by Mike Masnick
Fri, Jul 18th 2014 12:16pm
by Mike Masnick
Tue, Jul 15th 2014 7:59am
from the fascinating dept
The Sunni Islamic State insurgents, now locked in a deadly struggle with Iraq’s Shiite majority, excel online. They command a plethora of official and unofficial channels on Facebook, Twitter, and YouTube. “And kill them wherever you find them,” commands one recent propaganda reel of firefights and bound hostages, contorting a passage from the Koran. “Take up arms, take up arms, O soldiers of the Islamic State. And fight, fight!” adds another, featuring a sermon from the group’s leader, Abu Bakr al-Baghdadi. The material is often slickly produced, like “The Clanging of Swords IV,” a glossy, feature-length film replete with slow-motion action scenes. Much of it is available in English, directly targeting the recruits with Western passports that have become one of the organization’s more dangerous assets. And almost all of it appeals to the young: Photoshops of Islamic State fighters and their grizzly massacres with video game-savvy captions like, “This is our Call of Duty.”Of course, what Farrow ignores is that it's not at all difficult to find Americans using social media for similar calls to action. For example, how about a Fox News contributor announcing that it was time to "Muslims are evil. Let's kill them all." Or a Breitbart News contributor calling for people to "start slaughtering Muslims in the streets, all of them."
But officials at social media companies are leery of adjudicating what should be taken down and what should be left alone. “One person’s terrorist is another person’s freedom fighter,” one senior executive tells me on condition of anonymity. Making that call is “not something we’d want to do.”
I find both of those statements abhorrent, but the point is that idiots will make stupid incendiary statements on Twitter, Facebook and YouTube all the time -- and most people look at them and realize that they're ignorant crazy people talking. No one is actually incentivized to run out and actually follow those arguments. Yet Farrow seems to think that the people who follow those other groups on social media immediately accept what is said and follow through?
Just because people are saying stupid stuff on social media, doesn't mean internet companies should step in and decide what is and what is not appropriate. Where do you draw the line? Farrow breezily admits that it may be difficult to figure out what to take down and what to leave up, but... then just assumes it's kind of easy anyway... because child porn.
More troubling still is the fact that these companies already know how to police and remove content that violates other laws. Every major social media network employs algorithms that automatically detect and prevent the posting of child pornography. Many, including YouTube, use a similar technique to prevent copyrighted material from hitting the web. Why not, in those overt cases of beheading videos and calls for blood, employ a similar system?See how limited types of censorship almost always lead to calls for greater and greater censorship> It's fairly amazing that an attorney, former State Department official and a reporter would so blatantly call for censorship, but that appears to be Farrow's bag. Besides, he's apparently rather clueless about why his call for censoring "terrorists" is so different from child porn (an absolute liability situation, where it's generally immediately obvious if something is illegal) and copyright (where the system is already quite problematic, and involves a detailed notice-and-takedown process that has massive dangerous unintended consequences). He also ignores the fact that all of these companies already do pull down extremist content (something many folks think already goes too far). Apparently, Farrow's not big on details.
Farrow does mention Section 230 of the CDA, but apparently is ignorant of how that law actually works as well:
As always, beneath legitimate practical and ethical concerns, there is a question about the bottom line. Section 230 of the Telecom Act of 1996 inoculates these companies from responsibility for content that users post—as long as they don’t know about it. Individuals involved in content removal policies at the major social media companies, speaking to me on condition of anonymity, say that’s a driving factor in their thinking. “We can’t police any content ourselves,” one explains. Adds another: “The second we get into reviewing any content ourselves, record labels say, ‘You should be reviewing all videos for copyright violations, too.’”First of all, this is wrong. The "as long as they don't know about it" is flat out wrong. Section 230 actually is explicit that if you do know about it, it's entirely the company's discretion whether or not to remove. If they do, that imposes no additional obligations on them to remove other content. However, the final comment is more accurate -- though, amusingly, it contradicts Farrow's own earlier statement about how these companies already know how to stop copyright-covered content from appearing.
