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Boston Public Broadcaster WGBH Files Bogus DMCA Notice On Public Domain Video Uploaded By Carl Malamud

from the nice-work,-geniuses dept

It's amazing the kind of trouble that Carl Malamud ends up in thanks to people not understanding copyright law. The latest is that he was alerted to the fact that YouTube had taken down a video that he had uploaded, due to a copyright claim from WGBH, a public television station in Boston. The video had nothing to do with WGBH at all. It's called "Energy -- The American Experience" and was created by the US Dept. of Energy in 1974 and is quite clearly in the public domain as a government creation (and in case you're doubting it, the federal government itself lists the video as "cleared for TV."

WGBH, on the other hand, has nothing whatsoever to do with that video. It appears that some clueless individual at WGBH went hunting for any videos having to do with the PBS show WGBH produces, called American Experience and just assumed that based on the title, the public domain video that Malamud uploaded, was infringing. Because that's the level of "investigation" that apparently the censorious folks at WGBH do when looking to issue takedown notices.

Malamud reached out to WGBH and apparently the folks there were most unhelpful. The station's general counsel refused to apologize and simply told Carl that since "American Experience" was "unusual" to be in the title, it was okay for them to issue a bogus DMCA notice. Another lawyer , Eric Brass, told Malamud that they wouldn't be able to do anything about it until next week.

Thankfully, someone at YouTube found out about all of this and restored the video so you can watch it:
The video is also available at the Internet Archive.

While some may argue this is no big deal because by making noise about this, Malamud was able to get the video reinstated, that's ridiculous. WGBH is a public television station that claims in its mission statement that its "commitments" include:
  • Foster an informed and active citizenry
  • Make knowledge and the creative life of the arts, sciences, and humanities available to the widest possible public
  • Improve, for all people, access to public media
I'm curious how issuing bogus copyright takedowns on public domain material matches with any of those "commitments." Hell, why is such a public television station worried about so-called "copyright infringement" in the first place?

And, as Malamud notes, this little "accident" wasted the time of a bunch of people, and put his own YouTube channel at risk, since it initially counted as a "strike" against him. WGBH owes Malamud not just an apology, but an explanation for why this happened and what the station will do to prevent it from happening again.

Filed Under: american experience, carl malamud, contentid, dmca, public broadcasting, public domain, takedowns
Companies: wgbh, youtube


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  • identicon
    Anonymous Coward, 21 Aug 2015 @ 7:42pm

    WGBH has a lack of American Experience, they were simply looking for more.

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

  • icon
    john Katos (profile), 21 Aug 2015 @ 7:55pm

    WGBH

    I would expect nothing less from the Koch station.

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

  • icon
    Sheogorath (profile), 21 Aug 2015 @ 8:07pm

    This article is unfair

    The full list of our commitments is as follows:
    • Foster an informed and active citizenry
    • Make knowledge and the creative life of the arts, sciences, and humanities available to the widest possible public
    • Reflect the diversity of our audience, inviting a sense of inclusion and a better understanding of each other
    • Improve, for all people, access to public media
    • Be a trusted partner to parents and educators, providing programs and services that promote the healthy development of children
    • Serve the individual not just as a spectator but as a participant, able and willing to learn new skills through our programs and services

    We at WGBH strictly adhere to all the above commitments, unless doing so threatens our bottom line, of course.

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

  • identicon
    Anonymous Coward, 21 Aug 2015 @ 8:40pm

    Adverse Publicity

    The lawyers are unapologetic. They also are not technologists.

    But WGBH is a media company. It understands the value of adverse publicity.

    So publicize this. Tweet it. Blog about it. (Wait, there's a check mark after that last one...)

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

  • identicon
    TMC, 21 Aug 2015 @ 8:42pm

    That sounds like two lawyers in need of a Bar complaint.

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

    • icon
      tqk (profile), 22 Aug 2015 @ 8:45am

      Re:

      That sounds like two lawyers in need of a Bar complaint.

      If only that happened more often.

      Oh, and WGBH, fire those !@#$ing lawyers!

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

    • identicon
      alternatives(), 22 Aug 2015 @ 8:27pm

      Re:

      in need of a Bar complaint.

      Yes. Exactly.

      For added fun, send copies of the complaint to all the possible lawyer insurance firms in the state.

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

  • icon
    saulgoode (profile), 22 Aug 2015 @ 12:29am

    A "good faith belief" that a posted video is infringing should at a minimum involve actually viewing the work. It would be nice to see some kickback on this issue by both Mr Malamud and Youtube suing for damages under DMCA's §512.

    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, 22 Aug 2015 @ 8:28am

    TOO MANY TO CHECK! -- If that excuse is valid for Megaupload, then it's valid for WGBH.

    Oh, right, it's always that those trying to take content down are evil.

    By the way, this is an example of monetizing the public domain that should be explicitly outlawed in statute: for no more effort than uploading valuable content made long prior, this whoever nor Youtube shouldn't get a cent, but should pay to public treasury. Whole 'nother topic, but you pirates are giving to the rich what's yours, ever think of that?


