Sirius XM Uses DMCA To Memory Hole Archive Of Howard Stern's Interviews With Donald Trump

from the but-copyright-isn't-used-for-censorship dept

Earlier this week, the company Factba.se posted an archive with audio and transcripts of every interview that Donald Trump did on Howard Stern's show. As they noted, some of those interviews had turned into news stories with a fair bit of public interest. Factba.se pointed out that while those news stories quoted from the interviews, there was no publicly available archive of all those interviews for others to listen through.

We’ve found snippets and pieces before. But, per our mission, we want to ensure that anything in our database is the full transcript, versus an excerpt. As such, we were interested in the full record of conversations between Donald Trump and Howard Stern from the 1990s forward. To make sure we had it all, we wanted the whole show to check.

Our research indicated he was on the show dozens of times, but not the details, exact dates, etc. We reached out to people who operate fan sites, particularly marksfriggin.com, and on the Internet, particularly via Reddit. Stern fans are known for collecting recordings of old shows, so we were hoping to find the full recordings...

After being "insulted in ways both creative and thorough," the company thought it wasn't going to get access to the files, until someone leaked the whole batch to them:

Out of the blue, early in the morning September 5th, about 3 1/2 months after we had moved on, we received an email with a Dropbox link from an anonymous Yahoo account. We looked and to our surprise, it was several dozen MP3s with the entire show, end-to-end, which allowed us to verify we were capturing the entire interview. We copied the MP3s and quickly emailed back to ask a couple of clarifying questions. We were not-so-politely told to leave them alone.

In the end they realized they had 35 different interviews from May of 1993 through August of 2015. They transcribed everything and then posted the transcripts to their own site, and the audio to both YouTube and Soundcloud.

However, as first reported by Cyrus Farivar at Ars Technica, Sirius XM apparently was not happy and sent a DMCA notice to YouTube, to Soundcloud and to Factba.se.

It has recently come to our attention that you operate a website accessible at www.factba.se (the “Site”), on which there is posted over fifteen hours of recordings of Howard Stern Materials, as well as corresponding transcripts of such recordings. Many of such recordings are also accessible through CantyMedia’s YouTube page and Factbase’s SoundCloud page. As a legal matter, your unauthorized distribution of the Howard Stern Materials (including the corresponding transcripts) through these platforms violates the copyrights therein, and constitutes copyright infringement. Publication and distribution of infringing materials via YouTube and SoundCloud also violates those sites’ policies.

In light of the above, we must insist that you: (a) immediately remove or disable access to all Howard Stern recordings and transcripts, and any other SiriusXM programming, on the Site, YouTube, SoundCloud, or any other websites, databases, or computer/mobile applications through which you are providing unauthorized access to the Howard Stern Materials or SiriusXM programming; (b) refrain from uploading, broadcasting and/or distributing any Sirius XM programming (including the Howard Stern Materials) in the future; and (c) provide us with written insurances confirming that you have done as requested.

In view of the importance of this matter, we have contacted YouTube and SoundCloud contemporaneous with the sending of this letter, to request that they remove the unauthorized recordings uploaded to your accounts pursuant to their obligations under the Digital Millennium Copyright Act (“DMCA”). Please be aware that these platforms may take adverse actions, such as terminating a user’s accounts, in response to a DMCA notice identifying multiple infringements. It is our understanding that such actions may be avoided by an account holder’s direct and expeditious removal of all such unauthorized recordings.

The Ars piece quotes a bunch of lawyers discussing whether it is fair use -- with many leaning towards it being fair use, but some arguing it's not that clear cut. I would argue that the newsworthy nature of it and the purpose of the archive push it pretty strongly towards being transformative (the use is quite different than the initial use). And, similarly, the fact that this clearly wouldn't "harm" the market for the Howard Stern show, would weight heavily towards fair use -- though, with so many fair use cases, you never know how a judge will see things (and you could make arguments against fair use if you tried hard enough).

Factba.se also says that it's trying to resolve this amicably with Sirius XM and to properly "preserve the record." And that raises some other questions. Copyright law has Section 108, for libraries and archives to preserve important works in a manner for research purposes that are open to the public. Among the rules under 108 is that the archive must determine "after reasonable investigation" that a copy of the work cannot be obtained at a fair price -- which appears to be the case here. However, there are also some other hoops to jump through, including posting a specific notice with the archive to qualify (which seems unlikely to have happened). Furthermore, it's unlikely that a for-profit entity can avail itself of Section 108's protections. There is one part of 108 -- put in place specifically for Vanderbilt's TV news archive, that make it easier to archive "audiovisual news programs" but again, is Howard Stern's show a "news program?" That would be a fun question to test in court.

There's a separate, lurking, question here about whether or not a radio interview is actually covered by copyright in the first place -- but that's a potentially muddy swamp that probably isn't worth diving into right now. I'll just say that while many people assume that audio interviews are covered by copyright, there's a compelling argument that the actual text of copyright law does not agree. I'm not convinced a court would actually buy that argument, but it's one argument that could be made. After all, Sirius XM isn't adding the "creativity" to any of Trump's comments or statements. He's making them up as he speaks.