The point is that determining who is and who is not a "terrorist" isn't so easy, and that slope is very slippery. Should those Fox News and Breitbart contributors be cut off as well for their "terroristic" threats? Remember that after then-Senator Joe Lieberman went on a similar crusade to get YouTube to take down "terrorist" videos, it resulted in YouTube disabling the YouTube channel of an important Syrian watchdog group that had been unveiling atrocities in that country.
Farrow keeps going back to the genocide in Rwanda to prove his point. But under his logic, anyone documenting that genocide and getting the news out to the world would likely be censored, allowing that kind of genocide to go on.
Yes, if you think simplistically about things, it must seem so easy to just say, "Well, censor the bad guys." But you'd think that someone with Farrow's training and background would actually know that simplistic solutions to challenging and nuanced questions often result in very dangerous policies with serious unintended consequences.
by Tim Cushing
Mon, Jul 14th 2014 2:14pm
from the please-file-counter-notice-in-nearest-recycle-bin dept
As noted recently, Soundcloud has given Universal Music Group the power to directly take down content, bypassing the site's internal takedown process as well as the few remedies it offers users who wish to dispute deletions. YouTube has also given UMG this same level of access, again bypassing the normal notice and takedown system.
While sites may claim (as Soundcloud did) that they need to give powerful rights holders direct access in order to comply with the DMCA, this simply isn't true. Utilizing the normal notice-and-takedown system would be more than adequate. The only thing giving a label direct access does is increase the amount of abuse.
It's long been noted that the DMCA takedown process tends to encourage rights holders to disregard fair use and fire off notices. The toothless "perjury" language included at the bottom of every takedown notice is almost never enforced, making false or bad claims painless for those sending takedowns.
UMG, with its direct access, certainly isn't going to consider fair use when it starts pulling the plug on content, as one YouTube remix artist discovered. Elisa Kreisinger has been remixing cultural touchstones for years. This video -- one that never even made it past YouTube's upload process -- was no different.
Last August, I saw Jay Z’s HBO mini-documentary commemorating his 6-hour “unprecedented performance experience” of “Picasso Baby” at Pace Gallery. The movie was ripe for remixing: Within the first minute, Jay Z reflects on the similarities between performance art and his usual concert performances, arguing that art galleries have separated art from mass culture, presumably unintentionally.The reason was simply this: where fair use could be reasonably argued, UMG (and its bots/lawyers) saw nothing more than two of its videos being "stolen."
With one simple twist, I recontextualized select scenes of his performance and set it to Taylor Swift’s “22." The remix illustrates how both Jay Z and Swift use their status as outsiders to relate to audiences despite being very much insiders. [...] I uploaded the mashup to YouTube on Aug. 5, 2013, and it was immediately blocked globally. Ten months later, I finally uncovered the reason.
It turns out no defense would have revived my video. YouTube had cut a private deal that gave Universal Music Group the power to take down any video, even those videos (like mine and countless others, including creators as diverse as Patrick McKay and Megaupload) that didn’t require Universal’s permission in the first place.The only plus side was that's UMG's deletion didn't result in a strike against Kreisinger's account. But that's of little comfort when fair use is steamrolled by "contractual obligations" YouTube (or Soundcloud) really don't need to have in place to stay compliant with the DMCA.
When fair use gets damaged, so does free speech.
Fair use prevents rightsholders from silencing critics with the threat of a copyright infringement lawsuit. By giving UMG the ability to take down videos that use their content regardless of fair use, YouTube has given UMG sweeping power to control what is – and is not – said about UMG and UMG artists. UMG should not be asking for this kind of power, and YouTube should not be granting it.Labels and copyright industry lobbyists love to call these sorts of deals "voluntary." But they aren't. They're coercive. Lobbyists lean on politicians and politicians lean on internet services to do more to help out struggling, billion-dollar industries. Rather than see IP laws get any worse (or target them any more specifically), they comply with increasingly ridiculous demands. And the users pay the price by having their uploads deleted, their accounts closed and their mouths shut -- all without any genuine level of recourse.
