Universal Music Claims Copyright Over Newly Public Domain 'Yes! We Have No Bananas'

from the yes,-we-have-no-public-domain dept

As you're probably aware, on January 1st of this year, we actually had a public domain day in the US for the first time in over two decades. Prior to that Congress (with the help of Hollywood lobbyists) had worked to continually extend copyright law whenever new works were due to go into the public domain. These extensions still seem to violate the spirit of the copyright clause in the Constitution, given that it is granting Congress permission to create such monopolies only so much as those monopoly rights "promote the progress." Any reasonable interpretation of that clause means that copyright law should be allowed in cases where it creates the incentive to create. But it's difficult to see how extending copyright law decades after the work has been created does anything to incentivize that work in the first place.

Nonetheless, this year, Hollywood finally realized that it was probably too much to ask to get another copyright term extension and finally let works from 1923 enter the public domain. One of the signature works of the public domain class of 1923 was the song Yes! We Have No Bananas by composers Irving Cohn and Frank Silver. As of January 1st, anyone was free to make use of that song. Indeed, in our own Public Domain Game Jam competition, we actually had not one, but two separate game entries based on "Yes! We Have No Bananas."

But, of course, even if Hollywood wasn't going to push for term extension, that doesn't mean it won't do what it always does, and pull other levers. Glenn Fleishman had posted a video of the song to YouTube in celebration of it entering the public domain earlier this year. He even titled it "Yes! We Have No Bananas, now in the public domain." The video is of him and friends/family singing it at a New Year's Eve Party:

However, that video has now been "claimed" by Universal Music and various subsidiaries, meaning that they could "monetize" it or force it offline, despite them literally having no rights to speak of.

YouTube's statement is fairly vague in its own right:

Dear Glenn Fleishman,

Your video "Yes! We Have No Bananas, now in the public domain", may have content that is owned or licensed by UMPG Publishing, Shapiro Bernstein, EMI Music Publishing, and UMPI, but it's still available on YouTube! In some cases, ads may appear next to it.

If this is your performance of a 3rd party song then you can still make money from this video. Click here to change your monetization settings.

This claim is not penalizing your account status. Visit your Copyright Notice page for more details on the policy applied to your video.

- The YouTube Team

From that, it appears to be the publishing arms of Universal Music, meaning that it's a claim on the underlying composition itself. And that is, definitively, in the public domain. At first I thought maybe they'd be claiming the specific sound recording, which might have been made at a later date, but since this is Glenn's own recording, and all of the listed companies are from the publishing (composition) side of things, it appears that it's just possible (if not likely) that Universal never took this work off its own books (perhaps it has no method of removing public domain material).

What's possibly troubling is that YouTube doesn't even seem to offer up an option for you to point out that the work is in the public domain, and even if these entities might have once had a claim on the song, a few months back the "for limited times" part of the Constitution finally kicked in and they have no legitimate claim any more.

Filed Under: copyright, copyright claim, ownership society, public domain, yes we have no bananas, youtube
Companies: universal music, youtube


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  • icon
    got_runs? (profile), 14 Nov 2019 @ 9:24am

    'False Equivalence'

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  • icon
    Toom1275 (profile), 14 Nov 2019 @ 9:42am

    And this is the kind of thing that is accurately described by the term "copyright theft" - using copyright as an excuse to steal the work of others.

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    • identicon
      Bobvious, 14 Nov 2019 @ 12:58pm

      Re: Yes! We have no morals.

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

      • icon
        Wendy Cockcroft (profile), 15 Nov 2019 @ 5:46am

        Re: Re: Yes! We have no morals.

        Indeed. Next time they shoot their mouths off about it we can point this incident out to them as an example of actual copyright theft.

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        • icon
          PaulT (profile), 15 Nov 2019 @ 6:22am

          Re: Re: Re: Yes! We have no morals.

          Pointless, I'm afraid. In my years of having these conversations, I've seen them tie themselves in knots to explain how literal documented theft from artists, be it copyright or financial, is OK and nowhere near as bad as the imagined losses from piracy. Never have I seen one so much as admit the possibility that what a major corporation does relating to copyright is actually wrong (unless that corporation is Google, of course).

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          • icon
            Wendy Cockcroft (profile), 15 Nov 2019 @ 7:37am

            Re: Re: Re: Re: Yes! We have no morals.

            True, but the squirming doesn't tend to play well in front of an audience. When people see how crooked they are they might change their minds about supporting them. I like the idea of being able to provide such conversations as evidence to my MP next time I complain to her about copyright overreach.

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  • identicon
    Anonymous Coward, 14 Nov 2019 @ 9:42am

    So Universal Music is now in the actual "Copyright theft" business?

    That is, they are attempting to fraudulently claim copyright over something for which the copyright would otherwise be indisputably assigned to someone else.

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    • icon
      Bergman (profile), 17 Nov 2019 @ 12:46pm

      Re:

      Makes me wonder if any member of the general public -- the owners of the rights to the public domain -- now has standing to sue Universal Music for a copyright violation?

