Fair Use For Me, But Not For Thee

from the funny-how-that-works dept

Here's a wacky one. Blogger Mark Reinhardt, who blogs about Idaho, had written a blog post critical of local TV station KTVB and its news reporting. With it, he included a YouTube clip of the reporting in question, along with some of his own commentary about why the reporting was "one sided journalism." While the disclaimer he posted with it, which implied that he believed the use was fair use, was legally meaningless (and slightly incorrect), using a news clip and commenting on it is still a classic form of fair use. Either way, KTVB claimed the video and had YouTube take it down, saying it was infringing. Whether or not it was actually infringing is actually not a huge part of the issue, because what happened next was interesting.

Mark Reinhardt remembered that, last year, KTVB had used one of his videos to illustrate a story. Amazingly, they didn't even credit it to him, but generally to "YouTube." So, he went tit for tat, and sent KTVB an email demanding that they remove his video (or, that they properly credit him).
There are, of course, a number of legal problems with his particular notice. It does not meet the requirements of a proper DMCA takedown notice (not even close). Also, while he's emailing KTVB, he only provides them with a YouTube link, rather than the link of the story. If he wants the video taken down from YouTube (unlikely, since it's his video), then he needs to alert YouTube. If he wants it off of KTVB's site, then he needs to file a compliant DMCA notice pointing to the KTVB story. Of course, KTVB would have a number of reasonable defenses (including fair use and implied license, given that the video was on YouTube with embedding enabled).

Either way, it does seem rather interesting that the news channel issued a takedown on his use of their video, when it had no problems running one of his videos without credit.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    Zakida Paul (profile), May 24th, 2013 @ 2:52pm

    Another case of do as we say, not as we do. All too common when it comes to copyright, unfortunately, and the big reason why the public do not respect copyright.

     

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

    • This comment has been flagged by the community. Click here to show it
       
      identicon
      out_of_the_blue, May 24th, 2013 @ 3:22pm

      Re: @"the public do not respect copyright."

      Actually, a LARGE portion of the public DOES respect copyright because it's based simple and obvious common law: I made it, therefore I own it. Only you kids who want to take and enjoy for free entertainments that you haven't created without giving a little bit of money in exchange show disrepect for common law in your piracy.

      Now, don't argue that you're acting morally by throwing up a bunch of misleading special cases or pointing to corporate fat cats also stealing when you don't accept the simple fundamentals of copyright being common law.

       

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

      •  
        identicon
        Edward Teach, May 24th, 2013 @ 3:26pm

        Re: Re: @"the public do not respect copyright."

        The phrase "common law" has a specific meaning, OOTB2: http://en.wikipedia.org/wiki/Common_law

        I don't think it means what you vaguely imply that it means.

        Copyright isn't based on precedent, it's statute based. That kind of makes it "not common law".

         

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

        •  
          identicon
          Anonymous Coward, May 24th, 2013 @ 4:19pm

          Re: Re: Re: @"the public do not respect copyright."

          'Common misconception' is more accurate than the term common law.

           

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

      •  
        icon
        TheLastCzarnian (profile), May 24th, 2013 @ 3:34pm

        Re: Re: @"the public do not respect copyright."

        I'm almost 44. Do I get to be one of the "kids" too?

         

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

      •  
        icon
        Zakida Paul (profile), May 24th, 2013 @ 3:36pm

        Re: Re: @"the public do not respect copyright."

        There you go again with mass assumptions that anyone who is anti copyright is a pirate. I probably spend more on content than you, sonny.

         

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

      •  
        icon
        Chosen Reject (profile), May 24th, 2013 @ 3:38pm

        Re: Re: @"the public do not respect copyright."

        Actually, most of the public doesn't have a clue about copyright law, regularly get it confused with patents and trademarks, and generally think that it deals with attribution. That's why youtube lyrics videos start off with comments like "I don't own the copyright on this".

        Why?

        Because people think copyright has something to do with attribution. It doesn't. Why do they think this? Because people generally want credit for what they do. They want validation. That's innate in human beings. Wanting money or control over some idea of theirs is not innate. People simply respect copyright law today not because they get it and understand it and agree with it, but because they think it's something it's not and agree with that other something. The more I've taught people that what they are doing is infringement, the more I've found people hate copryight law.

        What do you mean I can't copy this song and give it to my friend? I didn't change the artist?

        What do you mean I can't copy this coloring book for my friends' kids? They know I didn't make it.

        What do you mean I can't play the music/movie I bought at the block party for my neighborhood? I just told you I bought it.

        No, the public at large generally hates copyright once they find out the basic things they think should be ok are punishable by up to $150,000.

         

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

      •  
        identicon
        Anonymous Coward, May 24th, 2013 @ 5:40pm

        Re: Re: @"the public do not respect copyright."

        I get it now. Mike didn't fuck your wife, he fucked you - in the ass - hard - twice - and came both times. I'm sorry blue.