by Mike Masnick
Fri, Jul 11th 2014 11:58am
Kozinski Doubles Down On Ridiculous Garcia Ruling, But Hints At How District Court Could Correct Most Of His Mistakes
from the what-the-actual...? dept
Once all this came out there was an immediate uproar and a variety of challenges. Kozinski shot down an emergency motion to stay the ruling, but did amend the original order to admit that copies of the video without the scene including Cindy Lee Garcia could remain up on the site. Still, another judge on the court actually asked the entire court to reconsider, and Google asked the entire court to reconsider the entire case, leading a whole bunch of folks to weigh in -- all on the side of Google. Even we weighed in in a filing written by lawyer Cathy Gellis, highlighting how Congress clearly intended to protect intermediaries from liabilities in situations like this.
Things had been entirely silent on the case for a really long time, but this morning, the court issued "an amended opinion," which appears to be Kozinski both doubling down on his original, ridiculous ruling while at the very same time offering a bunch of outs for the lower court to fix what Kozinski himself totally screwed up. It's the most bizarre type of tap dancing you'll see in a judicial ruling in a long time. Basically, for all of the arguments that show why Kozinski is wrong, he just puts his arms up and says "hey, no one raised that issue, so we ignored it."
Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. We note, for example, that after we first issued our opinion, the United States Copyright Office sent Garcia a letter denying her request to register a copyright in her performance. Because this is not an appeal of the denial of registration, the Copyright Office’s refusal to register doesn’t “preclude a determination” that Garcia’s performance “is indeed copyrightable.” .... But the district court may still defer to the Copyright Office’s reasoning, to the extent it is persuasive....That latter issue, of how Section 230 is relevant here, is the one that we raised in our brief, so it's nice that he "acknowledges" that it exists here, but this is still a pretty weak response.
After we first published our opinion, amici raised other issues, such as the applicability of the fair use doctrine..., and section 230 of the Communications Decency Act.... Because these defenses were not raised by the parties, we do not address them. The district court is free to consider them if Google properly raises them
Later, he does this again with the First Amendment argument. In the original, he totally dismissed any First Amendment questions with a breezy (and misleading) "the First Amendment doesn't protect copyright infringement." Here he tries to "clarify" that by admitting that "oh yeah, there's fair use," but it doesn't matter since Google didn't raise fair use:
“First Amendment protections are ‘embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,’ and in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.” ... Google hasn’t raised fair use as a defense in this appeal, see page 11 supra, so we do not consider it in determining its likelihood of success. This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings.Of course all of this ignores the basic fact that none of those arguments made sense at all because it was absolutely ridiculous to argue that an actress had a copyright interest in a film in the first place. It's long been established that that's simply not true. Furthermore, as the new dissent snarkily points out in a footnote, Kozinski's desire to avoid addressing these rather obvious flaws in his own argument are pretty damning:
The majority’s amended opinion also attempts to hedge its conclusion that Garcia has a copyright interest in her acting performance by avoiding counter arguments it failed to address, because they were not raised by the parties. Maj. op. at 11, 19. Yet, the majority could consider these arguments sua sponte “under exceptional circumstances, where substantial public interests are involved, or where to not do so would be unduly harsh to one or both of the parties.” ... The majority’s failure to even engage this inquiry, instead quickly dismissing arguments against its view, confirms its errorThis amended ruling is a bizarre look into the mind of Judge Kozinski. He seems to recognize that he messed up royally in the original decision... but he's too proud to let it go. So, instead, he's basically doubling down on his original, questionable reasoning, while adding in all these ways that the impact of his own terrible decision might effectively be minimized, if only people raised a variety of defenses that shouldn't have mattered in the first place, if Kozinski hadn't read the law so incredibly wrong. Even if it does go back to the district court, and the court rules correctly under Kozinski's "new" rules, the original precedent would still stand.
Of course, this process isn't even close to over. The ruling notes that the court is still considering an en banc rehearing with a larger panel of judges from the 9th Circuit, who would hopefully overrule Kozinski entirely, and drop this horrible precedent. But, for now, we have to wait, and live with Kozinski's unwillingness to admit to his mistakes.
by Tim Cushing
Fri, Jul 11th 2014 7:34am
from the WB-execs-say-real-life-story-needs-more-villains dept
You used to be able to watch it on YouTube, where it had racked up nearly three million views before this happened.