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  • identicon
    Anonymous Coward, 14 Nov 2019 @ 9:46am

    Pull up a chair and grab some popcorn when Elvis's work enters the public domain.

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  • icon
    OldMugwump (profile), 14 Nov 2019 @ 9:46am

    Are baseless legal threats allowed?

    I'm not a lawyer, but is there any basis on which to sue these people for making obviously baseless legal threats?

    Or go after their attorneys for ethics violations via the Bar Association?

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    • identicon
      Anonymous Coward, 14 Nov 2019 @ 10:19am

      Re: Are baseless legal threats allowed?

      … is there any basis on which to sue these people…?

      This is America, buddy. You can sue anyone for anything — anytime! Ain't this country great!

       

      How much cash you got?

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    • identicon
      Anonymous Coward, 14 Nov 2019 @ 1:08pm

      Re: Are baseless legal threats allowed?

      There's no baseless legal threat made here; UMG complained to YouTube, a private entity, who decided to give UMG the advertising revenues for some third party's performance.

      Which means that any lawsuit would be by Glenn against YouTube, and possibly YouTube against UMG, both for breach of contract.

      The performance is copyright by Glenn, used with permission by YouTube, and YouTube is ignoring the conditions of that agreement because a partner with lots of money asked it to.

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    • icon
      PaulT (profile), 15 Nov 2019 @ 1:01am

      Re: Are baseless legal threats allowed?

      "is there any basis on which to sue these people for making obviously baseless legal threats?"

      First, there doesn't seem to be any legal threat here. It's just a note from YouTube saying that because the listed parties claim copyright, ads might appear on the video to allow them to monetise it. In fact, it seems to be the opposite of a threat, since the notice specifically states that there might be options to monetise the video themselves.

      Second, if there was a legal threat, theoretically the DMCA means that they would be committing perjury by claiming copyright ownership and therefore there would be legal options to take. They're just rarely taken because even when the lie is as obvious as this, it's rarely worth the time and money to pursue.

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      • icon
        Wendy Cockcroft (profile), 15 Nov 2019 @ 5:49am

        Re: Re: Are baseless legal threats allowed?

        I believe it's worth going after UMG for fraud. Needless to say they will claim 'twas but an honest mistake, but if the only way to keep them honest is to report them for fraud every time they commit it, they will have to mend their ways.

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        • icon
          PaulT (profile), 15 Nov 2019 @ 6:25am

          Re: Re: Re: Are baseless legal threats allowed?

          "I believe it's worth going after UMG for fraud"

          I somehow doubt that will be worth the effort. At best, this will be written off as a clerical error where it wasn't removed from the right database at the right time, and how can they not be expected to make the occasional error with the volume of copyrighted titles they genuinely need to protect, your honour?

          The only way for this to stop is for the laws to side with the innocent victims rather than the major corporate aggressors, and that's not happening any time in the near future.

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          • icon
            Wendy Cockcroft (profile), 15 Nov 2019 @ 7:40am

            Re: Re: Re: Re: Are baseless legal threats allowed?

            True, but if we keep a record of each "clerical error" that we see, we can build a strong case for politicians to make laws that side with innocent victims against corporate aggressors.

            As a side note, I've had experience of actual left wingers siding with copyright because the sweat of the brow argument appeals to them. We need to approach this in accordance with the prejudices of the people we're dealing with. On the right: law and order. On the left: it's theft from creators and the public.

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            • identicon
              Anonymous Coward, 15 Nov 2019 @ 8:25am

              Re: Re: Re: Re: Re: Are baseless legal threats allowed?

              On the left: it's theft from creators and the public.

              Point out to those people that most of the theft is via Hollywood accounting by the studios and labels, along with theft from the public by attacking the public domain by abusing the DMCA and content ID, which also steal income from those who do the actual creating.

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              • icon
                Wendy Cockcroft (profile), 18 Nov 2019 @ 5:28am

                Re: Re: Re: Re: Re: Re: Are baseless legal threats allowed?

                I do. It falls on deaf ears, I'm afraid. The man I spoke to was such an epic demagogue he wasn't interested in truth, just in confirming his bias.

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  • identicon
    Anonymous Coward, 14 Nov 2019 @ 9:48am

    might have once had a claim on the song, a few months back the "for limited times" part of the Constitution finally kicked in and they have no legitimate claim any more.

    The message says it "may" have content that is owned or licensed by them, not that it does. It doesn't mention copyright law at all. They might still have a valid "claim" by private agreement with YouTube (as I recall, actual DMCA claims have a different message). The Constitution doesn't limit those agreements.

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    • icon
      Stephen T. Stone (profile), 14 Nov 2019 @ 9:50am

      The video doesn’t have content that is owned by Universal in any way. They have no business sending a copyright claim on public domain material, regardless of whatever agreement they may have with YouTube.

