Sony Thinks It Can Charge An 'Administrative Fee' For Fair Use

from the not-how-it-works dept

Mitch Stoltz, over at EFF, has been writing about a ridiculous situation in which Sony Music has been using ContentID to take down fair use videos -- and then to ask for money to put them back up. As Stoltz notes, the videos in question are clearly fair use. They're videos of lectures put on by the Hudson Valley Bluegrass Association, teaching people about bluegrass music. They're hourlong lectures in a classroom setting, that do include snippets of music here and there as part of a lecture, with the music usually less than 30 seconds long.
HVBA’s use of clips from old bluegrass recordings is a clear fair use under copyright law. The clips are short, the purpose of the videos is educational, and the group does not earn money from its videos. Plus, no one is likely to forego buying the complete recordings simply because they heard a clip in the middle of an hour-long lecture.
Nonetheless, like so many others, HVBA had its videos disappear thanks to a ContentID match on some Sony music. Here's where the story gets much worse than the standard version of this story. HVBA reached out to Sony Music, asking it to release the claim, but Sony Music demanded money, saying it was an "administrative" fee.
When HVBA’s webmaster emailed Sony Music to explain that the use of music clips in the lecture videos was fair use, Sony’s representative responded that the label had “a new company policy that uses such as yours be subject to a minimum $500 license fee,” and that “if you are going to upload more videos we are going to have to follow our protocol.” Sony’s representative didn’t say that she believed the video was not a fair use. Instead, she implied that even a fair use would require payment, and that Sony would keep using YouTube’s Content ID system against HVBA until they paid up.
As the EFF post notes, this highlights (yet again) what a dangerous disaster "notice and staydown" would be. It would open up the ability for shakedowns and censorship like what happened above.

Of course, once EFF publicized the story, Sony Music quickly backed down, but not everyone will be able to have their story told by EFF.

Even worse, even in backing down, Sony Music refused to concede the point, and indicated it still believed that fair use needed to be paid use.
A Sony executive emailed HVBA to say that the company “has decided to withdraw its objection to the use of its two sound recordings” and “will waive Sony Music’s administrat[ive] fee.” That sounds like Sony was simply acting out of courtesy, when in fact the company had no right to demand a fee, by any name, for an obvious fair use. Other YouTube users with less knowledge of the law may have been convinced to pay Sony $500 or more, and provide detailed information, for uses of the music that the law makes free to all.
It does make you wonder if Sony Music has been successful in charging this $500 fair use "administrative fee" to others, in a move that would be pure copyfraud.

Either way, imagine how copyright trolls would react to this kind of situation if it were more global on the internet with a mandated notice and staydown provision. We've already written about cases where people falsely claim copyright on works to get stuff taken down on other sites, but if there's a way to not just censor with that, but also make money, you know it's going to get widely abused. Hell, we've even had a similar situation here, where a small publication in another country (which does not have a fair use regime) sent us a letter objecting to our linking and quoting them without reaching "an agreement." Giving more power to folks like that is a recipe for widespread censorship and shakedowns.

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  • identicon
    Jason, 24 May 2016 @ 9:56am

    It reminds me of dealing with customer service when I find a mistake on my bill. In the most recent example, my cable company charged me for a box they did not, in fact, actually deliver during a service call. After explaining the reality of the situation, and waiting for them to confirm it, the rep helpfully said he'd "waive that charge" on my account.

    I don't know what secret training school that all these folks get sent to, but why can't they just say they've reversed or voided or whatever the charge, instead of acting like they're doing me a big favor by not charging me for something they didn't deliver? Is "we're sorry, that was charged by accident, here let me fix it for you" really that hard to say? Or are they living in terror of "admitting fault" and having me sue them for a million dollars of pain and suffering on account of my $40 overcharge?

