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Fair Use for YouTube & MySpace Users 100

Posted by Zonk
from the getting-back-the-right-to-speak dept.
NewYorkCountryLawyer writes "A few years back, documentary filmmakers didn't know what copyrighted clips they could safely include in their films as a 'fair use'. Now there's a well-accepted set of 'best practices' that establishes rational, predictable rules. The same folks who brought rationality to the world of documentary filmmaking are about to work their magic in the user-generated online content space, including user-created videos on YouTube and user-created music on My Space. They said: 'Nonprofessional, online video now accounts for a sizeable portion of all broadband traffic, with much of the work weaving in copyrighted material ... A new culture is emerging — remix culture, an unpredictable mix of the witty, the vulgar, the politically and culturally critical, and the just plain improbable ... What's fair in online-video use of copyrighted material? The healthy growth of this new mode of expression is at risk of becoming a casualty of the efforts of copyright owners to limit wholesale redistribution of their content on sites like YouTube, and of videomakers' own uncertainties about the law.'"
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Fair Use for YouTube & MySpace Users

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  • Law? (Score:5, Insightful)

    by Odin_Tiger (585113) on Friday August 10, 2007 @01:55PM (#20185657) Journal
    Isn't there a legal definition of what is and what is not fair use? Or is it so vague that we have to make up rules and hope the **AA's approve?
    • Re: (Score:3, Informative)

      by metaslashdot (1115685)
      Wikipedia has a pretty good answer. [wikipedia.org]
      If it meets the tests then it's fair use. If not, sue.

      Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a

      • Re:Law? (Score:5, Insightful)

        by zarkill (1100367) on Friday August 10, 2007 @02:24PM (#20186075)
        These guidelines tell you what to consider, but they don't explicitly quantify or define anything, so in the end you really are just guessing and hoping you don't get sued anyway.

        For instance, who judges what the "purpose and character" of the use is? I might think my usage of a copyrighted work is educational and with good purpose, but the owner of the work might disagree. There's nothing outlining specifically what is and isn't a good purpose or character; only a couple of suggestions of things that might qualify.

        Or how much of the "amount and substantiality" used is acceptable? The law doesn't say "you can use 10% but no more", so it's still a guessing game.

        And it's not always possible to judge what the effect on a potential market will be. Some people say sharing music increases the market for that music, while the industry claims huge losses from the same act.

        So these are things to take into consideration, but they aren't really answers. The only thing you can do is try to think about these guidelines and hope for the best.
      • by radarjd (931774)

        Wikipedia has a pretty good answer.
        If it meets the tests then it's fair use. If not, sue.

        That's not just the Wikipedia answer, that's what the US Code says in 17 USC 107 [cornell.edu]. It's a standard that gives the judiciary wide latitude to decide what is or is not fair, but gives frustratingly few bright line rules as to what is allowable and what is not. A person's good faith determination won't do it -- even the opinion of a lawyer won't. The best a copyright lawyer can do is give you his or her best guess as to what a court might decide. If you'd like that changed, I suggest you speak with Congress

        • You simply can't quantify, in advance, every circumstance where fair use rights need to be balanced against the rights of the copyright holder.

          In most cases, you can apply a little judicial precedent and common sense to figure out if something is fair use or not. And in the cases where you can't, you have a decision:

          - Get a license
          - Infringe and be prepared to defend your fair use rights should the copyright holder object
          - Don't use the material.

          It would be nice if there were nice, easy to follow rules - b
    • The deal with Fair Use is that, while there is a set of accepted best practices, its still fuzzy law at best. Copyright holders and users still have a bit of leeway in what they can consider acceptable and non-acceptable use, and in the case of YouTube, more often than not they'd just rather see it not there at all (especially if its mocking the original content or "potentially hurting sales").

      Another thing to consider is that there generally aren't music clips sampled (best practices are around 30 seconds
      • Re:Law? (Score:4, Informative)

        by zarkill (1100367) on Friday August 10, 2007 @02:39PM (#20186293)
        This is an interesting question to me, because I work with the pharmaceutical industry and they actually had a very similar problem.

        Back in the day, the FDA wrote regulations that were somewhat vague, much like Fair Use guidelines. They said things like "Your drug-making machines must be clean and safe". Sounds good, right? But they never defined exactly how clean was clean, or what "safe" really meant. So factories could go about their business, thinking they were doing everything right, and then be shut down because the FDA decided a conveyer belt was moving too quickly or a few too many dust specks had gathered on a surface.

