Don't Celebrate Copyright Being Used For Political Censorship Just Because You Don't Like The President

from the still-abusive dept

You may have heard the story recently of how the band REM got a video in a tweet taken down after Donald Trump had retweeted the video. CNBC has the details:

A satirical video using music from rock band R.E.M., which was shared by the Twitter account of President Donald Trump, has been removed from the social media site after a complaint by the publisher of the band's songs.

A lawyer for Universal Music Publishing Group had reached out to Twitter on Friday asking that the video -- which was first posted by another user -- be taken down from the platform, a source familiar with the situation told CNBC.

The clip, which runs more than two minutes in length, plays audio from R.E.M.'s early-'90s hit single "Everybody Hurts" over excerpts from Trump's Feb. 5 State of the Union address.

This started to spread around on Twitter, and I saw lots of people who hate the President celebrating over this victory in yanking the stupid video (and it was stupid) from his tweet. REM and bassist Mike Mills celebrated:

But, even if you absolutely loathe the President and his silly partisan gloating, you should be very concerned about this. And, I know, that some people are already screaming (because they did it already on Twitter when I first brought this up) that REM has "every right" to control its work how it wants to and that includes not letting the President use their music. That's mostly true. And the video may, indeed, have been infringing.

But the problem is that this wasn't used for any of the reasons that copyright specifically enables. It was flat out used because the band didn't like the politics or the political message. In other words, it was using the law to stifle political speech. That was the entire intent behind the move (REM and Universal have let other similar clips remain up) -- which REM and Mills are basically admitting with their tweets. They used copyright to censor a political message because they disagree with it. Copyright (in the US) isn't supposed to be used that way. Other countries have something called "moral rights," which would make such a takedown legitimate under moral reasons, but in the US copyright is explicitly an economic right, and not a moral one. And thus, any use of copyright -- even if otherwise legit -- is a form of copyfraud, in which the power of copyright is used not because of economic concerns, but directly to censor speech.

So even if you love REM and hate the President, if you believe in free speech, you should certainly be concerned about the use of copyright as a tool for outright censorship of speech someone didn't like.

Filed Under: censorship, copyright, donald trump, free speech, rem, tweets
Companies: twitter, universal music


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  • icon
    Mason Wheeler (profile), 1 Mar 2019 @ 7:52am

    Whatever happened to "satire, parody, and commentary are protected as fair use" anyway?

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

    • identicon
      MathFox, 1 Mar 2019 @ 9:25am

      Re:

      Twitter prefers short term profits over defending fair use in court.

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

      • identicon
        Anonymous Coward, 1 Mar 2019 @ 9:32am

        Re: Re:

        How did removing the tweet result in short term profit for Twitter?

        Or are you just speaking to hear your voice?

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

        • identicon
          MathFox, 1 Mar 2019 @ 9:40am

          Re: Re: Re:

          How did removing the tweet result in short term profit for Twitter?

          Lawsuits are a cost for a company. Not taking that expense frees up money to pay the shareholders.

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

    • icon
      Thad (profile), 1 Mar 2019 @ 9:36am

      Re:

      Whatever happened to "satire, parody, and commentary are protected as fair use" anyway?

      That doesn't mean that using a copyrighted song as background music in a parody is noninfringing; it means writing a parody of a song is noninfringing.

      "Weird Al" Yankovic publishing a song parody: fair use. (He always gets permission first anyway, but that's politeness, not legal obligation.)

      The Onion using Born to Run in its entirety as a background track in an Onion News Network video: probably not fair use.

      Mike notes, in the article, "that the video may, indeed, have been infringing." He's not arguing that the takedown request was illegal; he's arguing that it was unethical because of the motivation behind it.

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

      • identicon
        MathFox, 1 Mar 2019 @ 10:01am

        Re: Re:

        If I understand you correctly you say I would not be allowed to comment on the recent shutdown in the US by making a mash-up of Trump publicly demanding money for his wall followed by citing Abba:

        Money, money, money, should be funny in a rich man's world!

        Is it a desired result of copyright laws to forbid such commentary?

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

        • icon
          Thad (profile), 1 Mar 2019 @ 10:12am

          Re: Re: Re:

          Citing Abba -- as in, including the lyric with attribution, like you just did -- would be fine.

          A brief clip of the song, for example just the "Money, money, money, should be funny in a rich man's world!" part, would probably also qualify as fair use.

          Using the entire song would most likely not be.

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

          • identicon
            MathFox, 1 Mar 2019 @ 3:01pm

            Re: Re: Re: Re:

            A brief clip of the song, for example just the "Money, money, money, should be funny in a rich man's world!" part, would probably also qualify as fair use.

            Using the entire song would most likely not be.

            Using only one song would not be fun... It's far more artistic to medley-mix fragments of multiple songs with a sequence of Trump-utterances. :)

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

        • icon
          K`Tetch (profile), 1 Mar 2019 @ 9:26pm

          Re: Re: Re:

          Well, I could always sing it for you (I need the practice for a production of mama Mia later this month, we were going to do To Kill a Mockingbird, but not any more...
          instead they're weaponizing my voice to use against people who displease us, like an "Andrew Lloyd Webber who says Ni!"