Apparently, Warner Bros. Entertainment took issue with the use of the theme song and the inclusion of the two Lego Movie characters (seen briefly near the end of the 90-second video) and issued a takedown. Whether or not you agree with Greenpeace's complaint, there's no denying the fact that its use of the theme song and very brief use of these characters is clearly parodic fair use.
Greenpeace has now moved the video to Vimeo, where it will possibly receive a stronger fair use defense from the hosting company, although still in the form of "oblige takedown request first, investigate later." It may work a little harder to defend this one up front, considering all the viewers that were heading to YouTube to catch Greenpeace's new viral video are now landing on its doorstep.
Warner Bros.' action here isn't exactly censorship (as it probably was agnostic about the video's message) but it's not exactly forgivable either. Seeing as this video probably didn't trigger an automated takedown by YouTube's content-matching system, it was most likely the result of an active search for infringement, which means whoever's policing content for WB ignored everything but the song and the brief appearance of its Lego Movie characters. Once again, digital shouts of "MINE!" trump fair use.
by Mike Masnick
Mon, Jul 7th 2014 3:30pm
from the good-for-them dept
Of course, all the public shaming in the world isn't going to matter much if ISPs are free to clog up interconnection points and you have no real competition to go to.
by Mike Masnick
Tue, Jun 24th 2014 7:58am
from the monetization-fight dept
I've also heard from a number of folks in the indie music community who have raised some good points about their concerns, going beyond the whole misleading "but they'll block my videos." One of the best summaries of the concerns was actually placed on a comment to our original story, which highlighted a bunch of other points that people were concerned with, some more reasonable than others. Having looked at the contract on DMN and talked this over with some folks, a few things become clear, which we'll discuss with a few screenshots from the copy DMN uploaded (though it's worth reading the whole thing). First, YouTube is in fact raising the rates it pays people:
The second issue is the "major label" issue. That is, it's been reported, but not confirmed, that the major labels got nice advances from YouTube to join this program, and the indies feel that's unfair and that they're being cut out. As some have pointed out, some of this anger is really indies angry at the major labels plus YouTube as opposed to them just being angry at YouTube. But, on that front, it's somewhat difficult to figure out how YouTube can really do anything here. Of course it's going to provide greater guarantees and advances to the major labels, because they can be reasonably sure that those will make economic sense. It's much tougher to do that with a diverse group of independent artists. There is this tidbit in the contract, though, that has raised some eyebrows:
The final point that has raised some serious concerns is the apparent provision that artists need to hand over their full catalog and that it has to give their works to YouTube at the same time as any other "similarly situated" service. Here's the clause in the contract DMN posted:
Still, that's a contractual choice that Google/YouTube is making about how it wants to run its service, and it really doesn't seem that crazy for the company to try to put together a deal that will likely lead to the best overall experience for end users. Separately, as we pointed out last time (and at least one independent artist noted to me via email), it does seem to be looking a gift horse in the mouth a bit to basically argue that they all want to use YouTube's platform for free -- getting all the advantages of hosting, bandwidth, community, streaming software and more -- and then whine about how YouTube looks to make that more sustainable while at the same time providing ways for the artists to make some revenue as well.
So, in the end, there do seem to be some reasonable concerns by artists about the specific terms in the contract -- but that's going to be true in almost any contract negotiation. YouTube's never going to please everyone all the time. I do think YouTube could have done a few things to better anticipate some of these concerns and to provide artists with greater flexibility in some of the decisions they need to make, but looking over the key concerns, you can also make the argument that YouTube is structuring this offering to be better for users -- and doing so in a way that will help artists make money. And thus... the specific complaints do feel a bit more like nitpicking. The concerns about the deals with the majors are... just kind of a fact of life. It's hard to see how YouTube could realistically do much different in that situation. Negotiating individual deals with every single indie provider is a logistical impossibility (and, if anything, would likely require lower royalty rates, as the management of so many different deals would require significant overhead).