The larger point, though, is that there's tremendous news value and public interest in these archives, and we're in yet another situation where copyright law is being used to censor information that is in the public interest. And that should concern everyone.


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  • icon
    Chris ODonnell (profile), 29 Sep 2017 @ 12:04pm

    i wonder if the Internet Archive would likes those MP3s?

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

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 3:18pm

      Re:

      Apparently not. Their terms of use requires users to agree "not to … otherwise annoy anyone" (while not intended to, this obviously would annoy Sirius) and "not to act in any way that might give rise to civil or criminal liability" (this probably doesn't, but might, give rise to liability).

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

  • icon
    Ninja (profile), 29 Sep 2017 @ 12:25pm

    Even if it wasn't fair use (and I do think it clearly fits that considering the moron is now POTUS) there's the availability part. It should be clear: if it's not available for reasonable prices then it's public domain. Simple as that.

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

    • icon
      jupiterkansas (profile), 2 Oct 2017 @ 8:21am

      Re:

      While it's not as simple as that and such a law would never be passed, it would solve a lot of problems with copyright.

      I would put a time limit on it though, to say if a work wasn't made available for a certain number of years. There are valid reasons not to make something available temporarily, but it should not be out of print indefinitely. And an exception would be works with pending legal issues.

      Of course, it raises a can of worms about what constitutes "making available" and "reasonable price."

      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, 29 Sep 2017 @ 12:25pm

    FU, or not FU? That is the question.

    "push it pretty strongly towards being transformative (the use is quite different than the initial use)." -- HOW is the audio transformed? Your definition of "transform" implies that if one states is oh, say, watching a movie to research bloopers, then it's totally "fair use". -- NO, transform means change / add, NOT how random persons might have differing purposes (or say so).

    Therefore, DMCA applies.

    BTW: Masnick above blithely relates that a "for profit" business is restricted in what it can do (has to be a good public purpose, here, librarying), while rest of time he regards businesses as "persons" having super-rights as that "platforms" can control the speech (outlets) of "natural" persons for any or no reason. Yet again, Masnick has no philosophical consistency, just writes to support topic.

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

    • icon
      Stephen T. Stone (profile), 29 Sep 2017 @ 12:35pm

      Re: FU, or not FU? That is the question.

      HOW is the audio transformed?

      The audio itself need not be transformed for a use of it to be transformative. The usage of the audio, in this case, transformed the original usage—entertainment—into a new usage—delivering newsworthy information—by way of context. As with all other copyright cases, infringement is based on context.

      he regards businesses as "persons" having super-rights as that "platforms" can control the speech (outlets) of "natural" persons for any or no reason

      Yes, Mister SovCit, a privately-held business that offers a platform for use by the general public can rescind access to that platform at any time for damn near any reason. Show me the law that says you can force a privately-owned platform to host your speech and I will show you a law that would never hold up in court.

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

      • icon
        MyNameHere (profile), 29 Sep 2017 @ 1:27pm

        Re: Re: FU, or not FU? That is the question.

        Here the use isn't trasnformative, it is "informative", if you like. It's bringing together a collecting of appearances on a radio program, nothing more.

        The works in question are clearly copyright. There is no debate there.

        The debate of fair use is blunted quite a bit by the lack of any other editorial material with these audio files. There is no indication that the site is specifically education, it looks much more, umm, political in nature.

        A rights holder has no obligation to make something available. Copyright in fact allows them to hold it for 75 years without releasing it. It's up to them.

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

        • icon
          Stephen T. Stone (profile), 29 Sep 2017 @ 1:54pm

          Re: Re: Re: FU, or not FU? That is the question.

          It's bringing together a collecting of appearances on a radio program, nothing more.

          And one could consider that “transformative” by way of changing the context: Rather than each interview merely being part of a broader show with a broad range of topics and content, the interviews as a collection provide a distinct and direct exploration of our sitting POTUS over a long period of time and well before he became president. Context remains the key component here.

          The works in question are clearly copyright. There is no debate there.

          As the article notes, whether Sirius XM (and possibly Howard Stern, for that matter) owns a copyright on episodes of The Howard Stern Show remains an unsettled matter at best.

          The debate of fair use is blunted quite a bit by the lack of any other editorial material with these audio files. There is no indication that the site is specifically education, it looks much more, umm, political in nature.

          In the words of many of our most revered philosophers and thinkers: “So what?” A political use of content can still be considered Fair Use—especially when that use has a context of providing information about a politician. In this case, the interviews provide information about our sitting POTUS that would have otherwise disappeared down the memory hole. By removing the individual interviews from the entire episodes and presenting them on their own, the use becomes much more transformative and dependent on context. Fair Use could—and should—apply here.

          A rights holder has no obligation to make something available. Copyright in fact allows them to hold it for 75 years without releasing it. It's up to them.

