Big Entertainment Companies Issuing Wrongful YouTube Claims On Public Domain Works

from the that's-depressing dept

As Congress is debating SOPA, it seems worth taking a look at how copyright holders are already abusing existing copyright law to take down content they have absolutely no right to. Cory Doctorow has a column concerning how the "real pirates" of YouTube may be the big entertainment companies, who have been using YouTube's ContentID system (not the DMCA) to "claim" a ton of public domain works:

FedFlix is a charitable project launched by Carl Malamud, a "rogue archivist" who raises funds to digitise and upload videos created at US government expense. Under US law, government creations are in the public domain and can be freely used by anyone, but the US government is remarkably lax about actually making its treasures available to the public that owns them.

Malamud's group pays the fees associated with retrieving copies from the US government sometimes buying high-priced DVDs that the government issues, other times paying to have unreleased videos retrieved from government archives and posts them to YouTube, the Internet Archive and other video sites, so that anyone and everyone can see, download, and use them.

Malamud's 146-page report from FedFlix to the Archivist of the United States documents claims that companies such as NBC Universal, al-Jazeera, and Discovery Communications have used ContentID to claim title to FedFlix videos on YouTube. Some music royalty collecting societies have claimed infringements in "silent movies".

I've embedded that full report below as well. As Doctorow notes, under the ContentID system, getting too many strikes can get you in trouble, but there apparently is no way to defend yourself by saying "this work is in the public domain." The closest may be that it's fair use, but fair use doesn't apply to the public domain (fair use is an exception to copyright law, but there's no copyright on public domain material).

There are two issues here. One is the general over-claiming of material by others. That's generally known as copyfraud and should be punishable, but rarely is. The second, perhaps bigger, point is how this ContentID system -- the kind of pre-monitoring system that the entertainment industry has been trying to foist on every user-generated-content site for the past few years -- isn't always so benign. It can clearly catch perfectly legitimate things, and that's a problem if we're trying to encourage the free flow of information.

But, of course, nothing gets done to fix any of this because, as Cory notes, "there is no organized lobby for the public domain." And that's sad. Because, realistically speaking, Congress should be the lobby for the public domain, as they're supposed to (I know, don't laugh) represent the interests of the public.

Filed Under: carl malamud, copyfraud, copyright, copyright abuse, public domain, takedowns

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  1. icon
    DannyB (profile), 21 Dec 2011 @ 6:05am

    What's good for the goose

    Is good for the gander.

    There should be statutory damages of, oh, let's say $150,000 per instance of false claim of copyright ownership and per false take down request.

    Software tools that YouTube (and others) offer to content owners should be expressly recognized as DMCA take down requests under penalty of perjury. After all, these mechanisms wouldn't have been built if it weren't to automate DMCA take downs. Whoever, probably in management, that made the decision to offer certain parties automated take down tools could be deposed to discover exactly why these tools were created. It can only be a concession YouTube made to that would not have been made except for the existence of the DMCA.

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