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

      • identicon
        Bruce C., 1 Mar 2019 @ 10:02am

        Re: Re:

        Ascribing motivation is a tricky thing, even with the evidence of the hashtags in the tweet by Mills.

        That said, there's quite a history of politicians of all stripes getting zinged by bands and songwriters even before Twitter became a thing. Typically the bands are not politics-neutral when they ask pols to stop using their music, but the difference between a Twitter take-down and a traditional C&D letter to stop a campaign from using their music at their campaign rallies is one of methods, not a difference in outcome. From my POV a campaign rally is just as much protected political speech in a derivative presentation as a video mashup online.

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

        • icon
          Thad (profile), 1 Mar 2019 @ 10:14am

          Re: Re: Re:

          the difference between a Twitter take-down and a traditional C&D letter to stop a campaign from using their music at their campaign rallies is one of methods, not a difference in outcome.

          There's also a difference in legal heft. As Techdirt has noted many times in the past, usually artists requesting that politicians not use their songs at rallies don't have the legal leverage to make that request, because public performance rights are paid for through blanket licensing. (However, it's generally bad publicity to use a song an artist doesn't want you to use.)

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

  • identicon
    Anonymous Coward, 1 Mar 2019 @ 9:31am

    So even if you love REM and hate the President, if you believe in free speech, you should certainly be concerned about the use of copyright as a tool for outright censorship of speech someone didn't like.

    Opinions of bands and politicians aside, if they had said they took down the tweets because use of their content was unlicensed then it would have been fine and we would not be reading this article.

    The reason isn't important. This was done within the current law and there's nothing wrong with that. We can argue/discuss exactly how wrong copyright law is (and it is) there is nothing presently wrong with the discussed actions having been taken under the law.

    If you want to protect your speech from being censored due to copyright, don't include unlicensed material in your speech. I fail to see how ignoring this wisdom and reaping the consequences lay at the feet of the complainants.

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

    • identicon
      MathFox, 1 Mar 2019 @ 9:36am

      Fair Use?

      If you want to protect your speech from being censored due to copyright, don't include unlicensed material in your speech. I fail to see how ignoring this wisdom and reaping the consequences lay at the feet of the complainants.

      There is something called "Fair Use" in US law (copyright law in other countries has similar exceptions) that allow the use of copyrighted materials for commentary. You totally seem to neglect this concept.

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

      • icon
        Thad (profile), 1 Mar 2019 @ 9:46am

        Re: Fair Use?

        That's because that's not what "use for commentary" means.

        Use of a song "for criticism or commentary" means criticism or commentary of the song. It doesn't mean that using a song as part of a video criticizing or commenting on some unrelated topic is fair use.

        A reviewer excerpting Everybody Hurts to comment on the song would be fair use under the "criticism and commentary" test. Including the song in a video about something else is not.

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

        • icon
          Stephen T. Stone (profile), 1 Mar 2019 @ 10:25am

          Re: Re: Fair Use?

          It doesn't mean that using a song as part of a video criticizing or commenting on some unrelated topic is fair use.

          I would argue otherwise, so long as the usage was done in a manner meant to either bolster a point or act as a comedic punchline to a given point. To wit: In a video inspired by the “Lessons Animation Taught Us” series on YouTube, Select Screen’s “Mr. Freeze and Why We Love Sympathetic Villains” features a small bit¹ on the tone of the Batman: The Animated Series episode “Heart of Ice” that uses one bit of music from The Price is Right as a punchline to his point. Anyone who would attempt to argue that said usage is not Fair Use would have an uphill climb in convincing me otherwise.

          ¹ — The bit in question, although I do recommend watching the video as a whole: https://youtu.be/0V956de8QyM?t=452

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

          • icon
            Thad (profile), 1 Mar 2019 @ 10:46am

            Re: Re: Re: Fair Use?

            I agree that's fair use, but not because of the "for criticism and commentary" test . I'd look more to the "Amount and Substantiality of the Portion Taken" factor. (And indeed, it might be subject to "de minimis" protection and not require any fair use analysis at all.)

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

            • icon
              Stephen T. Stone (profile), 1 Mar 2019 @ 10:55am

              I'd look more to the "Amount and Substantiality of the Portion Taken" factor.

              The amount of the Price is Right music cue used in that bit was literally 100%.

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

              • icon
                Thad (profile), 1 Mar 2019 @ 11:40am

                Re:

                Sorry, haven't had a chance to watch it so I can't speak to specifics. I'm not entirely sure how copyright pertains to a short game show music cue, though if it's short enough then I'd suspect de minimis protection applies and no fair use analysis is required.

                Failing that, the "purpose and character" and "effect of use on potential market" tests certainly seem to break in favor of fair use. ("Criticism and commentary" is a subset of "purpose and character", but I still don't think it applies here.)