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      • identicon
        Anonymous Coward, 14 Nov 2019 @ 10:14am

        Re:

        They have no business sending a copyright claim on public domain material

        But did they? The message doesn't say "copyright" anywhere, nor does it say anyone claimed ownership. Only that there might be ownership, with no statement as to whether this is relevant to what happened.

        The lack of specificity is one problem. YouTube granting abilities with no basis in law, only to the largest companies, is another.

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        • icon
          James Burkhardt (profile), 14 Nov 2019 @ 10:27am

          Re: Re:

          By discussing content possibly owned by a 3rd party, and that ads would run next to the content in the same paragraph, they imply that the ads are connected to the ownership. That Ownership of audiovisial content is known as copyright. A reasonable person can infer that copyright is involved.

          This appears to be a content ID style claim, which does not require a proactive claim. Its very automated. But its still about the rights to use material, the copyrights.

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          • identicon
            Anonymous Coward, 14 Nov 2019 @ 10:55am

            Re: Re: Re:

            A reasonable person can infer that copyright is involved.

            Yes, of course, and they'd infer that the named party made the complaint. But nothing actually says that. Could a user successfully claim standing to sue someone over this, or win if they did? YouTube (and the big copyright holders) all have lots of lawyers and PR people, so I find it hard to believe the message is vague by accident.

            This appears to be a content ID style claim, which does not require a proactive claim. Its very automated. But its still about the rights to use material, the copyrights.

            Kind of? That was the basis for the creation of Content ID, but a Content ID claim isn't a copyright claim per se. One can't defend against it by claiming "fair use" for example. If YouTube disallowed Content ID claims after something entered the public domain, it would only be due to their generosity and not any legal requirement (AFAIK).

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            • icon
              Stephen T. Stone (profile), 14 Nov 2019 @ 11:11am

              Could a user successfully claim standing to sue someone over this, or win if they did?

              They could claim that their work, which includes public domain work not owned by Universal, had its copyright infringed upon by Universal when the company claimed at least partial copyright on the video. Whether the argument would work in court is a tougher question to answer.

              I find it hard to believe the message is vague by accident.

              Oh, I'm sure it is vague on purpose. But that makes it bullshit. YouTube should make 100% clear who made the claim, what they're claiming is theirs, and whether the claim can be appealed through either YouTube or (via a DMCA counternotice) the courts.

              a Content ID claim isn't a copyright claim per se

              That's bullshit and you damn well know it. The whole reason ContentID exists is to enforce copyrights. Any video snagged by a ContentID claim is, without exception, having "you violated my copyrights" called on it by whatever company is associated with the claim.

              If YouTube disallowed Content ID claims after something entered the public domain, it would only be due to their generosity and not any legal requirement

              Then YouTube needs to start giving, lest they end up in a position to help corporations repeal the goddamn public domain.

              (BTW, I do apologize if I come off as aggressive and confrontational towards you; I'm more upset about the situation with YouTube/Universal than with what you’re saying.)

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              • identicon
                Anonymous Coward, 14 Nov 2019 @ 11:33am

                Section 106 [was Re: ]

                their work … had its copyright infringed upon by Universal

                Please go look carefully at 17 USC § 106, and then explain specifically which of the six enumerated rights you allege Universal is infringing upon.

                § 106 — (1) thru (6). Which one(s)?

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                • icon
                  Stephen T. Stone (profile), 14 Nov 2019 @ 11:56am

                  By making a copyright claim on the video, Universal is arguably interfering with the user’s right to display the copyrighted work publicly in concordance with 17 USC § 106 (5). Because Universal Music made the claim, 17 USC § 106 (6) could also come into play. The song itself may be public domain, but a specific performance of it is not. And since Universal Music doesn’t/can’t hold the copyright on the song, it can’t legally claim that the video is an illegal derivative work or that the users uploaded an unauthorized copy of the song.

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                  • identicon
                    Anonymous Coward, 14 Nov 2019 @ 12:20pm

                    stripping the 'subject:' like that is just gratuitously rude

                    Universal is arguably interfering… §106(5) …§106(6)

                    Let's take these in reverse order.

                    As far as the §106(6) claim goes, please look at the definition of “sound recordings” in 17 USC § 101 and pay particular attention to the text:

                    but not including the sounds accompanying a motion picture or other audiovisual work

                    (You may also conveniently reach the definition of “sound recording” through the earlier link to §106. Just click on the underlined term.)

                     

                    That leaves §106(5). Do you allege that Universal is itself, in any way, displaying the video publicly?

                     

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                    • icon
                      Stephen T. Stone (profile), 14 Nov 2019 @ 12:59pm

                      I allege that Universal is, in claiming copyright over the video, interfering with the public display of the video. Even if the video is still viewable, Universal claims control over its copyright at least in part, which means it could ask for the video to be pulled at any time. Control over whether the video can/should be displayed must belong to the copyright holder, and that is not Universal. Thus, Universal is infringing upon the legal right of the YouTube user to publicly display the video as they see fit.