Once again, after looking at the details, it does seem like artists have some legitimate complaints, and YouTube could have been more open and transparent about some of the details of all of this. I definitely see the point from my artist friends who don't want to put everything on YouTube. But, having also dealt with music services where it's frustrating to see them missing songs that really ought to be available, you can see why the company is trying to drag some artists into accepting the fact that making more of their work available is probably best overall as well.
by Mike Masnick
Fri, Jun 20th 2014 10:00am
from the a-bit-of-spin-and-you-can-make-anything-look-evil dept
Here's the main issue: YouTube, which has long been the most popular place for people to find and listen to music, is about to launch some sort of premium subscription service. This has been rumored for ages, and it's expected to build a Spotify-like service on top of YouTube's existing content. As part of this, YouTube is going around and negotiating royalty deals with labels and artists, most of which have signed on. This is providing a new revenue stream to those artists. Currently, for artists on YouTube, they're only able to make a cut of advertising revenue (which isn't that much) via YouTube's Partner program. By launching a premium subscription service, YouTube is adding a brand new revenue stream, which by all accounts will pay noticeably better than the current partner offering. Just as Spotify pays more to artists when a "subscriber" streams a song than when an ad-supported user streams a song, it appears that YouTube will do the same.
Now, the one big sticking point is the removal of certain videos. While Huet points out that there are very, very few videos likely to be impacted by this, it is likely to still hit a few. And, that's why it's quite reasonable to look at that and have the gut reaction: "that's bullying" or "that's unfair." It's even easier to try to spin it, as some critics have, as Google threatening people who don't agree to the royalties that it's offering. But where things appear to have been muddied is in understanding what is meant by "removing" the videos. As far as we can tell, Google is just saying it will remove those videos from its partner program. YouTube is an open platform. Anyone can go and upload videos for free. Any musician who wants their video on the platform can do so for free. However, for videos that are already in the partner program, if they reject the new deal (which, again, is better than the existing deal), Google will no longer have a license to host that video as a part of its partner program, so that copy may be removed because the artist has effectively pulled its license from YouTube to host it. The musicians and labels can still go back and re-upload their own videos -- it's just that they've chosen not to monetize the video at all by joining the partner program. You could argue that Google could just "move" the video from the partner program to outside the partner program, but then these same folks would probably try to spin it as Google infringing on their copyrights by hosting their videos without a license...
Put yourself in the shoes of the indie band here. Under the existing system, you can "monetize" your videos by getting a cut of the tiny ad revenue that comes in from each view. From what everyone says, unless you're absolutely huge, the money just isn't that great. Such is the nature of online advertising these days. But the new offering gives you a cut of subscription revenue also, which is likely to be higher. So, now, as an indie band, the options are: take Google's music streaming deal, which is better than the crappy ad share deal you're currently getting or... have your video removed from YouTube's partner program.
In short: before, you had two options:
- Post your video and monetize it via YouTube's partner program with a bit of ad revenue.
- Post your video and don't monetize it.
- Post your video and monetize it via YouTube's partner program with a bit of ad revenue and some subscription revenue
- Post your video and don't monetize it.
Sure, perhaps it's fair game to argue that the new deal isn't good enough for a subscription service, but it's difficult to see how acts are complaining that their videos will be taken out of the partner program when the existing deal is even worse. So, basically, Google is offering these labels a better deal than before, and it's being attacked because it's removing the option for the old not so good deal. It's a little difficult to see how that's a fair complaint. After all, YouTube has given these artists a massive, powerful and robust platform to put their videos up for free with no bandwidth costs at all, and even given them a variety of monetization options, from ad shares to linking people to buy MP3s and such. And now it's removing one option while adding a better paying option... But a few indie labels are spinning it negatively because they want an even better deal. And maybe the royalty rates they want are justified. But to present this as somehow hurting those indie artists just seems to be pure spin.
Hell, go back to the time before YouTube, and think about the deal that indie artists had if they wanted to put videos online? They would have to pay through the nose for something like a Real Video Server, then pay for all the bandwidth, and then know that it was still almost impossible for anyone to watch the video. Then YouTube came along and made it both easy and free for anyone to put their videos online, plus build a large community of people who want to watch those videos, and then added ways to monetize those videos. Now, YouTube is adding another way to monetize those videos even more, and the artists are suddenly claiming it's an attack on them? Yikes.