          Say that content is released, but later locked up where the general public cannot own, access, or create a copy of it. In cases such as this one—where the material contains information that the general public may find informative or useful—the public should have a right to copy that material, in part at the bare minimum, so that information remains in the public sphere. The world would otherwise be denied a chance to hear the sitting POTUS talk about himself—no matter how much you or I may not want to hear him talk.

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

        • icon
          Ninja (profile), 29 Sep 2017 @ 2:26pm

          Re: Re: Re: FU, or not FU? That is the question.

          "A rights holder has no obligation to make something available. Copyright in fact allows them to hold it for 75 years without releasing it. It's up to them."

          Which leads us to the point: copyright is broken and unconstitutional as it is today. Remember what the Constitution says? Lemme refresh your memory:

          United States Constitution (Article I, Section 8, Clause 8

          The Congress shall have power 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.



          Locking it behind a law doesn't seem like any kind of promotion, no?

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

          • icon
            Ninja (profile), 29 Sep 2017 @ 2:29pm

            Re: Re: Re: Re: FU, or not FU? That is the question.

            Not to mention life + 75 years means it's virtually infinite because anything created during anybody's lifetime won't be in the public domain to 'promote' such progress during said lifetime. Or it'll be available when said person is already very old and probably not able to create much anymore.

            Seriously, the shit is 100% unconstitutional.

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

        • identicon
          Anonymous Coward, 29 Sep 2017 @ 5:27pm

          Re: Re: Re: FU, or not FU? That is the question.

          Given that you think "fair use" is a "novel legal theory" and you detest it with the fervor of a thousand blazing suns, you're not really qualified to criticize here.

          Apparently your support of the law doesn't extend to bits you don't like.

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

        • identicon
          Anonymous Coward, 30 Sep 2017 @ 8:28am

          Re: Re: Re: FU, or not FU? That is the question.

          "Here the use isn't trasnformative, it is "informative", if you like. It's bringing together a collecting of appearances on a radio program, nothing more."

          It isn't transformative, it's just some word I made up to pretend it isn't transformative.

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

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 8:42pm

      Re: FU, or not FU? That is the question.

      You have no idea what transformative means.

      This is unsurprising, as you never have any idea what you're talking about.

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

  • identicon
    SpaceLifeForm, 29 Sep 2017 @ 1:38pm

    Doubt Sirius XM owns the copyright

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

  • identicon
    SirWired, 29 Sep 2017 @ 1:43pm

    "This isn't fair use" seems not-unreasonable

    A for-profit company posting the interviews and transcripts verbatim certainly pushes the bounds of fair-use, right from the get-go. Donald Trump is indeed a public figure, and that might shift the needle somewhat, but it's not unfair (pun intended) to say it doesn't move the needle THAT far.

    Section 108 seems to be a reasonable solution, and the hoops don't seem to indicate that memory-holing is inevitable.

    I will say that the headline is a bit hyperbolic. Like it or not, Sirius-XM owns those interviews, and if the proposed use isn't under fair use (or section 108), it's their right to say these folks can't host them.

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

    • icon
      Stephen T. Stone (profile), 29 Sep 2017 @ 1:58pm

      Re: "This isn't fair use" seems not-unreasonable

      Therein lies the rub: How could Sirius XM know, right now, that this usage of the interviews is not protected by either Fair Use principles or Section 108?

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

      • identicon
        Anonymous Coward, 29 Sep 2017 @ 3:23pm

        Re: Re: "This isn't fair use" seems not-unreasonable

        How could Sirius XM know, right now, that this usage of the interviews is not protected by either Fair Use principles or Section 108?

        For them, it would hardly be worth worrying about. Nobody ever gets in trouble for sending takedowns. Well, maybe once.

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

    • icon
      crade (profile), 29 Sep 2017 @ 2:34pm

      Re: "This isn't fair use" seems not-unreasonable

      Being able to do news reporting on issues that are important for democracy to function moves the needle off the scale on the public interest side and other factors wont budge it. It's probably the most important reason fair use is needed.

      The various factors they created are supposed to help them figure out corporate interest vs public interest when it is murky, they aren't supposed to be a game where you play with the factors that are barely relevant case to try to get enough green or red lights

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

    • identicon
      Anonymous Coward, 29 Sep 2017 @ 8:44pm

      Re: "This isn't fair use" seems not-unreasonable

      I'm not sure how you think the headline is hyperbolic. Your subsequent sentence has nothing to do with the headline.

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

  • identicon
    Anonymous Coward, 29 Sep 2017 @ 2:34pm

    I guess that is one way to hide the crap he said on that show.

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

  • identicon
    Anonymous Coward, 2 Oct 2017 @ 1:16pm

    Interviews and copyright

    See:
    Reporters committee for Freedom of the Press
    Copyright and taped interviews
    Date: August 1, 2012

    Also:
    Copyright and Related Issues
    Relevant to Digital Preservation
    and Dissemination of Unpublished
    Pre-1972 Sound Recordings by
    Libraries and Archives
    Commissioned for and sponsored by the National
    Recording Preservation Board, Library of Congress

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


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