delicious, nourishing, and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricassee or a ragout.

     

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    ElSteevo (profile), Feb 5th, 2010 @ 8:11am

    Re: Re: These guys are idiots.

    The government enacted the law that allows private entities to curtail free speech (the mandatory nature of the take down notice), thus it is a government action.

     

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    btr1701 (profile), Feb 5th, 2010 @ 8:17am

    Re: Re: These guys are idiots.

    > A free speech issue? No. Only governments can
    > be accused of violation of the 2nd amendment.
    > Simply doesn't apply to any other entity.

    But in this case, the private corporation is using a branch of government to enforce its attempts to shut down speech-- namely, the DMCA and the courts that enforce it.

    If the corporation were just kicking and screaming and demanding the removal of the video, that's one thing, but when they turn to the government to use the legal system to enforce it, then it does become government action and the 1st Amendment is implicated.

     

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    gustav, Feb 5th, 2010 @ 8:27am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Minor correction

    very good, I agree

     

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    Peter (profile), Feb 5th, 2010 @ 8:54am

    parody

    If the dubbing of the ADM CEO's speech had been done so that one could really believe it was ADM's CEO, there might be an issue (though I don't know that it would be a copyright issue). But the fact is one could not have seen that video without knowing many of the words weren't her own. What she said was the kind of thing Voldemort would say in the privacy of his own lackeys if he were a CEO. And the fact that some words were synched to her lips (the original ones) and the others weren't was a giveaway too.

    El Steevo and btr: thanks for concisely and accurately kicking out of the game that frivolous argument that this is nothing but a private actor suppressing speech on its own. How ADM could do it in this case without hiding behind the purported authority of the courts is utterly beyond me.

     

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    The Anti-Mike (profile), Feb 5th, 2010 @ 9:34am

    Re: Re: Re: satire, parody, and criticism

    Think about it: If it was really a free speech issue, don't you think that groups like EFF or similar would be all over it? Wouldn't some lawyer looking for a meal ticket and 15 minutes in front of the Supreme Court be lining up to protect this obvious fair use parody?

    The silence is deafening, if you know what I mean.

     

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    BearGriz72 (profile), Feb 5th, 2010 @ 9:53am

    Re: Re: Re: Double Edge Sword

    Thank you for Clarifying.

     

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    Peter (profile), Feb 5th, 2010 @ 9:58am

    I don't know if EFF would be all over it. First, I'm the one who figured these events out. I've got about 100 readers per day. Mike is one of them. 2d, the EFF would come in on the side of the person who uploaded the video, I have no idea who that person is, I have no access to that info, and he or she probably thinks ADM is right or too strong to take on.

    Do you think the EFF monitors all the YouTube takedown notices? How do you think this stuff comes to the general public and the EFF's attention? It's thanks to people like Mike.

     

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    The Anti-Mike (profile), Feb 5th, 2010 @ 10:13am

    Re: parody

    Peter, before I answer, can I ask you to please use the "reply to this comment" link, as it sorts your comments into the right place in the threaded version of discussions? thanks.

    ADM likely used copyright because it is the most expedient way to get the video removed. Going to the courts and trying to get an injunction to get the video removed could lead to a protracted argument, court dates, depositions, and all sorts of other things that would take time and continue to, as they would say "injure their client's reputation" or something similar. ADM owns the video footage in question, and thus their DMCA notice is right and proper, although done for other reasons. DMCA pretty much requires prompt action by YouTube, everything else would take time.

    We may not like this sort of use of DMCA, but it is within the law to do so.

     

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    Steven (profile), Feb 5th, 2010 @ 10:17am

    Re: Re: Re: Double Edge Sword

    I'm sorry but without fair use copyright is in full conflict with free speech. How can I criticize something if I can't put my criticism in proper context?

    A lack of copyright is certainly not a taking, and I don't see how you could logically come to such a conclusion. You physically cannot take a copyright away from somebody, it's simply impossible (you may be able to take their only physical copy, but that is theft, not infringement).

    Copyright itself is a taking of the natural rights of society with the intent of providing overall benefit through the increased incentive to create works.