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

    • icon
      John85851 (profile), 24 May 2016 @ 10:26am

      Re:

      I'm sure most customer service reps go through training to make sure they never say "Sorry about that, we messed up" or to admit guilt in any way. Instead, like you said, they act like they're doing the customer a favor for things like reversing fees that shouldn't have been charged in the first place.
      I wonder if this because the legal department figures that admitting guilt could leave them open to some kind of lawsuit.

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

    • identicon
      Anonymous Coward, 24 May 2016 @ 11:35am

      Re:

      The secret training came from law school. Real or not, lawyers tend to fear that any statement of apology or other corrective action is an admission of liability or culpability that would cost them in a lawsuit.

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

  • identicon
    Anonymous Coward, 24 May 2016 @ 9:57am

    Abuse without cost

    Since they have continued to file false takedown notices for never taking fair use into account, ban SONY for at least 1 year. They can't make any takedown claims, or notify anyone until they apologize for abusing the system and agree to never ignore the required fair use possibility for every notice they send in the future. By taking down clearly fair use videos, they are making a mockery of the entire legal system.

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

    • identicon
      Anonymous Coward, 24 May 2016 @ 11:27am

      Re: Abuse without cost

      Problem is the DCMA doesn't allow for this. Don't follow through on the notices and you loose your safe harbor. At least that is the way I understand it to work.

      So if you want to destroy a company send as many claims as possible and hope they cannot respond to them all. That way if they miss one of the real claims you can take them to court.

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

    • identicon
      Anonymous Coward, 24 May 2016 @ 12:35pm

      Re: Abuse without cost

      Since they have continued to file false takedown notices for never taking fair use into account
      Court rulings have required companies to consider fair use before sending DMCA takedown notices, but this was not a DMCA takedown. ContentID is a private agreement between Sony and Youtube, and only the (non-public) contract between them governs these takedowns. "Fair use" is a defense against copyright infringement, and no such infringment was alleged.

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

    • identicon
      DigDug, 24 May 2016 @ 1:05pm

      Re: Abuse without cost

      No, no no.

      Here's how you fix "takedown abuse".

      1st offense - Whatever "copyright" that was incorrectly claimed as violated is immediately dumped into the public domain with absolutely no chance of ever regaining the copyright.

      Couple that with a 1 billion dollar fine, payable to the people that they incorrectly accused of copyright violations.

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

  • identicon
    Zengief, 24 May 2016 @ 10:01am

    New type of content removal?

    Let's call this what it really is:
    Notice and shakedown.

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

  • identicon
    David Neal, 24 May 2016 @ 10:12am

    "Fair Use" is a defense against infringement, not a right

    Caveat: I am not a lawyer. Any use of someone else's work makes you a target for litigation for copyright violation. "Fair Use" is a defense in this situation. Whether the use is fair is determined by a court. There is no way to predetermine a favorable judgement of fair use. You can, however, start the litigation as the "infringer," you don't have to wait for the copyright owner to sue you. Even things that seem fair have been shot down by a judge. Use other people's work at your own risk!

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

    • icon
      Daniel (profile), 24 May 2016 @ 10:22am

      Re: "Fair Use" is a defense against infringement, not a right

      It was an unsubstantial use of music clips for educational purposes, presented in a clearly educational manner; the use is obvious fair use as defined by the law itself.

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

    • icon
      Mason Wheeler (profile), 24 May 2016 @ 10:25am

      Re: "Fair Use" is a defense against infringement, not a right

      That's simply not true. Lawrence Lessig famously likes to say that, but he's wrong. Fair use is the rights of the public to make use of public culture; copyright is a set of temporary exceptions to those rights, carved out in the name of encouraging the further development of culture. Calling fair use "an exception to copyright" is putting the cart before the horse.

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

    • icon
      Anonymous Anonymous Coward (profile), 24 May 2016 @ 10:26am

      Re: "Fair Use" is a defense against infringement, not a right

      I am not a lawyer either, but I think you might have that backwards. Fair use could only be a legitimate defense if it is a right, or otherwise acceptable under current copyright law. While you may be correct that only a court can determine if a particular use is fair, there is a four step test that is supposed to be considered by a rights holder, or one that claims such. That test is not that difficult to parse.