         

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

      •  
        identicon
        btr1701, May 24th, 2013 @ 10:37pm

        Re: Re: @"the public do not respect copyright."

        > the simple fundamentals of copyright being common law.

        Copyright is *not* common law, at least in the U.S.

        It's statutory law.

         

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

      •  
        identicon
        Anonymous Coward, May 25th, 2013 @ 12:33am

        Re: Re: @"the public do not respect copyright."

        Fuck copyright.

         

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

  • This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, May 24th, 2013 @ 3:13pm

    Prosecute him for improper DMCA takedown notice!

    There, took me two seconds to turn it on you with one of your own themes.

    'Amazingly, they didn't even credit it to him, but generally to "YouTube."' -- Since when does "fair use" require attribution, and even if did, how are you going to enforce attribution without the exact same copyright regimen?

    A recent tagline covers this case:
    If you're against copyright, quit putting your name on posts! You don't own the idea!

     

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

    •  
      icon
      Chosen Reject (profile), May 24th, 2013 @ 3:49pm

      Re: Prosecute him for improper DMCA takedown notice!

      Yeah, he should be prosecuted for not having a video taken down.

      Did you seriously get that confused? Mike writes an article about DMCA notices being used to takedown content they don't own, and you get it confused with a non-DMCA email asking for content to be removed (which didn't get removed by the way). One abuses the force of law to get someone else's content taken down, the other asks for someone to consider their own hypocrisy. No law states that DMCA compliant notices are required to take content down.

      Perhaps, blue, you should spend a few more seconds in figuring out what is even going on.

       

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

    •  
      identicon
      Anonymous Coward, May 24th, 2013 @ 4:55pm

      Re: Prosecute him for improper DMCA takedown notice!

      "There, took me two seconds to turn it on you with one of your own themes."

      Maybe next time you should put in two seconds of thought to see if your point is valid.

      He never claims this is a DMCA notice, mostly because it isn't one. Sending a DMCA notice to the infringer would make no sense, since they're not covered by the safe harbors anyway. A DMCA notice actually says "under penalty of perjury", which he does not state in this email - and if he's not stating anything under penalty of perjury, then he's obviously not committing perjury. Additionally, he owns the copyright, and that's the only thing that is covered by the "under penalty of perjury" part of a DMCA notice anyway.

      So... um, what was your point supposed to be, again?

      "Since when does "fair use" require attribution, and even if did, how are you going to enforce attribution without the exact same copyright regimen?"

      Indeed, fair use does not require attribution (although it would seem the polite thing to do.) Maybe he's claiming this isn't fair use. And if it is NOT fair use, then he'd have the right to set conditions like attribution.

       

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

    •  
      identicon
      Anonymous Coward, May 24th, 2013 @ 5:43pm

      Re: Prosecute him for improper DMCA takedown notice!

      Ya got cum dripping down your left leg blue. Do they call you dirty leg?

       

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

    •  
      icon
      Richard (profile), May 25th, 2013 @ 1:04pm

      Re: Prosecute him for improper DMCA takedown notice!

      Sorry - it isn't an "improper notice" - it's a notice that doesn't meet the formal requirements.

      An improper notice is one that DOES meet the formal form of words but where the party sending it perjures himself because he/she doesn't own the rights in question or the usage is not infringing.

       

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

    •  
      identicon
      Anonymous Coward, May 27th, 2013 @ 4:27am

      Re: Prosecute him for improper DMCA takedown notice!

      Blue, you keep trying to claim that copyright as in the permission to copy is a common law right when it is not.
      You are now claiming that attribution depends on copyright, it does not. Attribution is the right to be acknowledged as the creator of a work, so long as the creator puts their name to the work. As respect for attribution has a long history, dating back to at least Homer, it can be classified as a common law right.

       

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

  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, May 24th, 2013 @ 3:14pm

    Another article where a large organization made up of lots of individual actors is being blamed for contradictory behavior with no insight whatsoever as to the cause.

    It might be "interesting" that this happened, but it would be more interesting to find out how. For example, did the person who used Reinhardt's clip also issue the takedown? Or were those different people? If so, are they in the same department? Have they ever even met? Are the working under the same policy? What is the KTVB policy on fair use...by themselves or others? Is this a case of an overzealous summer intern in the legal department of a parent corporation somewhere, or is there some actual hypocrisy at the policy level?

    Techdirt writers are not interested in such details, which might be useful in understanding what the real problem is (so it might be fixed). These details might make it harder to demonize organizations who do things like issue takedowns, because they might reveal that this case of egregious institutional hypocrisy was actually more like a run-of-the-mill cock up.

    But who has time these days to actually understand a situation before publishing about it? Somebody blogged that a guy associated with Prenda's third cousin drive alone in the carpool lane for a mile last week. Better rewrite that article and add a sentence or two of blistering commentary so we can get it up on the front page.