    The portion of source material used is not a consideration as long as what is used is for the parody purposes. Meaning even if the whole work was copied, but the whole work was used a parody, fair use still stands strong.

     

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    Anonymous Coward, Feb 5th, 2010 @ 10:47am

    Re: Re: These guys are idiots.

    >Only governments can be accused of violation of the 2nd amendment.

    And where, exactly, is there a gun involved in this?

     

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  33.  
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    Anonymous Coward, Feb 5th, 2010 @ 12:23pm

    Anti-Mike,

    Your effort to make a point betrays a misunderstanding about something fundamental to copyright. ADM might own a particular copy of the video that, if it were stolen, ADM would have a legal claim right to recover. So, for example, if someone broke into ADM's offices and stole a videotape or a cd-rom with the video, ADM could recover that videotape or cd-rom.

    But ADM does not "own" the video we're talking about in the sense that ADM can exert control over ANYTHING that is done with the digital information that the video consists of. ADM can only exert control over uses of the video that are copyright infringements or trademark infringements. Thus, for example, ADM could stop someone from using the video to exploit a market for the original work if that market had been created by the original work (copyright). And ADM could stop someone from using the video to fool people into thinking that the someone might really be ADM (trademark).

    But this is no such case. ADM posted the video online. Merely copying the video is not illegal. The redubbed video could not have been mistaken as something ADM had produced. Nor did it exploit any market ADM had in mind for the video when it produced the orignal video.

    And the fact that ADM's reputation might have been hurt by the redubbed video does not change anything. If mere harm to reputation could be enjoined, no one could create a parody, a negative review, a critique, or anything else of a negative nature (have you seen the web lately?) without being subjected to a lawsuit.

    That is precisely why this is a First Amendment issue. It's as if ADM had sent a takedown notice to Mike because something someone wrote on Mike's blog was critical of ADM.

    Harm to reputation would only be the foundation of a lawsuit directed at critical material or parody if the material were defamatory. But to be defamatory, the criticism has to be something people would take as true but was not true. Again, one could not see this video and think it was really ADM's CEO boasting proudly of awful things ADM had done.

    I have no doubt that ADM sent a takedown notice because the video reflected poorly on the company. But if ADM's lawyers had done anything to review the legitimacy of the redubbed video's presence on YouTube, they would have realized there was no legal basis for ADM's claim. Yet, because ADM can afford to litigate in a no-holds, scorched earth manner, and because there are so many people who so misunderstand what "property" is (I can copy and rework your digital video even if I can't steal and rework your car), baseless takedown notices like ADM's more often than not result in the copyright holder getting what it wanted.

    In short, if ADM went into court (with depositions and court dates and all that other legal stuff), ADM would lose.

     

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    Mike Masnick (profile), Feb 5th, 2010 @ 12:26pm

    Re: Minor correction

    I think you mean the movie Michael Clayton.
    Michael Crichton was a famous author


    Dah. Absolutely true. Don't know how I made that mistake. Fixed.

     

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  35.  
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    Matt (profile), Feb 5th, 2010 @ 12:38pm

    Re: Re: Re: Double Edge Sword

    This is a clever argument, but at least a little misguided. As an initial matter, it assumes that you have a right, or at least a property interest, in copyright regardless of Congressional action. The Constitution says the opposite: it says the power rests in _Congress_ to promote progress in this way, not that a right rests in the people to have it done.

    This is a signficant distinction. The Founders certainly did not believe in a natural or even a common law right in the author to copyright. That notion (which sprang out of a political debate in England around 1709,) had largely been debunked even in English law. American colonial printers aggressively reprinted British works that were still under British copyright, sometimes without attribution and almost uniformly without royalties to the author. The first US copyright law, passed in 1790, covered only books and maps created, printed, distributed, and registered in the US by a US citizen: sheet music would not be covered for another century, and recordings of music performances would wait until the 1970s. Foreign works were not covered until the mid 19th century.

    In other words, "not having any copyright at all" is the default state of American law for most works. Only recently has copyright been extended. So no natural or common law right exists top copyright. Moreover, it cannot be a taking for Congress to stop giving away something Congress has no obligation to give away, and nothing in Constitutional or common law requires Congress to provide a copyright.