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                      • identicon
                        Anonymous Coward, 14 Nov 2019 @ 1:12pm

                        Re:

                        I think you'll find that while this feels like it should be true, there's no actual case law that can be pointed to to support this theory. What's been breached here is contract law, not copyright law. And the breached contracts are between the user and YouTube, and between YouTube and Universal -- there's no direct connection from the user to Universal. YouTube is the one at fault, and they can sue upstream to recover damages if they want.

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                        • icon
                          Wendy Cockcroft (profile), 15 Nov 2019 @ 5:52am

                          Re: Re:

                          But if Universal are claiming copyright infringement, they're committing fraud, aren't they?

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                          • identicon
                            Anonymous Coward, 18 Nov 2019 @ 7:20pm

                            Re: Re: Re:

                            Funny how copyright enforcement overstepping bounds has to be permitted because no case law of copyright law misbehaving exists - but the moment something Aereo appears we all have to kill it with fire because the MPAA said so...

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                      • identicon
                        Anonymous Coward, 14 Nov 2019 @ 1:18pm

                        Twiqbal [was Re: ]

                        I allege that Universal is … interfering

                        To survive a motion to dismiss under FRCP 12(b)(6) a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . .

                        You're not alleging that Universal is itself displaying the video publicly.

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                        • icon
                          Stephen T. Stone (profile), 14 Nov 2019 @ 1:40pm

                          You're not alleging that Universal is itself displaying the video publicly.

                          I am. Universal claims copyright over part of the video. It doesn’t actually have (and can never have) that copyright. Its decision to leave the video up with that copyright claim intact, then, is an illegal act of displaying the video publicly without prior consent of the video’s copyright holder. Even if the copyright holder wants to display the video publicly, only they should have the right to decide that.

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                          • identicon
                            Anonymous Coward, 14 Nov 2019 @ 2:32pm

                            Re: Re: Twiqbal [was Re: ]

                            [Seems the threading got messed up on my comment down below. Sorry. Reposting in thread.]

                             

                                      You're not alleging that Universal is itself displaying the video publicly.

                            I am.

                            A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”

                            Its decision to leave the video up

                            While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

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                • identicon
                  Anonymous Coward, 14 Nov 2019 @ 1:36pm

                  Re: Section 106 [was Re: ]

                  No need. Claiming copyright on something you don't have it on is fraud.

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                  • icon
                    Samuel Abram (profile), 15 Nov 2019 @ 6:32am

                    Re: Re: Section 106 [was Re: ]

                    Claiming copyright on something you don't have it on is fraud.

                    copyfraud to be precise

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                    • identicon
                      Anonymous Coward, 15 Nov 2019 @ 7:10am

                      Copyfraud [was Re: Re: Re: Section 106]

                      … to be precise

                      If you incorporate a fraud claim into the same complaint as Stone's §106 infringement claim(s)… …then you're in federal court.

                      In federal court, FRCP Rule 9(b) governs:

                      Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

                      So, it's not so much needed to be “precise” — as it's necessary to be “particular”.

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              • identicon
                Anonymous Coward, 14 Nov 2019 @ 11:51am

                Re:

                That's bullshit and you damn well know it.

                Of course it is, but that doesn't mean it's not true.

                Any video snagged by a ContentID claim is, without exception, having "you violated my copyrights" called on it by whatever company is associated with the claim.

                Yes, except that they're making this claim outside the legal system. Falsely claiming copyright would be legally actionable by the victim whose stuff got taken down; but falsely clicking whatever content-ID boxes Youtube gives them? It's not so clear. That's a private agreement. Even assuming it's a "copyright claim" for an extant copyright, has a victim ever successfully claimed any defense like fair use? A proper DMCA process, for all its faults, at least has counter-notices; as Mike points out, YouTube isn't providing any option to appeal within their system.

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                • icon
                  Stephen T. Stone (profile), 14 Nov 2019 @ 12:03pm

                  they're making this claim outside the legal system

                  They’re still relying on a private agreement that is based around the legal system (i.e., copyright).

                  Falsely claiming copyright would be legally actionable by the victim whose stuff got taken down; but falsely clicking whatever content-ID boxes Youtube gives them? It's not so clear.

                  Something tells me Universal, or any other company for that matter, would not want the actionability of a false ContentID claim tested in the courts—especially since ContentID, as I just pointed out, still relies on the copyright system and a blatantly false copyright claim like this one miiiiiiiiiiight not sit well with some judges.

                  Even assuming it's a "copyright claim" for an extant copyright, has a victim ever successfully claimed any defense like fair use?

                  Would it count if someone beat a DMCA notice with a counternotice that claimed Fair Use? Because I did that once.

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                  • identicon
                    Anonymous Coward, 14 Nov 2019 @ 12:47pm

                    Re:

                    Would it count if someone beat a DMCA notice with a counternotice that claimed Fair Use? Because I did that once.