    2nd topic: Daniel Ek of Spotify yesterday shortly after my brilliant comment here, yanked the rug from under Masnick and abjectly apologized for violating privacy of users. Read comments to follow-up at The Register: Masnick's "it's crazy, but surrender your privacy" would not be welcome there.

    Of course Ek is lying: that'll all be put back in place slowly because Spotify is STILL losing money even with over 15 million paying and 50 million freeloaders subject to advertising! Spotify is clearly ready to monetize the hell out of even paid subscribers, but found that most people agree with me: streaming is not "social media"; just send me data, don't steal mine.

    One of these days, as with NSA, the corporate spying will reach even the dimwits and they'll be sort of vaguely outraged. I don't claim that will stop it any more than NSA is even slowed, BUT as with Trump suddenly popping to top, there's a burbling undercurrent of common sense that elitist lurbles like Masnick simply don't understand, and it can suddenly form solid and lasting anger.

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

    • icon
      saulgoode (profile), 22 Aug 2015 @ 8:56am

      Re: TOO MANY TO CHECK! -- If that excuse is valid for Megaupload, then it's valid for WGBH.

      By the way, this is an example of monetizing the public domain that should be explicitly outlawed in statute: for no more effort than uploading valuable content made long prior, this whoever nor Youtube shouldn't get a cent, but should pay to public treasury.
      You forgot to provide the link to the website where you are hosting the video and ensuring that the public gets access to their valuable content.

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

    • identicon
      Anonymous Coward, 22 Aug 2015 @ 8:57am

      Re: TOO MANY TO CHECK! -- If that excuse is valid for Megaupload, then it's valid for WGBH.

      No.

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

    • identicon
      Anonymous Coward, 22 Aug 2015 @ 9:24am

      Re: TOO MANY TO CHECK! -- If that excuse is valid for Megaupload, then it's valid for WGBH.

      By the way, this is an example of monetizing the public domain that should be explicitly outlawed in statute: for no more effort than uploading valuable content made long prior, this whoever nor Youtube shouldn't get a cent, but should pay to public treasury.


      This film was made by a public organisation, and using public money, and so is owned by the public. Why should they pay the treasury again to use something that they have already paid them for?

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

    • identicon
      Anonymous Coward, 22 Aug 2015 @ 9:29am

      Re: TOO MANY TO CHECK! -- If that excuse is valid for Megaupload, then it's valid for WGBH.

      that'll all be put back in place slowly because Spotify is STILL losing money even with over 15 million paying and 50 million freeloaders

      An example of where the greed of the labels could well kill one of their sources of income. If they were less greedy. Spotify could make a profit, but then the labels cannot stand anyone else, including the artists who create the music, making money of of the intellectual property that they have bought.

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

    • icon
      tqk (profile), 22 Aug 2015 @ 9:32am

      Too self-entitled to think!

      Oh, right, it's always that those trying to take content down are evil.

      Wow. Josef Goebels would have tears of joy reading that. You've learned his lessons so well. Bravo.

      Google, among others, bend over backwards for your MafiAA employers taking down anything at the drop of a hat on little more than accusation of infringement (you know, perjury?), which then people have to fight to get *their non-infringing stuff* back up and clear their reputation to continue to put *their non-infringing stuff* up! Yeah, you're a great supporter of artists and creators, suuuure! You, as well as everyone else, should be insulted that Malamud is forced to negotiate this minefield.

      You're just pissed that the MafiAA is starting to clue in that they're wasting vast gobs of cash paying you guys to fix their imagined imaginary property infringement problem, and you might have to resort to Americans With Disabilities Act shakedowns to pay for your hookers and blow.

      Waa, wa, wa, waaaaaah.

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

    • identicon
      Anonymous Coward, 22 Aug 2015 @ 5:47pm

      Re: TOO MANY TO CHECK! -- If that excuse is valid for Megaupload, then it's valid for WGBH.

      "those trying to take content down are evil"

      Correct. Get that through your head and you'll understand the disrespect you get.

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

    • identicon
      Anonymous Coward, 23 Aug 2015 @ 12:45am

      Re:

      Even when a corporation is legally at fault, which you concede, you staunchly refuse to blame them. And you wonder why people think you're a corporate cocksucker.

      out_of_the_blue just hates it when due process is enforced.

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

    • icon
      Mike Masnick (profile), 23 Aug 2015 @ 5:54am

      Re: TOO MANY TO CHECK! -- If that excuse is valid for Megaupload, then it's valid for WGBH.

      By the way, this is an example of monetizing the public domain that should be explicitly outlawed in statute

      Your understanding of the public domain is amusing.

      2nd topic: Daniel Ek of Spotify yesterday shortly after my brilliant comment here, yanked the rug from under Masnick and abjectly apologized for violating privacy of users

      Your reading comprehension is getting worse by the day. Ek's blog post came out before my post, and was included in the post as part of the discussion.

      Do you not even bother to read before spewing?

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

  • identicon
    Constitutionally Abiding Sovereign American Citize, 22 Aug 2015 @ 9:10am

    Unconstitutional Acts of DMCA

    Immediately cease and desist. Without due process, you're bogus, unconstitutional takedowns are a mockery to America's Freedoms Guaranteed by the US Constitution and your authority needs to be stopped.