        So they formed industry groups that sat down with the regulators and actually hammered out the details: what factors were the FDA inspectors taking into consideration, what tolerances should they be allowed, what margins of error were there... that sort of thing. That way they had something concrete they could rely on, and not just cross their fingers any time an inspector came to audit the facility.

        Maybe this "Fair Use Best Practices" guide is a step in the same direction for people who want to use some portion of a copyrighted work but don't want to pray to the copyright gods that they're not falling afoul of some unexpected judgment.
        • Re:Law? (Score:4, Insightful)

          by cpt kangarooski (3773) on Friday August 10, 2007 @03:04PM (#20186715) Homepage
          If you need specificity, then get a specific exception added on to the Act. Fair use is meant to be incredibly vague, in large part to help it respond to changing conditions. Fair use originated in the 19th century; could they have anticipated something like Betamax time-shifting? There's no reason why every use must be fair or infringing, but that doesn't mean that we should ruin fair use by trying to make it specific.
          • by zarkill (1100367)
            I'm not saying that it needs to be as meticulous or specific as a regulated industry like pharmaceuticals. I'm just pointing out that there's a similarity between the two situations: no one knows (or knew) exactly what is expected of them until the law comes to shut down your business.

            I think the Best Practices guide is a good thing, and there's also no reason why it would need to be set in stone. continuing with my pharmaceutical industry analogy, the guidelines from the FDA and industry groups are always
          • Legislation works, but because it is slow, the Courts exist to figure out undefined cases. Unfortunately it can be expensive to take a risk by becoming a test case.
        • Okay, but how are we going to unionize the people who upload to YouTube?
          We also have the problem that many movie studios (and record labels) don't believe in fair use, and many of the people who do uploads of video collages don't believe in copyrights. The regulators would need a heavier hand to ensure that there was such a thing as fair use, and since these regulators helped create this problem with life+ copyright laws, we would risk getting a compromise in the wrong direction.

          Try to see it my way
          Do I have to keep on talking till I can't go on?
          If we see it your way
          We've the risk of knowing that our love will soon be gone
          We can work it out...

        • by ricree (969643)
          But who is going to do the "hammering out" here? Right now, there are a few large and powerful organizations pushing for stronger copyright enforcement. The people who benefit from fair use, on the other hand, tend to be much more decentralized and unorganized. There are problems with the current laws, but if they sat down to write a comprehensive set of rules, who's going to be at the table besides a bunch of high priced corporate lobbyists?
      • by HTH NE1 (675604)

        music clips sampled (best practices are around 30 seconds for fair use)

        I'd be surprised if it was as long as that. I'd expect it to be more like less than 10 seconds, going by the shortest of commercials as a meter.

        Meanwhile, actual commercials should fall under fair use to reproduce in their entirety at all times, and any other materials intended for promotional use. Further distribution is free advertising which only benefits the owner; stepping in its way will create a backlash against the advertised product.

        This is my opinion (TIMO). IANAL.

    • Re: (Score:3, Informative)

      Isn't there a legal definition of what is and what is not fair use? Or is it so vague that we have to make up rules and hope the **AA's approve?

      No. It has historically been a vague concept, sort of "you know it when you see it". The problem is that the video maker might not be able to get a definite answer until he's spent a couple of hundreds of thousands of dollars in legal fees defending a litigation. And the answer might not be the one he was hoping for.

      Which is why it is so important that more predictability and certainty be achieved.

    • by zeruch (547271)
      The Fair Use Doctrine has a little bit of fuzz to it (especially in lieu of recent technological advancements), but the principles behind it are those that the **AA's have generally never liked to start with, so hoping for their approval in any way is probably not going to take you very far.
  • by dknj (441802) on Friday August 10, 2007 @01:58PM (#20185719) Journal
    Disney teaches copyright [youtube.com]

    dk-
  • I've seen several that are still up and obviously placed (with the proper tags and stuff) as I have seen ones that were pulled down for copyright violation. Do they or do they not violate copyright? Are only the ones 'caught' for violation pulled down while others thrive as the copyright holders allow them to stay up for free advertisement? Shouldn't Youtube voluntarily pull these to avoid potential copyright infringement?

    Oddly enough, even AFTER Google bought Youtube, I found severl 'pulled down' Youtube v
    • by Enoxice (993945)
      I seem to recall certain record labels making deals with YouTube to host certain music videos.
    • by The Queen (56621)
      You don't have to even produce any legal documents in order to get YouTube to pull something. I worked on a video project that incorporated original music, of which I was half-owner (though the 'band' as it was did not exist on paper) and when the other half split, he complained to YouTube that our project infringed on his copyright and they took us down.