                    No, I'm specifically looking for evidence that someone has used copyright laws against an extrajudicial process like ContentID.

                    They’re still relying on a private agreement that is based around the legal system (i.e., copyright).

                    Based "around", maybe. But is it limited by it?

                    The DMCA always had a counternotice process. Case law now requires people to consider fair use before sending DMCA takedowns. But do you know how the ContentID process works, or what the agreements entail? I don't; I can only guess (and agree that copyright holders won't want this tested in court). Is it "I certify that a copyright exists, I have proper permission to enforce it, I've considered fair use as required by case law, and I consider this content infringing and want it taken down?" Or is it just a "make this thing go away now" button?

                    (The latter would support a very cynical interpretation of YouTube saying it "might" contain content copyrighted by whomever. A more generous interpretation of that weasel word would be that YouTube simply isn't asserting they've validated the claim.)

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                    • icon
                      Stephen T. Stone (profile), 14 Nov 2019 @ 1:05pm

                      But is it limited by it?

                      By relying on copyright information for ContentID, YouTube is essentially using the same standards as a DMCA, albeit without the presumed weight of that law. YouTube can’t — or shouldn’t, at any rate — allow someone to use ContentID as a way of forcing offline content to which they don’t hold the copyrights. That includes public domain material.

                      Is it "I certify that a copyright exists, I have proper permission to enforce it, I've considered fair use as required by case law, and I consider this content infringing and want it taken down?" Or is it just a "make this thing go away now" button?

                      Yes.

                      A more generous interpretation of that weasel word would be that YouTube simply isn't asserting they've validated the claim.

                      And that should tell you something about both YouTube in general and ContentID in particular.

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                      • identicon
                        Anonymous Coward, 14 Nov 2019 @ 5:57pm

                        Re:

                        And that should tell you something about both YouTube in general and ContentID in particular.

                        I'll bet that this fuckup won't get counted as one of three strikes to get Universal kicked out of the ContentID program.

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            • icon
              Wyrm (profile), 14 Nov 2019 @ 1:08pm

              Re: Re: Re: Re:

              Could a user successfully claim standing to sue someone over this, or win if they did?

              That is the big flaw of copyright law.
              In theory, public domain works belong to the public, so anyone should be able to sue when works are illegitimately claimed.
              In practice, judges have interpreted public domain works as belonging to nobody, hence no one has standing to sue in such a case.

              There are several problems with this interpretation, of course. And we can only hope that this will be either explicitly fixed in law, or re-interpreted by a different court, at worst leading to the Supreme Court to fix a split.

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              • identicon
                Anonymous Coward, 14 Nov 2019 @ 6:02pm

                Re: Re: Re: Re: Re:

                In practice, judges have interpreted public domain works as belonging to nobody, hence no one has standing to sue in such a case.

                There's one significant way to gain standing: build upon the public domain work, and copyright your result. Disney's business model was based on this.

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                • icon
                  Samuel Abram (profile), 15 Nov 2019 @ 9:33am

                  Re: Re: Re: Re: Re: Re:

                  build upon the public domain work, and copyright your result. Disney's business model was based on this.

                  So was Nintendo. They were able to make Donkey Kong because King Kong was in the public domain (the film isn’t but the novelization of the film was never copyrighted). A judge agreed and we are blessed with the Ape’s presence.

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        • icon
          Stephen T. Stone (profile), 14 Nov 2019 @ 10:31am

          The message doesn't say "copyright" anywhere, nor does it say anyone claimed ownership. Only that there might be ownership, with no statement as to whether this is relevant to what happened.

          We can infer this from the fact that Universal would not have sent a claim for anything other than copyright. “Might be ownership” implies that there could be a copyright on the song, despite the fact that it can’t be under copyright because it is public domain. Universal is in the wrong. YouTube is in the wrong. Don’t try to soften the blow by excusing clear bullshit.

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          • identicon
            Anonymous Coward, 14 Nov 2019 @ 10:58am

            Re:

            Don’t try to soften the blow by excusing clear bullshit.

            This isn't meant to soften anything, it's meant to point out that YouTube is, to the detriment of its users and the public, operating in a gray area not governed by law. Your inferences are reasonable and expected, but YouTube looks to be going out of its way to not make any specific claim that could be disputed. It is bullshit.

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          • identicon
            Anonymous Coward, 14 Nov 2019 @ 3:07pm

            Re:

            Youtube has no obligation to host your content. Instead of bitching about it, why don't you start your own platform and show us how it is done?

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            • identicon
              Anonymous Coward, 14 Nov 2019 @ 3:48pm

              Re: Re:

              probably for a similar reason that your here criticizing their choices, instead of making other humans that would make choices you think are better (or what ever it is that you think would be a preferable action to complaining about it)

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            • icon
              Stephen T. Stone (profile), 14 Nov 2019 @ 7:42pm

              Youtube has no obligation to host your content.