    Incidentally, the argument that the IP clause is the source of fair use is interesting. If correct, it further weakens the holdings on this issue. After all, if the IP clause itself requires fair use, then the First Amendment must require _even more_ expressive rights. Note that the First Amendment is an amendment, adopted later in time to the original Constitution. That means that its mandate is not to be read _with_ the IP clause, but is to be read as _superseding_ the IP clause (this is the same procedure the Supreme Court uses with the 14th Amendment vis-a-vis the 11th) to the degree they conflict in any measure. If the IP clause includes limits on copyright (and I agree that it clearly does,) then the First Amendment acts as a further limit, that nothing Congress is empowered to do by the IP clause may in any respect abridge anyone's freedom of speech, or of the press.

     

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  36.  
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    Matt (profile), Feb 5th, 2010 @ 12:43pm

    Re: Re: These guys are idiots.

    The trouble is that the copyright law itself is facially invalid as violative of the First Amendment, even without government application. The "state action" requirement is no defense to a charge that the state has unconstitutionally created a condition whereby private actors can do what the state could not.

    Because copyright is often contentious, a metaphor may help. Let's say Congress enacted a law that said private individuals may shoot and kill anyone who speaks out against the current government, without repercussion, and that this law preempts any state law to the contrary. Such a law would clearly be facially unconstitutional because (among other things) it violates the First Amendment - the government would be creating a condition in which people could not speak. Admittedly, the government would not be applying the law in any case - it would not be doing the shooting - but it would have created a situation in which the shooting would occur.

    So too here. Congress has created a condition in which speech is obviously and demonstrably stifled by giving private actors the ability to preemptively cut off speech based on its content and origin. Under the First Amendment, that is not a permissible exercise of Congress's power.

     

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  37.  
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    Matt (profile), Feb 5th, 2010 @ 12:56pm

    Re: Re: parody

    You are absolutely correct, except the bit about it being within the law to use the DMCA to require takedown of a transformative, parodic fair use. Assuming this work was as it has been described, it was not a violation of copyright because prohibition of this work was not among the rights granted to the copyright holder. The DMCA permits takedown of infringements. This wasn't one.

    But I agree that the DMCA permits and even mandates a knee-jerk reaction whereas injunctive relief demands some process and at least the application of the judge's reason to the question of likelihood of success. And I agree that that is an excellent reason for a company that is unlikely to face litigation for doing so, to overreach. That does not for a moment make its conduct legal. As I'm sure you would agree, the fact that people get away with illegal conduct does not legitimize it.

     

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    btr1701 (profile), Feb 5th, 2010 @ 2:23pm

    Re: Re: parody

    > We may not like this sort of use of DMCA, but it is within the law to do so.

    Not really. The DMCA only legally allows the takedown of copyright violations. Since parody is defined under law as not infringing and therefore not a violation, using the DMCA to suppress a parody is an abuse of the DMCA.

     

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    Michial Thompson, Feb 5th, 2010 @ 2:32pm

    Re: abuse of the law

    Peter;

    Yet again, you cannot blame the LAW for this. The courts are set up for a reason, and they do allow you to represent yourself. IF you cannot afford the attorney fees and feel your in the right, you can always stand up for what you believe.

    The DCMA was put in place BECAUSE the court systems take so long to go through, the DCMA allows at least a cursory approach to limit losses to Copyright owners by those that chose to steel. There are processes for countering the DCMA, and the person has the right to counter it if they chose.

     

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    John Fenderson (profile), Feb 5th, 2010 @ 4:04pm

    Re: Re: abuse of the law

    And how can you not blame the law for this?

    "The DCMA was put in place BECAUSE the court systems take so long to go through, the DCMA allows at least a cursory approach to limit losses to Copyright owners by those that chose to steel."

    The DMCA also allows entities to force content to be taken down when there is clearly no cause to do so. Yes, there is technically a mechanism to counter this, but the mechanism is very weak and ineffective. The effect is that the law allows abuse and the repression of free speech rights.