      Completely original content, no lawyers, no corporations, not a single scrap of paper. I'm sure all he did was send an email. And they moved on it.

      They're
  • I go up to YouTube and I see posts of full clips of copyrighted material. I don't see anything about permission and a little credit, if any, for the source. You're not going to win a "fair use" argument against YouTube when that shit is going on. Said copyright holder can just go up there and do a search on any TV show or movie or music video and find thousands of copyrighted material that was uploaded illegally. And a jury will agree with the plaintiff. I know because I do in most of these cases.

    There need

    • by HTH NE1 (675604)

      I go up to YouTube and I see posts of full clips of copyrighted material. I don't see anything about permission and a little credit, if any, for the source. You're not going to win a "fair use" argument against YouTube when that shit is going on.

      When the copyrighted material used is instantly recognizable on its face (or by ear), or even by the listed title of the video, what constitutes sufficient "credit... for the source"? Reproductions of the complete closing credits? What about incorrect attribution of the second unit of a production that had no part in the clip used?

      It isn't like the Russians using footage from Titanic to claim the North Pole in a way that tries to conceal the source. It's more like taking clips of The Daily Show featurin

      • When the copyrighted material used is instantly recognizable on its face (or by ear), or even by the listed title of the video, what constitutes sufficient "credit... for the source"? Reproductions of the complete closing credits? What about incorrect attribution of the second unit of a production that had no part in the clip used?It isn't like the Russians using footage from Titanic to claim the North Pole in a way that tries to conceal the source. It's more like taking clips of The Daily Show featuring Jo

        • by HTH NE1 (675604)

          If someone's material is one the web in complete form

          You're assuming that the footage is in complete form. Even incomplete footage, say a montage of clips from 24 set to an extended version its theme, can be recognizable and be self-attributable to its source on its face.

          You deserve to be sued and lose!

          You're also assuming I have posted such content. You're skating close to committing libel, sir.

          You also haven't answered the question: What constitutes sufficient credit of the source?

          • by mark-t (151149)
            Sufficient credit of the source is given when a person can use it to independently verify the origins of the copied content, even if they had not heard of it before. ie, author and publisher, date of publication, which tv station aired it if it was a video clip, and so on. But that's really only applicable where the copying fell under fair use in the first place. Copyrighted stuff being found on Youtube rarely illustrates examples of what would be fair use even _IF_ such credit was appropriately displaye
            • by HTH NE1 (675604)
              Well, we are talking about expanding what constitutes Fair Use here. He was saying the lack of proper attribution was "the shit going on" acting a barrier against a fair-use consideration(*).

              A citation should only require enough information to uniquely identify the the source material to facilitate its retrieval for comparison. For most TV content, title (with disambiguation as necessary), season and episode number (1x04) or production code number (#7G04) for a TV series, and the work's copyright notation
  • So taking a 5-second clip of Dragon Ball Z and changing the play speed to create a 5-minute masterpiece is fair use, right?
    • Re: (Score:3, Funny)

      by rootofevil (188401)
      no, because then youd be infringing on their patent on 'a process or system for drawing out 4 minutes of story or animated tale into a 30 minute episode'

      its in there, i just looked it up.
    • by techpawn (969834)
      You make DBZ clip into 5-minute masterpiece by taking out the "powering up" Actually, you're left with about 2 minutes of useable footage.
    • You mean, like, stretching that 5 seconds of content to the whole 5 minutes? I think the show already does that with its content.
  • by cerelib (903469) on Friday August 10, 2007 @02:11PM (#20185899)
    Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders. The problem is that a copyright holder should not be reasonably expected to scrape all of YouTube and all other similar sites every day/hour to look for violations just to have somebody else repost the video after it is taken down. I believe in fair use, but YouTube just spits in the face of copyright holders by throwing up their hands as if it is completely beyond their control. YouTube doesn't want to invest the time and money to perform their due diligence, but expects copyright holders to do it for them. It is clear that the laws on the books were written when publishing or broadcasting content was out of the reach of normal people. The law does not reflect any of the challenges faced by the current situation.

