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A Second Lessig Fair-Use Video Is Suppressed By WMG

kdawson posted more than 4 years ago | from the irony-abounds dept.

Censorship 187

Bios_Hakr points out an ironic use of the DMCA: for the second time, a video tutorial on fair use that Larry Lessig uploaded to YouTube has been muzzled. This time the sound has been pulled from the video; last time the video was taken off of YouTube. (Video and sound for the new "webside chat" can be experienced together on BlipTV.) Both times, Warner Music Group was the party holding copyright on a song that Lessig used in an unarguably fair-use manner. TechDirt is careful not to assume that an actual DMCA takedown notice was issued, on the likelihood that Google's automatic copyright-violation detectors did the deed. "The unintended consequences of asking tool providers [e.g., Google] to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright. This is backwards. We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas — not lock it up and take it down because one company doesn't know how to adapt its business model. We should never be silencing videos because they might infringe on copyright."

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187 comments

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Oh cmon! (0, Offtopic)

Jorl17 (1716772) | more than 4 years ago | (#31337292)

Slashdot users, go away! The video is starting to stop! You are SLASHDOTTING IT!!

And why do we care about youtube or WMG? (0)

Anonymous Coward | more than 4 years ago | (#31337598)

Protip: Stop browsing youtube, find better sites such as vimeo.

Freedom of speech .. (2, Insightful)

johnlcallaway (165670) | more than 4 years ago | (#31337294)

.. does not give you the right to use someone's property to express it. There are no protections in the Constitution that says a newspaper can't create rules for printing editorials, or YouTube can't determe what can and can't be displayed.

Don't like it .. start your own newspaper or video service. Or use Vimeo [vimeo.com] . I've stopped using YouTube for all my videos because of their copyright take down actions.

Re:Freedom of speech .. (3, Insightful)

Anonymous Coward | more than 4 years ago | (#31337380)

"Freedom of speech ... .. does not give you the right to use someone's property to express it."

Yes, you are right. It is copyright law that gives the right, in the circumstance that the use qualifies as "fair use".

Re:Freedom of speech .. (5, Insightful)

Annymouse Cowherd (1037080) | more than 4 years ago | (#31337436)

No. Google is still allowed to take down any videos they want on YouTube, regardless of their status as fair use.

Re:Freedom of speech .. (4, Insightful)

MindlessAutomata (1282944) | more than 4 years ago | (#31337466)

The problem is, they do this because of copyright law, not because they want to.

Re:Freedom of speech .. (2, Insightful)

Annymouse Cowherd (1037080) | more than 4 years ago | (#31337522)

Yes, but Google can avoid the hassle of evaluating on its own whether each video is fair use by just removing the videos WMG claims violate copyright without a double-check.

Re:Freedom of speech .. (0, Troll)

tsm_sf (545316) | more than 4 years ago | (#31337608)

Wow, look at all the fascists who came out to play. You guys fucking creep me out.

Re:Freedom of speech .. (3, Insightful)

jdcope (932508) | more than 4 years ago | (#31338252)

Wow, look at all the fascists who came out to play. You guys fucking creep me out.

It helps if you actually read the Constitution. It only keeps the government from interfering with free speech of the citizenry. You can yell, write it on paper, whatever. But as soon as you use a private media outlet to stand on your soapbox, you are at the mercy of said media outlet. If the media outlet was owned by the govnernment, that would be a different story. Although, lately it is hard to tell the government from the corporate media.

Re:Freedom of speech .. (0, Troll)

tsm_sf (545316) | more than 4 years ago | (#31338446)

We're talking about fair use and the freedom of speech. Not the first amendment. Free speech does not begin and end at the first amendment, even though many people would like that to be the case.

The infuriating thing about the teabagger constitutionalists, to me, is that the very things they rail against the government for they happily take up the ass from other sources. You're either for freedom of speech or you're against it. There's no middle ground here. Unless, of course, you can't speak due to all the corporate cock in your mouth.

Re:Freedom of speech .. (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#31338514)

The infuriating thing about the teabagger constitutionalists, to me, is that the very things they rail against the government for they happily take up the ass from other sources. You're either for freedom of speech or you're against it.

lolwut?

put down the crackpipe before posting, m'kay?