Fri, Apr 25th 2014 6:37pm
from the minimizing-their-reach dept
In all the strange goings-on concerning media companies aggressively taking down YouTube videos that extend the reach of their content, and likely create new fans, it's somehow exhausting to see how few media outlets address the larger questions. Typically we get news of the takedown, the subject content of the takedown, and an acknowledgement that the content wasn't legal to put on YouTube in the first place. That's it, page, period, paragraph. And that's disappointing.
But perhaps things are starting to turn a bit. As some of the so-called new media outlets mature to become established media outlets, it's something of a sign when they begin asking the same questions we ask about these takedowns. Take Deadspin, for instance, the sports wing of Gawker Media. Deadspin probably still qualifies as new media, but that's a designation that either is or will be beginning to erode. Now take into account their story of CBS taking down a bunch of YouTube clips of Viacom sports talk mogul Mike Francesa. They start things off with the typical explanation of the events. They likewise go on to note that this action is well within the law.
CBS is within their rights to go after anyone sharing their copyrighted material. This was a cold, businesslike carpet-bombing of Youtube by CBS's legal team, not the outcome of some specific vendetta against the WFAN Audio guy. Nothing personal.And, in many reports about something like this, that's where it would end. Deadspin goes on, however, to do its best Techdirt impression.
But here's the thing—if there's a black market for Mike Francesa clips, it's because WFAN is doing a piss-poor job of marketing him. As has been pointed out, the most popular Youtube clips draw more views than Francesa's FS1 simulcast draws viewers. There's really no reason for a media company not to make its best content digestible, accessible, and shareable. The NHL and MLB have made amazing strides on this front in the past few years, and as a result, if you want to watch or embed a hockey or baseball highlight, your first instinct now is to go directly to the source. You want to hear what Francesa had to say? The audio clips on the official site are unembeddable, overlong, and never highlight the Mike-just-being-Mike miscellany people actually want to hear.In this, they're spot on. What the YouTube clips did was fill a void of customer demand perpetrated by the content creators themselves, or at least the parent company of the creators. Nobody with any sense, all else being equal, would think that the best place to get their Francesa clips would be YouTube. They'd get it from WFAN's site, the radio home of Francesa. But all else is not equal. The WFAN site isn't serving the public demand for their product, so somebody else did in a way that generated no profit for anyone other than WFAN, which benefited from any new listeners generated by the clips. It isn't that what CBS did was wrong, it just wasn't smart.
And, to me, the bigger story is that some of the larger outlets are starting to ask these questions. If that's a watermark for a new tide rolling in, it's a good one.
by Mike Masnick
Tue, Apr 15th 2014 7:16am
Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech
from the not-just-about-copyright dept
After some consideration, we teamed up with the Organization for Transformative Works to file our own brief concerning "intermediary liability." While the 9th Circuit noted it would accept briefs from all interested parties, it also said those briefs had to be shorter than 2,500 words, which is not a lot of space to make complex legal arguments. We fully expected many others to focus in on all of the (many, many) troubling copyright aspects in Kozinski's ruling, but wanted to raise a separate (and, in some ways, larger) issue that was almost entirely ignored by the ruling: that third parties should not be blamed for the actions of their users -- and that Judge Kozinski's broad injunction did just that.
Lawyer Cathy Gellis wrote up an amicus brief on our behalf, highlighting Congress's clear intent in both Sections 230 of the CDA and 512 of the DMCA in providing safe harbors from liability for third parties, in order to encourage them to support free and open dialogue and discourse online, without fear of legal repercussions. As our brief argues, while many have ignored Section 230 (which excludes intellectual property), it should be quite clear that Garcia's case was really nothing more than an attempt to misuse copyright law in order to get around Section 230 and to hold a third party liable. Furthermore, as we've noted in the past, Judge Kozinski's injunction appears to go well beyond what the law says is appropriate in responding to copyright claims.
There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.