    Perhaps a video takedown should also spur relinquishing all profits generated by the infringing video to the copyright holders. Perhaps then the copyright holders would see hunting violating clips on YouTube a worth-while use of time and YouTube would be more careful about what they allow to be posted. Of course, YouTube would probably give the excuse that it would just be too hard to track earnings in such an isolated way.
    • by bidule (173941) on Friday August 10, 2007 @02:37PM (#20186273) Homepage

      Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.
      How is that different from the non-eWorld? How does YouTube videos compare to fake Gucci bags or CDs?

      If a second-hand CD store sells illegal copies, is it the store owner's fault? Same thing for stolen goods. If he bought them in good faith, you can't really put the blame on him.

      An even closer example: should a flea market owner verify that every stall rented contains only genuine goods? Or should it be the copyright owner's job to pay someone to make the rounds.

      You cannot ask for stricter controls because it is the Internet.
      • by cerelib (903469)
        If you bother to read my whole comment, I stated that the current laws clearly were not written with this kind of situation in mind. In the cases you mentioned, there is always human interaction. If a customer tries to sell blatantly illegal copies of a CD, the shop clerk would see this and not accept the CD. That is performing due diligence. I don't think anybody would hold the store at fault if they accidentally purchased an exact copy that they believed to be valid. YouTube is not performing such du
        • Re: (Score:3, Insightful)

          by bidule (173941)
          You are perfectly right, but I think you are conflating the container with the content. OTOH, I am conflating mixes with bland copies. But it is extremely difficult to map YouTube into real-world examples where the law and ethics are well explored.

          When a store owner buys back a used CD, he will just look at the container - jewel box and disc. He will not play the content to validate it. If a child porn ring uses fake CDs of obscure band as exchange material, the store owner will not realize he has illegal m
          • by cerelib (903469)
            Do child porn rings really do that? That is a pretty smart idea. I can just see the headlines now, "Why do child pornography rings and Al-Qeada sleeper cells frequent used music shops!? Find out more at 10:00!"
    • by Opportunist (166417) on Friday August 10, 2007 @02:38PM (#20186291)
      YouTube just spits in the face of copyright holders

      That's allright. Copyright holders spit in the face of their customers.

      The problem is that the fronts have been entrenched to the point where meaningful discussion is near impossible by now. Both sides, the content industry and the content users, would rather see the other side sink than give them an inch, thinking that giving an inch leads to getting a mile taken.

      And for a fact, both sides are right in that assumption.

      Also, the content industry is quite wary of having copyright laws examined in the "light of recent development". It would invariably bring topics to the table like the length of copyright, which has today no longer the same reason to be near infinite that it was 200 years ago (when the better part of 5 years could pass between conception and publishing, especially in countries that had heavy censorship where you could wait 2 and more years for clearance from the censuring body alone).

      The primary problem remains, that neither side actually wants "mutually acceptable" copyright terms.
      • by cerelib (903469)

        That's allright. Copyright holders spit in the face of their customers.
        Don't lump all copyright holders together like that. Not every person who writes a song, book, etc is bad just because the laws governing their rights are not fair. The idea of copyright is good because it can protect the right of content creators to make money from their work, but the current laws governing copyright in the United States are bad.
        • by HTH NE1 (675604)

          Copyright holders spit in the face of their customers.
          Don't lump all copyright holders together like that. Not every person who writes a song, book, etc is bad just because the laws governing their rights are not fair.
          Show me the copyright holders that release their works to Creative Commons or Public Domain within their lifetime or that of their contemporaries (preferably within the original duration of copyright) and I'll give them respect.
        • I don't question the idea. The idea itself is good. I mean, I come from a country where artists had a very, very hard time 'til the advent of copyright, they had to find some royalty to sponsor them because they did not get royalties for their work (...ponder... is that where the term royalties as "money for using copyrighted work" comes from?).

          An artist without a sponsor, especially musicians, composers and other artists of "reproducing" works (as compared to painters and sculpters) had the problem that th
    • Re: (Score:3, Informative)

      by langelgjm (860756)

      Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders. The problem is that a copyright holder should not be reasonably expected to scrape all of YouTube and all other similar sites every day/hour to look for violations just to have somebody else repost the video after it is taken down. I believe in fair use, but YouTube just spits in the face of copyright holders by throwing up their hands as if it is completely beyond their control

      • by cerelib (903469)
        Check another one of my replies for examples of "due diligence". My point is that YouTube is not performing due diligence. To do so would, and could, never weed out all violating material. If they had humans screening every clip they could weed out the ones that blatantly violate copyright such as the clips that are merely photo slideshows with some musicians newest song playing. But, like I said, they hide under the fact that their immense volume would make doing this too expensive to still turn a good
      • I think the responsibility absolutely should lie with the copyright holder.
        And so did Congress when it enacted the Digital Millenium Copyright Act [cornell.edu].
    • by Tomun (144651)
      YouTube doesn't want to invest the time and money to perform their due diligence, but expects copyright holders to do it for them.