Re:Freedom of speech .. (3, Insightful)

Kalriath (849904) | more than 4 years ago | (#31338642)

Wait, what? The corporations are formed of people. These people have the same right to freedom of speech as you do, and in their house they have the right to say "my house, my rules. Don't like it, leave". Freedom of Association I think it's called.

Re:Freedom of speech .. (2, Insightful)

jdcope (932508) | more than 4 years ago | (#31338854)

Absolutely. You can use my bullhorn for your speech, but if you say anything I dont like, or may get me in trouble, I get to take my bullhorn away. There is no guarantee to free speech. There is only a guarantee that the government cant punish you for saying it.

Re:Freedom of speech .. (1)

Teufelsmuhle (849105) | more than 4 years ago | (#31338546)

In other words, if you don't want it to be taken down without a fight, you better host it yourself. Don't count on one mega-corporation to protect you from another. I don't condone the actions of either corporation in this case, but (at least for now) we all retain the right to take our business elsewhere if we don't like what they are doing.

Re:Freedom of speech .. (5, Insightful)

twidarkling (1537077) | more than 4 years ago | (#31337530)

Irrelevant. Talking about freedom of speech as it relates to private companies is taking the argument in the completely wrong direction. The guy basically crippled himself by bringing up freedom of speech.

Re:Freedom of speech .. (5, Insightful)

Sloppy (14984) | more than 4 years ago | (#31338502)

It's not irrelevant. If it wasn't for the threat of government force being used against Google, they wouldn't be taking down (hardly) any videos.

Congress is involved in this. Congress did things which caused this to happen, and Congress making some pretty common-sense changes to the DMCA's notice/counternotice procedures for handling liability issues, would make it stop happening. All they have to do is put a price/deterrent on sending fraudulent DMCA notices, and this chill on speech that they created and is manifested on private servers, would be lifted.

It's a free speech issue.

Re:Freedom of speech .. (1)

jdcope (932508) | more than 4 years ago | (#31338274)

The problem is, they do this because of copyright law, not because they want to.

No, they do it because of lawsuits. Google has big pockets, so they are a target.

Re:Freedom of speech .. (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31338322)

The problem is, they do this because of copyright law, not because they want to.

No No No.

Where in the Copyright code does it say you must proactively ban things that MIGHT be protected by copyright?

Re:Freedom of speech .. (0)

Anonymous Coward | more than 4 years ago | (#31337480)

Google is cowering their ass to avoid the worst case scenario, where fair use is just tossed to the wind. It doesn't mean Google is doing the right thing. They should be at the forefront of the fair use fight. Instead, they're just another cowardly money-first corp.

Re:Freedom of speech .. (1)

Jakester2K (612607) | more than 4 years ago | (#31338132)

Google is cowering their ass ....

Interesting Freudian slip there....

Re:Freedom of speech .. (2)

emarkp (67813) | more than 4 years ago | (#31337698)

No, the founding documents of the USA state that all rights come from the creator. "Copyright" is a law (well, set of laws) created by our society to temporarily (hah!) grant exclusive permission to one entity to copy something. However, that permission is not universal -- fair use and archives are examples of where copyright does not apply.

Re:Freedom of speech .. (3, Interesting)

Darkness404 (1287218) | more than 4 years ago | (#31337458)

That doesn't mean that they can tell you its illegal and remove it.

Its like this, I own a billboard company, I can choose which advertisers can and can't advertise on there. However, it becomes a bit tricky if I say "I can't print this, this is illegal" when its not. Of course Google can do whatever they want to, the problem is, they are saying something is illegal when its not.

Re:Freedom of speech .. (4, Interesting)

Barny (103770) | more than 4 years ago | (#31337520)

No, their automated system is saying "this might be illegal", the user does have the right to challenge it, I have and won before (in one, google claimed a nine inch nails song was copyright, and yes the version released by the record company was, I used the version from remix.nin.com, which is creative commons licensed).

Re:Freedom of speech .. (5, Insightful)

tomhudson (43916) | more than 4 years ago | (#31337668)

The whole DMCA thing really needs to be revisited. The penalties for false declarations aren't cutting it. It's pretty bad when someone can cause you grief by filing a false DMCA notice on material they don't even own the copyright to [transboutique.com] to try to stifle discussion! It's the new version of a SLAPP suit - far cheaper, since it only takes an email, and lots of people cave in immediately because it's not worth the hassle, or because they don't want their hosting provider to decide that their business just isn't worth it, even though they've done nothing wrong.