    As far as defending yourself goes, you are being either disingenuous or naive. If you cannot afford representation and court fees, not to mention having to take time off work, then you have no recourse through the law. The law, in practice, is only for those who can afford it.

     

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    John Fenderson (profile), Feb 5th, 2010 @ 4:06pm

    Re: Re: These guys are idiots.

    "I can't suppress your ability to say anything you like, short of slander, which would go to a civil court anyway."

    With the DMCA, online, you certainly can.

    Free speech issues are not solely embodied by the second amendment. Yes, that's the sole law, but it is inadequate and the issue of free speech itself is larger than the implementation in the Constitution.

     

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    John Fenderson (profile), Feb 5th, 2010 @ 4:10pm

    Re: Re: Re: Re: satire, parody, and criticism

    Not necessarily. Groups like the EFF and such choose their cases very carefully, and frequently pass on cases that could be won. They have to -- challenging these things is very expensive (not lucrative, as you imply), and they aren't rolling in the bucks. They have to spend wisely, and try to select things that can set precedents.

     

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    Anonymous Coward, Feb 5th, 2010 @ 5:57pm

    Re: Re: Re: These guys are idiots.

    It's surprising how many people choose to overlook this fact.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Don't be silly, Feb 5th, 2010 @ 6:07pm

    Re: Re: abuse of the law

    The story of David vs Goliath is presumably fiction. Let's not assume that it can actually happen.

    btw, your spelling sucks

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Feb 5th, 2010 @ 6:17pm

    Re: Re: satire, parody, and criticism

    "Even parody has it's limits"

    - If I do not like it, then it should be limited

    "If the video was done in such a manner that people viewing the video would not be aware of the parody,"

    - Lowest common denominator should be the rule of thumb?

     

    reply to this | link to this | view in thread ]

  46.  
    icon
    The Anti-Mike (profile), Feb 6th, 2010 @ 1:49pm

    Re:

    I am sorry, but I have to disagree with you.

    ADM owns the video, and all the rights that go with it. The only exceptions would be the standard run of fair use items (which are still really a defense, essentially admitting violation "but....").

    ADM posted the video online. Merely copying the video is not illegal.

    For your personal consumption, yes. For use as part of a news story, yes. To use in other ways, well, now it depends.

    The redubbed video could not have been mistaken as something ADM had produced. Nor did it exploit any market ADM had in mind for the video when it produced the orignal video.

    You see, that is where you hit a problem. First, we don't have the dubbed video to make that distinction. However, I can say from looking at what the content was of the dubbed message, it's intent was to exactly mimic the original speaker, and to create confusion. There was no "tee-hee" as Kevin Smith would call it.

    It's Mike's old "moron in a hurry" thing. If the average person, without knowing the details, might be mislead by the dubbed video, then it is likely not a parody.

    I have no doubt that ADM sent a takedown notice because the video reflected poorly on the company.

    Actually, I suspect they used DMCA because it was expedient to stop what would appear to be a misleading and slanderous video from making the rounds. Humor is humor, but putting hateful and nasty words into someone else mouth and making it like they said them isn't funny, it is mean, nasty, and slanderous.

    I would say the person who posted the video (who is probably working very hard to stay anonymous) will be lucky if they don't get a very fat legal spike up their butts.

    So your whole post is entertaining, but I think you start from the wrong point. It is difficult to see the parody in any of this, and yes, ADM owns the video and can control much of what happens with it.

     

    reply to this | link to this | view in thread ]

  47.  
    icon
    The Anti-Mike (profile), Feb 6th, 2010 @ 1:51pm

    Re: Re: Re: parody

    If it was a parody, which I truly doubt. I more looks like an attempt to defame a person, and put words in their mouth. The speech is effectively slanderous, and is likely to create confusion amongst people who would see it.

    I am not defending ADM (I think they are aggressive jerks in many ways) but this is not the method to get back at them. As I said in another post:

    "I would say the person who posted the video (who is probably working very hard to stay anonymous) will be lucky if they don't get a very fat legal spike up their butts."