      Yeah, and Slashdot should pay someone to read every post submitted by its users to verify that it doesn't contain copyrighted material. This post for example contains a blatant copy of part of your copyrighted post. This should be referred to Slashdot's specialist copyright lawyers to determine whether I've overstepped fair use, before making my post readable by the public.
      • by mark-t (151149)
        Your copy of the parent post falls under the jurisdiction of fair use, however, as you were quoting for the purpose of responding.
    • The problem is that a copyright holder should not be reasonably expected to scrape all of YouTube and all other similar sites every day/hour to look for violations just to have somebody else repost the video after it is taken down. . . . YouTube doesn't want to invest the time and money to perform their due diligence, but expects copyright holders to do it for them.

      But if YouTube is responsible, then the cost of enforcement is simply shifted from one set of copyright holders to another - i.e. to those w

      • YouTube is not a simple hosting service. YouTube is blindly serving content from unknown sources for ad-generated profit on pages it completely controls. As long as they do that, they should carry the accountability. If they instead move to a model that places ownership, profitability, and accountability to the uploaders, then they can stand on the same legal leg that an ISP stands on by being a middle-man service provider. Any takedown requests would be forwarded to the users uploading infringing conte
    • You, sir, are either a troll or a fool... or perhaps a shill.

      The laws in question aren't some 1820s carry-over into the modern era, but the DMCA, passed, what, 12 years ago? Your assertion that it's "too hard" for copyright holders to police their own work is unsupported, and absurd in consideration of your demand that YouTube police EVERYONE's material. If a copyright holder can't tell what is and isn't placed fairly on YouTube, how do you expect YouTube to tell? That's why the law was written as it is, assigning blame to whoever uploaded the content, not the provider of the content-delivery-platform.

      As it stands, ALREADY your poor copyright-cartel members (and merry pranksters) are abusing the law to demand take down of LEGITIMATE fair-uses of content. If anything, the law should be relaxed more, replacing the immediate take-down requirements with a grace period, allowing the offending user to contest (or acquiese) to the take-down request.

      The REAL issue here is one of societal benefit; since that is, constitutionally, the reason copyrights exist. And the advantages to society of fast and open communications (be it by posts to Slashdot or video post to YouTube) FAR OUTWEIGHS the "damages" of having a few extra seconds more of some cartel-owned clip than fair use would allow floating on YouTube for a few weeks before the owner notices.

      Copyright does not exist to wring the most dollars out of the most "consumers"; it exists to encourage the creation of arts for the benefit of society. YouTube is a net benefit to society.

    • If the amount of infringement outstrips the copyright holder's ability to police, perhaps the copyright law should be updated to permit it, not forbid it. The law should serve the interests of the populace and not be weighted by their net worth.
    • Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.

      I would be interested to know of anyplace that had free speech and which didn't place this sort of burden on the copyright holder. Certainly, I can't imagine why it would be sensible to place the burden on a third party who neither has knowledge of what material is copyrighted, and what material infringes on those copyrights. A copyright holder is in the best position to know wha
      • by cerelib (903469)
        I did not say "takedown notice", I said "takedown". If they do admit to serving infringing material then they most likely also made money from copyright infringment. Last time I checked, you are not allowed to profit from your crimes. If they are allowed to keep the profits then a precedent is set to let them serve and make money off illegal content until somebody catches them. At which point they say, "oops, sorry", take it down, and some user just posts it again under a different title. That is defini
        • I did not say "takedown notice", I said "takedown". If they do admit to serving infringing material then they most likely also made money from copyright infringment.

          ISPs don't ordinarily take down materials sua sponte because they're worried about it infringing. Normally, they only do so in response to a takedown notice, and not because they actually care, but because it is part of the procedure that they can follow in order to protect themselves very well from an infringement suit. Further, merely because
          • by cerelib (903469)
            This discussion is about YouTube, not ISPs. YouTube's current business model as a content distributor is clearly different than that of a typical ISP that acts as a courier.
            • For copyright purposes, YouTube is an ISP, actually. Remember, there are several essential Internet services: providing raw connectivity; search engines and indices; providing storage space for users (e.g. for their web pages, for their email, for their humorous amateur videos, etc.), and; caching oft-requested information. I imagine that my fellow /. users could list many more, but these four services are what the law currently deems worthy of protection. If you provide any of them, then you are an ISP wit
    • Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.