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

    • identicon
      Anonymous Coward, 24 May 2016 @ 10:28am

      Re: "Fair Use" is a defense against infringement, not a right

      The big publishers want to kill fair use because it makes the use of automated tools much easier. However, without fair uses, all discussion and critique of a work, along with the study of history of an art form can only exist if the copyright holders permit.

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

      • identicon
        Anonymous Coward, 24 May 2016 @ 11:39am

        Re: Re: "Fair Use" is a defense against infringement, not a right

        The publishers want to kill fair use so they can do exactly what they did here: make people pay for every use of their content, over and over and over again.

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

        • icon
          limbodog (profile), 25 May 2016 @ 7:21am

          "Fair Use" is a defense against infringement, not a right

          I think what the OP on this comment was trying to say was that no judge will ever throw out a case because of fair use. You can use it, but you may get sued. And the ones suing you have deeper pockets than you.

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

    • icon
      bureau13 (profile), 24 May 2016 @ 10:32am

      Re: "Fair Use" is a defense against infringement, not a right

      Not even close. Fair Use is the exception to copyright that makes copyright itself work under the First Amendment, and it is absolutely a right.

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

    • identicon
      David Neal, 24 May 2016 @ 2:47pm

      Re: "Fair Use" is a defense against infringement, not a right

      see: http://fairuse.stanford.edu/overview/fair-use/ for a lawyerly take on fair use. I am not saying that this example would not be considered fair use. It probably would, at large legal expense to all involved. If it were me, I would consider paying a nominal fee for permission, in which case there would be no infringement because I would have permission. Much cheaper than legal fees.

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

  • identicon
    Anonymous Coward, 24 May 2016 @ 10:19am

    This suggests an important enhancement to ContentID

    Given that ContentID can apparently spot short uses of "owned" material embedded in a larger work, it would be very helpful if the position data was recorded and used in the takedown. Instead of disabling the entire work, disable the sections of the work which matched the "owned" material. This should be relatively easy from a technical side, and would mitigate the damage done in situations like this where the "owned" work is a tiny portion of the overall content. It would serve the supposed purpose of "blocking access to an owned work," while allowing the unquestionably non-infringing portions of the overall work to remain available. In cases of intentional infringement, it would thoroughly cripple the infringing upload since most of the work would be matched. In cases like this, where the usage is minimal, the lecture components would remain available while waiting for someone to beat Sony into fixing the problem. The only non-technical downside I see to my proposal is that, by mitigating the damage ContentID does, it would mitigate the political will to pursue real reform.

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

    • identicon
      Anonymous Coward, 24 May 2016 @ 10:25am

      Re: This suggests an important enhancement to ContentID

      The damage may not be so minor. For instance, with the lectures under discussion, many people are not familiar with music terminology or music history, and a lecture loses much of its value without the snippets to illustrate a point.

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

    • identicon
      Quiet Lurcker, 24 May 2016 @ 11:19am

      Re: This suggests an important enhancement to ContentID

      Uh, no.

      By doing this, you may be authorizing the "rights holder" to materially affect the nature of the material. A lecture about music (as in this case) without recordings as examples (or scores, depending whether it's a class on music theory) is pretty much pointless.

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

      • identicon
        Anonymous Coward, 24 May 2016 @ 1:24pm

        Re: Re: This suggests an important enhancement to ContentID

        The rightsholder already materially affects the presentation when they make the entire video unavailable and it remains blocked until either they clean up their act or the uploader takes the substantial risk of filing a counternotice. If instead the video was only blanked in the sections that ContentID matched, innocent victims such as Hudson Valley Bluegrass Association would suffer less while waiting for the rightsholder to fix the mistake. I will grant that the lecture is less useful, possibly much less useful, when the copyrighted sections are missing. However, if you only wanted to watch the video for some other purpose, such as transcribing some of the lecturer's comments or reviewing a slide, having access to the parts which are unquestionably not infringing would be helpful.