Under penalty of perjury (1)

tepples (727027) | more than 4 years ago | (#31338474)

It's pretty bad when someone can cause you grief by filing a false DMCA notice on material they don't even own the copyright to

Yes, someone can cause you grief by committing perjury in a takedown notice. But then someone can also go to jail.

Re:Under penalty of perjury (0)

Anonymous Coward | more than 4 years ago | (#31338754)

And so far they've never been found guilty of it because they've been able to stretch the meaning of "in good faith".

Lenz v. Universal (4, Informative)

tepples (727027) | more than 4 years ago | (#31339066)

And so far they've never been found guilty of it because they've been able to stretch the meaning of "in good faith".

They haven't been found guilty of perjury yet. In Lenz v. Universal, on August 20, 2008, Judge Jeremy Fogel held [eff.org] that sending a takedown notice under OCILLA without giving the first thought to whether the use of a work is a fair use is misrepresentation:

An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. [...] The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

Re:Freedom of speech .. (1)

nextekcarl (1402899) | more than 4 years ago | (#31338368)

Out of curiosity, how long did your appeal take and how many hoops did you have to jump though?

Re:Freedom of speech .. (2, Interesting)

tepples (727027) | more than 4 years ago | (#31338558)

I've had two auto-matches (Cryptomnesia: Animal Crossing [youtube.com] and Cryptomnesia: Vertigo [youtube.com] ) and one OCILLA takedown (THIS FAN GAME VIDEO WILL BE FLAGGED [youtube.com] ) against me on YouTube. Disputing the auto-matches was as easy as checking the "this use does not require the copyright owner's permission" and writing a 140-character fair use rationale in the reason box. If you've ever written a rationale for Wikipedia, it should be a doddle. The OCILLA takedown was more difficult to dispute; I had to install PGP support into my e-mail client, reveal my mailing address, and affirm my fair use rationale under penalty of perjury.

Re:Freedom of speech .. (1)

Barny (103770) | more than 4 years ago | (#31339118)

Yeah, mine was like your first one, easy as anything (provided a link to the site, a link to their CC license and a link to the song (harder to do on such a dynamic site, but doable)).

Re:Freedom of speech .. (1)

Barny (103770) | more than 4 years ago | (#31339146)

Oh and about 2-3 days :)

Re:Freedom of speech .. (1)

twidarkling (1537077) | more than 4 years ago | (#31337560)

problem is, they are saying something is illegal when its not.

I don't believe they've actually said it's illegal. If they receive a DMCA, they take the video down. They don't investigate. They're not making any kind of judgement. If it trips their "copyright infringeor detector," they take it down, they don't say "hey, it's illegal." Most you'll get is probably "this video has been taken down due to a ToS violation" or "at the request of" notifications.

Re:Freedom of speech .. (5, Interesting)

EdIII (1114411) | more than 4 years ago | (#31337850)

That doesn't mean that they can tell you its illegal and remove it.

Not so sure about that. It's a free service, they can certainly remove the video. It's their servers. I am not playing Devil's advocate here or anything, but a lot of these protestations about Free Speech are concerning activities that are happening on private property . I have a problem with telling YouTube that it must host content, any content, regardless if I agree with it or not.

What I do have a problem with is when the DMCA is abused. If WMG used the DMCA to attempt to force YouTube into taking down the video, that is a different matter entirely and one that falls into oppression and suppression of Free Speech. It's not just YouTube either that is harassed in this fashion. Plenty of web site owners, hosting providers, ISPs, get this bullshit all the time in an effort to suppress Free Speech, transparency in government, unpopular speech, etc.

We don't know if this was YouTube's decision (within their rights) or simply a reaction to DMCA take down requests by WMG (They decided to cave in to the demands more easily than we would like).

I fail to see how YouTube is not within it's rights to do any of this.

they are saying something is illegal when its not

AFAIK, they are not doing that at all. That's what confuses me so much about this. I get notices all the time:

Dear XXXXXXXXXX,

Your video, XXXXX, may have content that is owned or licensed by XXXXXXX Group.

No action is required on your part; however, if you are interested in learning how this affects your video, please visit the Content ID Matches section of your account for more information.

Sincerely,
- The YouTube Team

They never actually stated it was illegal. Only that there was a possibility it was. I was not told I had to do anything either.