              And I have no obligation to shut the fuck up whenever it makes a bad decision about the content it is hosting. You can’t make me STFU, you won’t make me STFU, and you’re a gotdamn fool for trying to make me STFU.

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              • identicon
                Anonymous Coward, 15 Nov 2019 @ 12:16am

                Re:

                Did someone tell you to shut up that I don't see?

                Looks like impotent rage when I can't see where you were told to shut up.

                Someone saying to stop bitching isn't telling you to shut up. Unless all you do is bitch, and tell others to shut up, then I could see you taking it that way.

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

            • identicon
              Anonymous Coward, 15 Nov 2019 @ 12:02am

              Re: Re:

              One more in a long line of straw men hastily built and set on fire.

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

        • identicon
          Anonymous Coward, 14 Nov 2019 @ 11:50pm

          Re: Re:

          "Ownership" is only established via copyright. What even are you talking about?

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

          • icon
            Wendy Cockcroft (profile), 15 Nov 2019 @ 5:58am

            Re: Re: Re:

            Here's the problem: copyright is automatically assigned to works in a fixed medium, i.e. a recording.

            In order to assert it, however, it's got to be registered so you can prove you own it. This is why the current system sucks so much: it assumes that everyone owns works and makes no room for the public domain, which it treats as an anomaly or problem to be solved. The actual problem to be solved is copyright.

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

        • identicon
          Anonymous Coward, 16 Nov 2019 @ 11:57pm

          Re: Re:

          "If this is your performance of a 3rd party song then you can still make money from this video. Click here to change your monetization settings."

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

          • identicon
            Anonymous Coward, 17 Nov 2019 @ 2:49am

            Re: Re: Re:

            "If this is your performance of a 3rd party song…

            Even in threaded view (let alone in chronological view), I have no idea exactly what you're replying to or why. With insufficient context, whatever point you're trying to make here is totally lost.

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

      • identicon
        Anonymous Coward, 14 Nov 2019 @ 2:27pm

        Re:

        You could claim you were harmed by having to see the ad when you watch the video. Then if enough people file a claim against universal in small claims courts all over the country, Universal will win if they show up, but it will cost universal a lot of money and bad press.

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

        • identicon
          Anonymous Coward, 14 Nov 2019 @ 6:12pm

          Re: Re:

          Then if enough people file a claim against universal in small claims courts all over the country, Universal will win if they show up, but it will cost universal a lot of money

          The idea that comes to mind here is that one should not start a fight with someone who buys ink by the barrel. They have lots of lawyers, the amount of money would be small by their standards, and they'd probably use Hollywood Accounting to push those costs onto whoever was dumb enough to take net points anyway.

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

    • identicon
      Bruce C., 14 Nov 2019 @ 9:55am

      Re:

      Wow, that's an ugly thought: Youtube and former copyright holders sign agreements that no performances of material under expired copyright will be allowed on the platform without monetization. Heck even original works by Youtube users could be padded with advertising, just under Youtube's TOS. The "do not monetize" option is not required under law.

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

      • identicon
        Anonymous Coward, 14 Nov 2019 @ 10:17am

        Re: Re:

        I don't think any outside parties know what those agreements say, but we know YouTube has private agreements. I doubt that YouTube requires copyright claimants to note the date of copyright expiry so YouTube can reinstate the videos at that time. Even the DMCA doesn't require that (or any evidence of copyright registration).

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

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 10:42am

      Re:

      "The message says it "may" have content that is owned or licensed by them"

      It also "may" have turned him into a newt.

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

      • identicon
        Bobvious, 14 Nov 2019 @ 12:47pm

        Re: Re:

        I read all of that, but nothing in it leads me to believe that in future we'll say it "got better".

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

      • identicon
        Bruce C., 14 Nov 2019 @ 12:58pm

        Re: Re:

        No, what I was saying is that, regardless of copyright, Youtube is under no obligation to share ad revenue with the people who post any video to Youtube, and there is no legal requirement for them to offer an opt-out option for people who don't want ads linked to their videos. There may be features in the platform or items in the current Terms of Service that allow user to block advertising, but Youtube can change those unilaterally, and all you can do as a user is to delete the video.

        From Youtube's POV it's a bigger problem when the advertisers don't want videos linked to their ads.

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

        • identicon
          Anonymous Coward, 14 Nov 2019 @ 1:19pm

          Re: Re: Re:

          "From Youtube's POV it's a bigger problem when the advertisers don't want videos linked to their ads."

          There are some very imaginative people out there, has anyone tried this? It could be very funny.

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

      • icon
        Glenn Fleishman (profile), 15 Nov 2019 @ 12:16pm

        Re: Re:

        I got better.

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

      • icon
        Bergman (profile), 17 Nov 2019 @ 12:45pm

        Re: Re:

        How can something only "may" contain violations, when filing a copyright notice can only lawfully be done (without committing perjury) if you actually have knowledge that it does contain a violation?