        To be fancy, YouTube could offer a choice between having the video made unavailable or having sections of it blanked out. Uploaders who absolutely must have a perfect video can choose to be knocked offline when rightsholders go crazy.

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

        • identicon
          Anonymous Coward, 24 May 2016 @ 2:03pm

          Re: Re: Re: This suggests an important enhancement to ContentID

          What you suggest would open up even more abuse of contentid. such as politicians censoring quotes from their speeches, while claiming that they are not censoring free speech.
          The big problem is a legal system where that results in people only having the rights that they can afford defend through years of litigation.

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

  • identicon
    Anonymous Coward, 24 May 2016 @ 11:09am

    Administrative Fee, I like the sound of that

    Can my hosting company charge Sony an "administrative fee" for the time spent processing a bogus DMCA?

    (I won't hold my breath)

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

  • identicon
    Anonymous Coward, 24 May 2016 @ 11:25am

    Sounds unfair and deceptive. Someone should tip off the FTC.

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

  • icon
    JustMe (profile), 24 May 2016 @ 12:02pm

    This is why

    I don't buy any of Sony's crap. No hardware, no music, no DVDs, nada. If it happens to show up on one of the movie channels I might watch it, but that isn't directly profiting Sony.

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

  • icon
    That One Guy (profile), 24 May 2016 @ 12:28pm

    Sleazy, but not surprising

    This is simply a more blatant example of what I've noticed several maximalists say or imply over the years, that there is no fair use unless it's paid use. I've no doubt that if they had their way there would be no fair use whatsoever, if you wanted to use something, no matter how much or for what fashion you'd be required to pay for it, and pay dearly.

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

    • identicon
      Anonymous Coward, 24 May 2016 @ 12:46pm

      Re: Sleazy, but not surprising

      Without fair use they would be able to regain control over what is published by refusing a license unless they were publishing it. At the same time the license fees would come out of the authors and artists royalties driving them even further into poverty.

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

  • identicon
    Anonymous Coward, 24 May 2016 @ 1:32pm

    "with the music usually less than 30 seconds long."

    How about you inform readers exactly how long the performances flagged were?

    It kinda matters.

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

    • icon
      That One Guy (profile), 24 May 2016 @ 1:45pm

      Re:

      No, not really. Fair use doesn't have a set limit, 30 seconds or otherwise, it's possible to use an entire work and still qualify for fair use, and conversely it's been found at least once that even a very short excerpt out of a much larger work can fail to be fair use.

      How many seconds the clips were matter a lot less than how they were being used, and given this case involved non-profit use for educational purposes there's a pretty strong fair use argument to be made.

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

    • identicon
      Anonymous Coward, 24 May 2016 @ 8:06pm

      Re:

      Everyone knows how long it took - long enough for you to get your panties in a bunch. Which isn't saying a lot since even one second of fair use makes you lot break out in hives, admittedly, but you have cried wolf so often it's very hard to care.

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

    • icon
      PaulT (profile), 24 May 2016 @ 11:27pm

      Re:

      "It kinda matters."

      Not really. Unless you can point to the time limit in the fair use rules, of course.

      But, thanks for nitpicking about a minor point rather than addressing the actual issue.

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

    • identicon
      Anonymous Coward, 25 May 2016 @ 9:44pm

      Re:

      How about you inform readers exactly how long the performances flagged were?

      Just exactly how does it matter?

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

  • icon
    Aaron Walkhouse (profile), 24 May 2016 @ 10:57pm

    This is a criminal offense.

    By demanding a licensing fee for an acknowledged fair use,
    Sony has just committed one count of extortion for each one.

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


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