      That's their line. Their method is kind of a grey area, their interpretation hasn't been tested. I think Safe Harbor is the only sensible thing about the DMCA.

      The problem that I see with your method is that it makes the site into babysitters. User generated media becomes irrelevant if it that much work to vet every piece that goes into it, so your argument would have the conse
      • by cerelib (903469)

        User generated media becomes irrelevant if it that much work to vet every piece that goes into it

        Perhaps the problem lies in YouTube not fully embracing the idea of user generated content. Since YouTube currently is the one making all of the money (I have heard of possible changes, but do not know any specifics) through ad-generated profit, the content becomes theirs when it is uploaded. If YouTube went to a model that placed real accountability and profitability into the hands of the users, then they would have a case for shifting the blame to the users. Their current model seems to take advantage

    • by Alchemar (720449)
      You have managed to state that copyright law clearly places the responsibility of reporting the copyright violation onto the copyright holder, and state that YouTube is spitting in the copyright holders face by requiring them to report the violation as the law requires instead of doing it themselves.

      This may help to clarify: http://en.wikipedia.org/wiki/Contradiction [wikipedia.org]
      • by cerelib (903469)
        I was not contradicting myself. I was trying to point out that YouTube is taking advantage of the law. Their position is simply unethical. (This example has been used a few times in this thread now) Look at a used CD store as an example. If they started buying burned CD-R copies of albums from customers and selling them, that would be completely unacceptable. Would it be fair for them to say, "What do you expect me to do? The customer said it was real."? No, instead they look at the CD-R and tell the c
        • by Alchemar (720449)
          Then may I suggest not arguing a point of being unethical by citing that the law is on their side.

          As to your current example, In one you are talking about a physical conterfeit and the other about an electronic copy. If it an obvious conterfeit then the record store is under legal obligation to refuse the transaction. If it is a conterfeit of high enough quality to fool all but an expert, they are no longer under that obligation. While they both contain copied material, it is hardly an equal compariso
          • by cerelib (903469)
            You make some good points, but your last point seems to illustrate the problem. Assume that Comedy Central tells YouTube to stop serving any clips of the Daily Show longer than 30 seconds. YouTube can take down the current clips, but does not seem to have the infrastructure to make sure no more clips are successfully uploaded. This leads to Comedy Central having to regularly police YouTube to make sure such content gets taken down. The copyright holder should not have to constantly police YouTube when t
    • by Speare (84249) on Friday August 10, 2007 @04:25PM (#20187967) Homepage Journal

      Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders. The problem is that a copyright holder should not be reasonably expected to scrape all of YouTube and all other similar sites every day/hour to look for violations just to have somebody else repost the video after it is taken down.

      In the past, the big publisher could/would only prosecute the violator if they were able to find out about the violations; in essence, if the violations were big enough and actually cost the publisher some honest-to-capitalism bottom line, then they would get stomped with hefty fines. ObDisney: A brick and mortar storefront in Queens selling thousands of VHS tapes of Bambi for a buck a pop would get prosecuted quickly, while it would be very rare for a daycare with a painting of Mickey on its walls to get prosecuted.

      In today's world, the big publisher has MORE opportunity to find SMALLER infringements, and wants to continue wielding the big prosecution stick for EVERY one of those piddly-ass violations. Yet they still want third-parties to help them police the world for THEIR property. ObDisney: Not only do daycares that made Mickey murals get shut down under massive legal and financial threats, but so do otherwise perfectly normal teens who post personal lipsync-Beauty-and-the-Beast-songs videos onto community pages.

      The huge fines were designed from a time when it was expected that only 0.0000001% of the actual piracy would ever get found to be prosecuted, and found only because it was a real and egregious dent in real sales. Now that the web exposes so much of the casual ways that trivial amounts of copyrighted material becomes woven into the experience that is culture, corporations are all drooling at the chance to win huge fines from thousands or millions of little sources, regardless of actual damages inflicted.