     

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

    •  
      identicon
      Rob, May 24th, 2013 @ 3:22pm

      Re:

      This is a decent excuse the first couple times, but now we hear a story of insane takedowns every day. Its clearly being abused and mark my words it will only get worse without a clear penalty being applied to frivolous, incorrect, or bad faith takedowns.

      It has gotten to the point where content owners are basically thinking I don't like what this guy wrote or did *whips out takedown hammer"

       

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

    •  
      identicon
      Anonymous Coward, May 24th, 2013 @ 5:44pm

      Re:

      Oh, you're the cum dripping down blues leg. Nice to meat you.

       

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

  •  
    identicon
    Anonymous Coward, May 24th, 2013 @ 3:16pm

    It doesn't have to be DMCA

    "It does not meet the requirements of a proper DMCA takedown notice"

    But why should it? They are the alleged infringers, not the service provider. They are not eligible for the DMCA safe harbors in the first place, so issuing a DMCA notice to them wouldn't be proper.

    I'd take this as a cease-and-desist notice.

     

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

    •  
      identicon
      Anonymous Coward, May 24th, 2013 @ 3:25pm

      Re: It doesn't have to be DMCA

      Indeed.

       

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

    •  
      icon
      Chosen Reject (profile), May 24th, 2013 @ 3:54pm

      Re: It doesn't have to be DMCA

      Exactly. There is no requirement that he file a DMCA-compliant take down notice to the actual infringers, nor is it even a requirement that a takedown notice be DMCA-compliant at all. It has to be if the service provider wants to make sure all i's are dotted and t's crossed to limit their liability, sure. But there is nowhere that states content can only be taken down with a DMCA-compliant notice.

       

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

  •  
    icon
    TheLastCzarnian (profile), May 24th, 2013 @ 3:41pm

    time marches on

    Hopefully Mark has been informed of his mistake and remedied the situation by sending a proper DMCA to YouTube. Then we can all sit back and watch OOTB's head explode again.

    Oooh! Pretty!

     

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

  •  
    identicon
    Anonymous Coward, May 24th, 2013 @ 7:21pm

    you cant work out the difference between something posted on a public domain (youtube) and a specific news broadcast from a commercial TV station?

    If this person is trying to control what he posted on Youtube, is a bit different to someone trying to control why is a commercial production.

    BTW: this idiot, (not you) get's to make the decision on fair use or not, that is a specific legal issue, and is decided by courts.

     

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

    •  
      identicon
      Anonymous Coward, May 24th, 2013 @ 9:58pm

      Re:

      you cant work out the difference between something posted on a public domain (youtube) and a specific news broadcast from a commercial TV station?

      Posting on youtube has nothing to do with the copyright status of a work. Like a TV transmission, it is an implicit license to view, and nothing else. Making a work available to the public at no cost is NOT placing it in the public domain.
      If this person is trying to control what he posted on Youtube, is a bit different to someone trying to control why is a commercial production.

      From the copyright perspective, there is no difference from commercial publication and self publication, the copyright owner has the right to control copying.
      BTW: this idiot, (not you) get's to make the decision on fair use or not, that is a specific legal issue, and is decided by courts.

      Fair use is a right, and does not need determination by the courts. If all fair use required such determination, there would be no fair use as licensing would be cheaper that fighting a court battle. The courts are only involved if their is a dispute over fair use, and when abused by publishers to try and extend their control over their works.

       

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

  •  
    identicon
    Mark Reinhardt, May 24th, 2013 @ 10:08pm

    The person mentioned in this post.

    I have actually been notified of my mistake, as presented in this News Item. A humble man, admits when he is mistaken about a process. Now I know, what it is I need to do. I appreciate the time the author has taken to address this issue.

     

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

    •  
      identicon
      Anonymous Coward, May 25th, 2013 @ 8:28am

      Re: The person mentioned in this post.

      What mistake? Not sending a DMCA notice? As I have said, it doesn't make legal sense to send a DMCA notice to the infringer. DMCA notices are sent to service providers. But you aren't dealing with a service provider; you're already in contact with KTVB. If their use is infringing, you can just sue them directly and maybe get a temporary order that they take it down.

      Sending a DMCA notice to someone does not obligate them to actually take anything down. It simply puts them in a position where they would WANT to, because ignoring a DMCA notice means they give up the safe harbors provided in the DMCA. But if you're dealing with the actual infringer, they aren't eligible for the safe harbors in the first place, so they have no more reason to obey a DMCA notice than they would your email.

      I would also point out that in a DMCA notice, there is no option to say "take this down or give me credit".

       

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

  •  
    identicon
    Anonymous Coward, May 25th, 2013 @ 6:33am

    So would this be a case of "red flag" knowledge as specified in the DCMA?

     

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

  •  
    identicon
    Anonymous Coward, May 28th, 2013 @ 10:22am

    corporation > person. Every time.

     

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This