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

        • identicon
          Anonymous Coward, 17 Nov 2019 @ 1:43pm

          Re: Re: Re:

          … filing a copyright notice can only lawfully be done (without committing perjury)…

          That's not actually what the law says.

          Rather, the DMCA, which is enacted into positive law at 17 USC § 512(c), grants a safe harbor to service providers against claims of “infringement of copyright by reason of the storage at the direction of a user”. That DMCA safe harbor has conditions attached to it. Those conditions include sub-paragraph (c)(1)(C), which says that the service provider must respond expeditiously to “notification of claimed infringement as described in paragraph (3)”, in order to remain within the DMCA safe harbor.

          Paragraph (3), captioned “Elements of notification”, includes sub-paragraph (3)(A). That paragraph starts out—

          To be effective under this subsection, a notification of claimed infringement must…

          Then, under clause (3)(A)(vi), the notification, in order to be effective, must substantially include—

          A statement . . . under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

          The sum of all this, is that if the notification isn't substantially compliant with clause (3)(A)(vi), then clause(3)(B)(i) provides that the notification “shall not be considered under paragraph (1)(A)”. In other words, if the notification simply fails to include the “under penalty of perjury” statement, then the notification just doesn't puncture the service provider's DMCA safe harbor.

          Otoh, if the notification does substantially comply with clause (3)(A)(vi), and includes the statement “under penalty of perjury”, then the statement still doesn't say very much.

          All in all, a copyright notice can be sent without “penalty of perjury.”

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

    • icon
      PaulT (profile), 15 Nov 2019 @ 1:03am

      Re:

      "The message says it "may" have content that is owned or licensed by them, not that it does"

      That just means that the parties listen claimed copyright and YouTube doesn't want to state specifics in case that claim turns out to be wrong.

      "The Constitution doesn't limit those agreements."

      However, it is the thing that allows the copyright rules that those agreements are based on.

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

  • identicon
    David, 14 Nov 2019 @ 9:57am

    So?

    Do other technical copyright protection measures magically disappear once copyrights run out? No, they don't. So why should an online flagging system be disadvantaged compared to offline methods of thwarting the public's conditional rights to copy?

    To those who have problems with shitting on the Constitution, let me quote the U.S. government position on things like that: "I have news for everybody: get over it!".

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

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 1:23pm

      Re: So?

      "Do other technical copyright protection measures magically disappear once copyrights run out?"

      How many "copyrights" are there on one single creation? What are these other things "technical" to which you refer? I thought that when cpoyright runs out .. that's it - public domain for you. However, that does not seem to be the case even though that is what the law says - or so I'm told.

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

      • identicon
        Anonymous Coward, 14 Nov 2019 @ 2:07pm

        Re: Re: So?

        What are these other things "technical" to which you refer?

        DRM, as breaking even if the protected work is in the public domain is a crime.

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

        • identicon
          Anonymous Coward, 14 Nov 2019 @ 6:21pm

          Re: Re: Re: So?

          DRM, as breaking even if the protected work is in the public domain is a crime.

          It's only a crime to break DRM applied to copyrighted works. The catch is that this may be the same DRM applied to public domain stuff. It's easy to write a tool that breaks DRM on all DVDs, and basically impossible to write one that breaks the DRM on only the public-domain ones. In practice, the tool creators will need to be very careful with affiliations and marketing. Partner with a library and never give any hint that it could be used for illegal copying.

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

        • identicon
          Anonymous Coward, 15 Nov 2019 @ 10:11am

          Re: Re: Re: So?

          Is this crime of breaking drm sort of like removing the tag from your mattress?

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

    • icon
      That One Guy (profile), 14 Nov 2019 @ 2:28pm

      Re: So?

      To those who have problems with shitting on the Constitution, let me quote the U.S. government position on things like that: "I have news for everybody: get over it!".

      Gonna have to go with 'no' there, ignoring blatant corruption just encourages more of it.

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

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 10:10am

    it appears that it's just possible (if not likely) that Universal never took this work off its own books (perhaps it has no method of removing public domain material)

    What incentive is there for them to create such a method? It's not like copyright expires...much.

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

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 12:24pm

    Sue for the lost millions............................

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

  • identicon
    Daydream, 14 Nov 2019 @ 1:53pm

    Somehow it doesn't surprise me that a company called Universal Music is trying to lay claim on everything.

    In the interest of fairness, however, I think that if UM is allowed to put ads on public domain songs, then everyone should be allowed to put their ads on actually-UM-owned songs.

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

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 2:08pm

    Re: Re: Twiqbal [was Re: ]

                You're not alleging that Universal is itself displaying the video publicly.

    Its decision to leave the video up

    A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

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

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 3:50pm

      Re: Re: Re: Twiqbal [was Re: ]

      Yet judges treat that stuff like the balk rule, i.e., whatever the umpire says it is.