      • In the past, the big publisher could/would only prosecute the violator if they were able to find out about the violations; in essence, if the violations were big enough and actually cost the publisher some honest-to-capitalism bottom line, then they would get stomped with hefty fines. ObDisney: A brick and mortar storefront in Queens selling thousands of VHS tapes of Bambi for a buck a pop would get prosecuted quickly, while it would be very rare for a daycare with a painting of Mickey on its walls to get prosecuted. In today's world, the big publisher has MORE opportunity to find SMALLER infringements, and wants to continue wielding the big prosecution stick for EVERY one of those piddly-ass violations. Yet they still want third-parties to help them police the world for THEIR property. ObDisney: Not only do daycares that made Mickey murals get shut down under massive legal and financial threats, but so do otherwise perfectly normal teens who post personal lipsync-Beauty-and-the-Beast-songs videos onto community pages. The huge fines were designed from a time when it was expected that only 0.0000001% of the actual piracy would ever get found to be prosecuted, and found only because it was a real and egregious dent in real sales. Now that the web exposes so much of the casual ways that trivial amounts of copyrighted material becomes woven into the experience that is culture, corporations are all drooling at the chance to win huge fines from thousands or millions of little sources, regardless of actual damages inflicted.

        Excellent analysis, Speare. As someone who has been working in copyright law since 1974, I agree that what is going on today has absolutely nothing to do with copyright law as it was intended to be, or copyright law as it has historically been practiced. It is an aberration, one that makes no sense.

        Your points will become part of the discussion of the question of whether trying to assess statutory damages of $750 per song file [blogspot.com] -- when the lost profit for the song file is about 50 cents -- is unconstitutio [ssrn.com]

        • by Speare (84249)

          I'm gratified by your reply, Mr. Beckerman.

          I've never had any real legal reason to be interested in copyright, but I could probably guess my interest in the issues of C P T S (Copyright, Patent, Trademark, Secret) or "IP" law and ethics to about 1974 also. I was a little kid, wondering what the stamp of 'PAT PEND.' meant when I saw it inside every little Lego(tm) brick I touched, why Megablox never quite fit with Lego even though they were supposedly "compatible", or why the Lego pamphlets implored regul

    • Google/YouTube hides under the fact that US copyright law puts the responsibility of reporting violation on the copyright holders.

      YouTube isn't "hiding behind the law". Its very business model was based upon the existence of the law, the Digital Millenium Copyright Act [cornell.edu].

      You seem to be under the impression that the "law" exists just to serve the interests of the Big 4 record companies and several major motion picture companies, and that to the extent the law protects anyone else it's unjust.
      Your dozen or so comments all have that flavor.

      • by cerelib (903469)
        Personally, I hate the "Big 4" record companies, but they are not the ones that I want to protect. Those organizations have the money and power to fight companies like YouTube with hordes of lawyers. They will fight to keep their profit margin even when their business model is becoming more obsolete every year. My concerns are to the copyright holders who don't have that kind of money and power. The ones who, whether by choice or not, are not represented by large corporations. It is simply not a reason
  • by circletimessquare (444983) <circletimessquare&gmail,com> on Friday August 10, 2007 @02:18PM (#20185977) Homepage Journal
    copyright law was originally intended to reward content creators for their work, to give them incentive to create content. however, copyright law has been hijacked by the economic middlemen, the distributors, such that the reward content creators get doesn't matter anymore (and is significantly reduced)

    and we are supposed to respect this. why? why must we respect this?

    copyright law has been inculcated and grown according to corporate interests nowadays and has morhped into something completely different form its original purpose. it's a cancer. and now it threatens to kill the public domain, making increasing incursions on what is considered free and fair use

    hey, how about most everything is free and fair use, and fuck you to corporate-backed copyright law? is that crazy? who tells you that's crazy? the corporate-backed lawyers?

    copyright law itself is the problem, the notion of intellectual property itself is the problem. it has been warped form its original purpose and has been corrupted. it's cancerous corporate growth fueled by the almighty buck, and now it threatens to kill the very creative centers that their money comes form in the first place

    here's an idea dear corporate music and corporate video: you can extend the copyright on mickey mouse forever, and pump cash out of that icon forever. and you will get diminishing returns over the years. or you can let it go, and watch your "property" morph into a million stepchildren, one of which will be the next mickey mouse for you to pump money out of

    in other words, if you relaxed on the stifling laws and their continued growth, and backed off a bit, you might be surprised to find the emergence of more properties for you to exploit. those properties come from somewhere: creative ferment. but right now your laws stifle and lay waste to that very same garden of creative ferment that your life blood runs from. and you are too oriented to the almighty covetous greedy buck, too shortsighted to see, that the continued cancerous growth of your laws (they certainly aren't the public's laws) is killing your future growth. you'd rather bleed fossil intellectual property assets then relax and let more modern and vital ones be born. because you bleed the creative commons dry with your laws. if you covetously protect your "property" from the public domain to the bitter end, you actually wind up with diminishing returns