     

    reply to this | link to this | view in thread ]

  48.  
    icon
    Mike Masnick (profile), Feb 6th, 2010 @ 7:24pm

    Re: Re:

    Actually, I suspect they used DMCA because it was expedient to stop what would appear to be a misleading and slanderous video from making the rounds.

    That's illegal. The DMCA is to be used solely for copyright infringement claims. Using it because you don't like something or even if you believe it is defamatory is not a reason that you are allowed to make a DMCA claim.

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    RD, Feb 7th, 2010 @ 10:18am

    Re: Re: Re:

    "Actually, I suspect they used DMCA because it was expedient to stop what would appear to be a misleading and slanderous video from making the rounds."

    "That's illegal. The DMCA is to be used solely for copyright infringement claims. Using it because you don't like something or even if you believe it is defamatory is not a reason that you are allowed to make a DMCA claim."

    Bah! Legal-schmegal. TAM doesnt care about the law (or truth, or accuracy, or reason...) he only cares about GETTING PEOPLE. If it takes breaking the law to do so, so be it! But ONLY for his corporate butt-buddies, mind you. Its DIFFERENT if you or I chose that path.

    Big Corporate Butt Masters DMCA takedown: JUSTIFIED! No matter what, in every case

    Little Guy/Private Citizen fighting back against DMCA: FUCK YOU serf, you will suck the teat of Big Corp and LIKE IT! We will TELL you what is right and wrong, and you will ABIDE!

    This is what Traitor Against Mankind thinks.

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    btr1701 (profile), Feb 8th, 2010 @ 7:57am

    Re: Re: Re: Re: parody

    > If it was a parody, which I truly doubt. I more looks like an
    > attempt to defame a person, and put words in their mouth.

    The courts give wide latitude and great deference to the 1st Amendment when it comes to parody. Basically they err on the side of parody. Look up Hustler Magazine vs. Falwell and you'll see both a prime example of that as well as the controlling law on the matter. Below is a brief summary of the case, which involved Rev. Jerry Falwell suing Hustler Magazine and Larry Flynt for libel. Hustler's (successful) defense was parody. There's no question that if Hustler's ad was protected parody, as debased as it was, then this ADM ad surely would be covered by the same standard.


    Hustler Magazine vs. Jerry Falwell, 485 U.S. 46 (1988)

    The satire at issue was a takeoff of an advertising campaign for Campari, an Italian apéritif. The real ads were tongue-in-cheek interviews with celebrities talking about their “first time.” The ads played off a double entendre, with the headline (“X talks about his first time”) and the interview first sounding like a discussion of the star’s first sexual experience, then revealing that the discussion actually concerned the subject's first time drinking Campari.
    The Hustler parody featured a picture of Falwell, and an "interview" in which "Falwell" describes his first sexual experience as occurring “with Mom” in an outhouse while both were "drunk off our God-fearing asses on Campari." In the spoof interview, "Falwell" goes on to say that he was so intoxicated that "Mom looked better than a Baptist whore with a $100 donation," that he decided to have sex with his mother since she had "showed all the other guys in town such a good time" and that they had intercourse regularly afterwards. Finally, when asked if he had tried Campari since, "Falwell" answered, "I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?" The ad carried a disclaimer in small print at the bottom of the page, reading "ad parody—not to be taken seriously." The magazine's table of contents also listed the ad as "Fiction; Ad and Personality Parody."

    Falwell sued Larry Flynt, Hustler magazine, and Flynt's distribution company in the United States District Court for the Western District of Virginia for libel, invasion of privacy, and intentional infliction of emotional distress. Before trial, the court granted Flynt's motion for summary judgment on the invasion of privacy claim, and the remaining two charges proceeded to trial. A jury found in favor of Flynt on the libel claim, but found in favor of Falwell on the intentional infliction of emotional distress charge, and awarded Falwell $150,000 in damages.

    The United States Supreme Court reversed the lower court ruling and held on appeal, in a unanimous 8-0 decision (Justice Kennedy took no part in the consideration or decision of the case), that the First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them.

     

    reply to this | link to this | view in thread ]


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