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

      • identicon
        Anonymous Coward, 16 Nov 2019 @ 9:00am

        Re: Re: Re: Re: Twiqbal [Thread 2]

        [Thread 2, 'cause this thread got split off.]

         

                    When there are well-pleaded factual allegations, a court should assume their veracity…

        … whatever the umpire says it is.

        Plaintiff is master of their own complaint. Perhaps Stone has retired from the mound, but If somebody would just pitch just the right set of facts…

        1. Plaintiff has a registered copyright in the video. (Reg. No. ####.)

        2. The video was posted to YouTube and publicly displayed.

        3. Universal subsequently (purported) to grant a public display license for the video to YouTube.

        4. Universal has an agreement with YouTube which grants Universal the right to take down videos that aren't monetized.

        5. Universal receives financial compensation from YouTube in exchange for their (purported) authorization to publicly display the video.

        Then, with that set of facts, there might be a cleverly-pleaded claim there for vicarious infringement.

        One . . . infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.

        Sufficient to get to summary judgment? Ya think?

         

        (At the summary judgement stage a rather inconvenient fact or three might get in — like maybe plaintiff authorized YouTube's display — so there's actually no direct infringement by YouTube, and there never was any direct infringement by YouTube. Oh, well. Never mind. The subject line here is still Twiqbal.)

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

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 2:55pm

    Money

    Me: guys you should like....sue universal for taking your stuff.
    Glenn:but that cost a lot of money.
    Me:yeah...but universal has a lot of money...
    Glenn....

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

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 7:40pm

    It is situations like this that remind me of several things... Some of which come to mind more readily than other. For the ones at the top of my head...

    The "copyright deadlock" trick

    Lenz v. Universal

    And the fact that we (at least in part) arguably have Viacom to blame for the start of Youtube's messed up copyright system anyway.

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

  • identicon
    Anonymous Coward, 14 Nov 2019 @ 8:53pm

    Hey Mike if I copied and distributed your stupid books for free that wouldn’t be ‘stealing ‘, right?

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

    • icon
      Mike Masnick (profile), 15 Nov 2019 @ 5:12pm

      Re:

      Hey Mike if I copied and distributed your stupid books for free that wouldn’t be ‘stealing ‘, right?

      You are correct. It would not be stealing. And if you're talking about the Working Futures book, all the stories are released under CC licenses or public domain dedications, so not only would it not be stealing, it also would not be infringement. Indeed, it would be encouraged.

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

    • identicon
      Anonymous Coward, 17 Nov 2019 @ 4:27pm

      Re:

      Damn bro. The sad thing is you’re like to fourth idiot to get a self-own the exact same way.

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

  • identicon
    Kevin Hayden, 15 Nov 2019 @ 8:31am

    Wire Fraud?

    Since UMG is effectively collecting the ad revenue generated from viewing of the clip instead of the legitimate poster, could they be guilty of wire fraud? Perhaps the original poster of the video should file a criminal complaint instead of any civil actions, since they are literally being defrauded of money they are entitled to. If such an action succeeds, the resulting fines,etc. might make all these music companies think twice before laying claim to anything and everything on the internet just to make a few bucks more.

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

  • icon
    Robert Schwartz (profile), 15 Nov 2019 @ 10:20am

    Old habits

    We need to update both filters and habits. When my band made our first CD a decade ago we had the choice of listing songs as "originals" or "covers" -- no imagination that one could be PD. Then, when I entered Look For The Silver Lining (Jerome Kern, 1919), they insisted it wasn't PD -- until I insisted they look it up. This TechDirt post gave me a start re the forthcoming Public Domain Song Anthology. But heartened to see the pushback on such BS.

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

    • icon
      Samuel Abram (profile), 15 Nov 2019 @ 11:24am

      Re: Old habits

      I hear ya. I made an album of Public Domain material and earlier this year when I uploaded it to CDBaby for it to be distributed on Spotify, iTunes, et al., there was an option for "Public Domain" covers option which wasn't there when I first used it in 2009.

      I'm glad at least this aspect is better than it once was.

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

  • icon
    Robert Schwartz (profile), 15 Nov 2019 @ 10:32am

    Not the best choice

    At the LOC’s own celebration of 1923 content entering the PD, this was the LOC’s THEME SONG.

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

  • identicon
    Rekrul, 15 Nov 2019 @ 11:35am

    Gee, I'm surprised that the hard-working people at YouTube's service center didn't catch this. Oh wait, here's what that service center actually looks like;

    https://www.youtube.com/watch?v=Wgw-tzbKJ60

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

  • identicon
    Anonymous Coward, 18 Nov 2019 @ 2:41am

    IANAL - Tortuous interference - post warning to UMG

    If you sent a registered letter to UMG warning them that they are interfering with your monetization, then if they don't remove the song from their database and allow you to monetize on YouTube, then they are knowingly interfering with your business relationship with YouTube and thus moved from the negligent Tortuous interference into the broader category of Tortuous interference.

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


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