    the whole idea of intellectual property in the very first place was to provide for a comfortable and ratinoal boundary between private domain and public domain. but under the tutelage of legions of corporate lawyers and the thirst for more money, it has grown into a cancer, that frankly, needs to be broken before it gets fixed. because there is no incentive for corporate lawyers to respect the public domain

    and so the public domain must go "illegal". copyright law and intellectual property has ceased to resemble anything moral or even financially sound anymore. all it does is kill our shared free public cultural riches for a set of diminished fossilized corporate private riches

    ip law is corrupt and broken. don't respect it. it deserves to be broken. do your best to break it

    • Re: (Score:3, Insightful)

      by Opportunist (166417)
      You put the finger right on the problem. Copyright law was not meant to reward the middleman between creator and consumer, but the creator. Though this is not true for all countries. The US have shifted creator protection to content owner protection, and this is usually not the creator in today's world.

      Earlier, studios held artists in their stranglehold with their more or less monopoly in production means. Who had the money to buy that ass expensive studio equipment? Who could afford pressing records? They
    • by raehl (609729)
      Correct me if I'm wrong here, but I get the feeling you're not a big fan of the current copyright system....
    • by m3tr1k (1033906)
      As Nate Harrison so eloquently quoted:

      "Over protecting intellectual property is as harmful as under protecting it. Culture isn't possible without a rich public domain. [...] Culture, like science and technology, grows by accretion..."

      ~Federal 9th Circuit Court of Appeals Judge, Alex Kozinski

      http://nkhstudio.com/pages/amen_mp4.html [nkhstudio.com]
      http://youtube.com/watch?v=5SaFTm2bcac [youtube.com]
    • "Creative ferment." I like that. Much like how a garden with steel walls and ceiling to discourage thieves will inevitably die.

      Although I don't agree with breaking the law to change the law, that just pisses off lawmakers.
  • About time (Score:3, Informative)

    by JustJim0183 (747076) on Friday August 10, 2007 @02:20PM (#20186017)
    I was thinking of putting together some technical podcasts and wanted to Jazz it up a bit with 5 - 10 sec introductory clip.

    Being a law abiding individual, I looked into getting a license. What a nightmare! there are restrictions on how often the clip could be played, how many ppl could listen to the clip, etc. In addition to that, there were reporting requirements (I would have to report to the Licensee how many ppl listened to a given clip in a month).

    And then there was the expense. For me to acquire an individual license was going to cost thousands of dollars. Some fancy googling and I found a site where I could, in effect, 'share' a licsense for $20 per month but that would only entitle me to 5,000 listener hours (which, of course, I would have to report).

    Forget it. Too expensive and too much effort.

    Just one real world example of how the lack of a rational fair use policy killed a project
    • Some folks just get a bunch of musicians to do something that sounds similar to what you want to do. The best example is the "Rutles". That show had a bunch of "Beatles" sounding music, but none of it was.

      Fighting is a losing battle. Go around, over, under, or sideways or anything else legal that will make them realize that they are losing revenues by being too tight.

    • Not only the project, but also revenue for the owner of the clip you wanted to use. It would not have reduced its value, you would not have used the whole work. Instead, it would have been something akin to a jingle. Maybe they would have even benefited from it, when your listeners connect that song to your show, i.e. to something they enjoy, and they would have bought it.

      Even if not, you might have paid, say, 20 bucks a month and that would've been 20 bucks they had. For, essentially, nothing. At the very
    • If you would be ok with using independent music clips for your podcasts, there are several licensing options that should come out much cheaper and more convenient for you:

      magnatune.com [magnatune.com] youlicense.com [youlicense.com] flicktracks [waxfruit.org] ioda promonet [iodalliance.com] pumpaudio.com [pumpaudio.com]

      If you wanted clips from Beatles, Rolling Stones, etc type music, forget it. It's just impractical for the little guy. Maybe you could do like someone else suggested here and get a band/musician to cook something up that sounds like the song you want.

  • of both Canada and the US.

    In fact, I have registered copyrights on file with both the US Library of Congress and the Canadian equivalent - which cost me money to file.

    When I or my son make a video, we are Canadians, and we ignore the Soviet-style illegal "laws" of the US.

    Fair use is international law - not US only. Not what US courts say.

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