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

        • identicon
          Anonymous Coward, 1 Mar 2019 @ 10:44am

          Re: Re: Fair Use?

          If it falls within the bounds of certain exceptions (fair use, parody/satire, mechanical licensing, etc), you get to do it whether or not the copyright owner likes it.
          If it does not fall within the bounds of these exceptions, you get to do it if and only if the copyright owner lets you do it. The fact that the copyright owner is more likely to let you do it if he approves of your message is simply a fact of life.

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

      • identicon
        Anonymous Coward, 1 Mar 2019 @ 9:56am

        Re: Fair Use?

        He totally neglects this concept because it doesn't apply here. This isn't using copyrighted materials for commentary, it's using a copyrighted work as an emotional backdrop to commentary. If the song was removed and, say, "born to run" played in its place, what would have changed in the commentary?

        So on the one hand, the use was likely infringing as it was just dropped in as a backing track without permission.

        On the other hand, THIS wasn't the reason the complaint was issued: the complaint was issued because REM doesn't want to be associated with stupid political commentary that they are vehemently opposed to. We know this because band members said so.

        In summary:

        Mike: Don't misuse tools of speech just because you can; it sets a bad precedent no matter how morally right it may be.

        AC: Don't do stupid things with other people's IP and expect the law to be ignored.

        MathFox: Hey! What about free speech?

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

  • identicon
    Comboman, 1 Mar 2019 @ 9:57am

    Use the tools you have.

    Copyright law is bad and needs to be changed, no doubt about that. But until that happens, it is a tool that can be used for good or for evil. Would you prefer it only be used for evil?

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

    • identicon
      TFG, 1 Mar 2019 @ 10:01am

      Re: Use the tools you have.

      The idea here is that REM has used it for evil. It was done to suppress political speech they don't like - that's censorious via a legal process, which I would consider to be, if we are applying terms of good and evil to the process, evil.

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

  • identicon
    Anonymous Coward, 1 Mar 2019 @ 11:05am

    This is more a right-to-publicity issue rather than a copyright issue.

    Of course, Trump could have paid someone to make a cover of the song and used that instead.

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

  • identicon
    Anonymous Coward, 1 Mar 2019 @ 11:06am

    John "Cougar" Mellencamp did the same thing when Reagan tried to use Pink Houses.

    This is nothing new.

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

  • identicon
    Châu, 1 Mar 2019 @ 11:49am

    President order

    Can Mr. Trump can use his president power for over ride, allow tweet again?

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

  • identicon
    Anonymous Coward, 1 Mar 2019 @ 1:00pm

    Can I cheer this if I like the president and enjoy seeing copyright abused in a way likely to draw a lot of attention? If anything can promote reforms to prevent these abuses, it will be very public use of copyright for situations like this one, where it is very clear that the use is abusive, rather than in service of the stated goals of copyright.

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

    • identicon
      TFG, 1 Mar 2019 @ 2:19pm

      Re:

      You can cheer what you like - I disagree with you on the president, but I agree with you on curtailing copyright abuse.

      Getting into the semantics of things, "cheering this" would have the basic connotation and understanding of "supporting the actions of REM in this case" - if your aim is to curtail abuse of copyright, it be more appropriate to simply say "I am glad this occurred as it draws a light on the abuses of the copyright system" whiiiiiich I wouldn't call "cheering this" but rather "cheering awareness of the abuse."

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

  • identicon
    Anonymous Coward, 1 Mar 2019 @ 3:10pm

    I hope Trump throws a temper tantrum

    Resulting in the destruction of copyright enforcement

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

  • identicon
    Glenn, 1 Mar 2019 @ 3:36pm

    If someone wants to use your property (by law), they'll have to pay for permission just like everyone else--right of refusal. It's not actually censorship to not want to be associated with things that you don't approve of--political or otherwise.

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

    • icon
      That One Guy (profile), 1 Mar 2019 @ 5:22pm

      Re:

      Not always. When it comes to copyright there are times when people don't have to pay(fair use), and/or when even if you don't support the person/agenda the fact that they've paid means you get no choice in the manner(might have the name wrong but I believe it's 'performance license').

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

  • identicon
    Anonymous Coward, 2 Mar 2019 @ 11:03pm

    Back to the Main Point of the Article

    Back when I was young math teacher, a colleague shared with me her mnemonic for teaching high school students how the signs (positive/negative) of products work. Her mnemonic was:

    1) when good things happen to good people, that's good...
    (positive times positive is positive);

    2) when good things happen to bad people, that's bad...
    (positive times negative is negative);

    3) when bad things happen to good people, that's bad...
    (negative times positive is negative);

    4) when bad things happen to bad people, that's good...
    (negative times negative is positive).

    Cute, seemingly innoccuous, and easy for impressionable youth to internalize. Is it really any wonder that people misbehave and react to the misbehavior of others as they do?

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

  • identicon
    Rekrul, 4 Mar 2019 @ 8:41am

    Is it OK to celebrate the fact that politicians who have historically turned a blind eye to the abuses of copyright are now suffering those abuses themselves?

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


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