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

  • identicon
    Anonymous Coward, 22 Aug 2015 @ 11:40am

    "Yeah, you're a great supporter of artists and creators, suuuure!"

    Only the artists that are signed to a middleman where the middle man can screw the artist left, right and centre and leave the artist starving with mere cents to live on that this guy loves to support. Whereas those artists who are independent and don't rely on middlemen to get money are scum of the earth to this guy because they don't bring any money whatsoever to the middlemen that this guy worships the ground that the middlemen walk on.

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

  • identicon
    J.R., 22 Aug 2015 @ 4:54pm

    Piracy double standard

    Why isn't stealing or (trying to steal) from the Public Domain considered piracy?

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

    • icon
      Seegras (profile), 23 Aug 2015 @ 1:21am

      Re: Piracy double standard

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

      • icon
        Seegras (profile), 23 Aug 2015 @ 1:27am

        Re: Re: Piracy double standard

        Addendum: And claiming to have the right to invoke DMCA takedowns, means you need to claim copyrights. Which absolutely is copyfraud if you do that with public domain material.

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

        • icon
          Groaker (profile), 23 Aug 2015 @ 8:44am

          Re: Re: Re: Piracy double standard

          Actually only the attorney who files the DMCA takedown needs to swear that he believes the complainant. The complainant makes no statement under penalty of law that he has any rights to the work in question.

          But, I do agree with you. Filing a fraudulent claim should be a basis for significant punishment. Repeated fraudulent claims should be a criminal matter.

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

  • identicon
    Guardian, 22 Aug 2015 @ 8:46pm

    public domain

    um a few things we all need straightening

    A) once in public domain you can do with stuff as you will...if some bozo not willing to find or get a copy freely wishes to pay you then you should and could get money for it.

    B) IT SHOULD be a crime however to CLAIM OWNERSHIP of but is not as at that point we all own it...EVEN them they will argue...which start re-reading B)...

    C) The reason PUBLIC domain exists is too foster more creation one could use parts of that video in say a SCI FI movie if one wanted ....just add a credit where its due I might add and most artists with and form it might be ok and even happy...
    THIS BTW is how most if not ALL things we have are HERE TODAY...

    D) what hollystupid has now created is so stifled a creation ability that they have locked up so much that no one ever bothers with anything they own....THIS is why you have friday the 13th part ten....they have no one willing to create new versions or stories off the old...
    It is why while i tmiught be cool to have batman or super man join with your marvel favorites it will never happen cause each sides corporation has such a greedy expectation of money it just won't happen.

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

  • icon
    got_runs? (profile), 23 Aug 2015 @ 4:11pm

    The police state doesn't like public domain.

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

  • icon
    CarlMalamud (profile), 23 Aug 2015 @ 4:21pm

    What a takedown looks like

    Here is what a takedown notice on YouTube looks like. I tried to take down the video in question, "Energy - An American Experience." Notice YouTube is smart enough to see I'm trying to take my own video down and gives me an out.

    https://public.resource.org/wgbh.org.20150823.pdf

    What's impressive is the number of discrete actions it takes to do the actual takedown. You have to affirmatively answer 20 different fields, including 5 checkboxes that tell you all about the legal gravity of the situation.

    This wasn't a casual mouseclick kind of thing, it was a deliberate legal attack.

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

  • identicon
    Anonymous Coward, 24 Aug 2015 @ 2:16am

    "While some may argue this is no big deal because by making noise about this, Malamud was able to get the video reinstated, that's ridiculous"

    Plus the ones no one ever finds out about

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

  • icon
    CarlMalamud (profile), 24 Aug 2015 @ 9:55am

    Takedown Forms

    To illustrate that a takedown notice is no casual affair, I went through the exercise of filling out the form to take down my own video (needless to say, I didn't hit the submit button). The form is here:

    https://public.resource.org/wgbh.org.20150823.pdf

    You'll note that there are over 20 fields that have to be explicitly filled out. Of particular note are these fields that you have to affirmatively check:

    By checking the following boxes, I state that:
    ∗ I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
    ∗ This notification is accurate; and
    ∗ UNDER PENALTY OF PERJURY, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
    ∗ I acknowledge that under Section 512(f) of the DMCA any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages.
    ∗ I understand that abuse of this tool will result in termination of my YouTube account.


    It is hard to imagine how anybody could accidentally fill out and submit this form.

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

    • icon
      tqk (profile), 24 Aug 2015 @ 10:27am

      Re: Takedown Forms

      So, can we expect you, the EFF, and ACLU teaming up to sue (for a dollar in damages, perhaps)? It's hard to imagine how this travesty has gone on for this long, yet shows no sign of slowing down. It's a ridiculous situation.

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

  • icon
    CarlMalamud (profile), 24 Aug 2015 @ 10:40am

    Letter from WGBH

    The following letter from WGBH was received today:

    https://public.resource.org/wgbh.org.20150824.pdf

    Apology accepted.

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


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