I have received hundreds of these notices as well, and to date, I have not had any videos removed at all. This probably is *not* the automated fingerprinting at YouTube doing this. I would bet it is a reaction to a take down notice.

Even if they did state it was illegal, when it was not, how is that 'illegal'? I assume that is what you mean when you say, 'they can't'? Or did you mean to say, 'they shouldn't'?

People and businesses have a right to be stupid and say stupid things. Not libelous or slanderous things, but they have a right to say wrong and stupid things. We can also take our business elsewhere too.

In the end, I would not give so much grief to YouTube about this. They are just trying to survive in a corrupt in inequitable environment. What I would do is write a letter to WMG telling them that you have decided to not give them any business at all, and stick to your guns .

Re:Freedom of speech .. (1)

tepples (727027) | more than 4 years ago | (#31338598)

Content ID Matches

This probably is *not* the automated fingerprinting at YouTube

Actually, "Content ID Matches" is the automated fingerprinting. You'll get a more strongly worded notice for a takedown notice under OCILLA.

Re:Freedom of speech .. (1)

EdIII (1114411) | more than 4 years ago | (#31338658)

That was my point though. All of the Content ID notices (automated fingerprinting) that I have received have never resulted in a video being pulled. I have never receied a takedown notice either regarding them.

If the video was pulled I am very skeptical that it was the automated fingerprinting system that was directly responsible.

Re:Freedom of speech .. (1)

tepples (727027) | more than 4 years ago | (#31338910)

All of the Content ID notices (automated fingerprinting) that I have received have never resulted in a video being pulled.

If the Content ID matches the audio, it might get muted. If the Content ID matches the video, the whole thing might get pulled, or it might get pulled only in specific countries.

Re:Freedom of speech .. (1)

EdIII (1114411) | more than 4 years ago | (#31339016)

I'm just saying that I have received hundreds of these notices and have yet to receive any negative treatment of any kind regarding them.

So based on my own personal experiences, I am skeptical that it really is the Content ID system doing this at all. It is more than likely the action of a human being enforcing a policy or complying with a demand of some kind.

Re:Freedom of speech .. (1)

Dachannien (617929) | more than 4 years ago | (#31337478)

This isn't an argument specifically on one's Constitutional right to free speech. It's more about third parties performing censorship activities that they otherwise would have no reason to perform, except that they are unduly pressured by the content companies into performing those activities, to the detriment of their own customers, on the basis of flawed assertions of copyright and a deliberate misinterpretation of the safe harbor provision of the DMCA.

Re:Freedom of speech .. (1)

robot256 (1635039) | more than 4 years ago | (#31337966)

This isn't an argument specifically on one's Constitutional right to free speech. It's more about third parties performing censorship activities that they otherwise would have no reason to perform...

Which is why this looks more like a case of harassment, not censorship. But there is still no legal argument against Youtube, thanks to the all-denying EULA. And I expect would be difficult to prove some company pressured Google into taking down your video as a means of deliberate harassment.

Re:Freedom of speech .. (1)

91degrees (207121) | more than 4 years ago | (#31337624)

But YouTube wants to display the content. They just don't want to be held liable for alleged copyright infringement that they have no reasonable way of determining whether it's being violated.

If YouTube don't want this video that's fine but they're not making an unbiased decision here. WMG is pressuring the decision, backed by the government.

Re:Freedom of speech .. (3, Insightful)

bmo (77928) | more than 4 years ago | (#31337806)

>.. does not give you the right to use someone's property to express it.

Yes it does. It's called the fair use doctrine. Without which there would probably be no academic papers at all. There would be no movie or book reviews. There would be no informed criticism at all. There would be no parody.

Bad troll. No cookie.

People who modded you up are tools.

--
BMO

Re:Freedom of speech .. (2, Insightful)

EdIII (1114411) | more than 4 years ago | (#31338194)

You misunderstood him I think. He did not mean property, as in Intellectual Property, but rather property being the newspaper itself.

If am I correct about what he meant, then he is correct. Free Speech does not give you a right to publish in my magazine, or walk into my living room, to deliver your manifesto.

Other than that, you are correct. Fair Use is not well understood and the impression that we (the people) don't have the right to use Intellectual Property to in the ways you mention needs to be fought tooth and nail. Fair Use is not a real threat to the copyright owner, or artists. It never was.

Fair Use, IMHO, is the most deadly threat there is to 'replacement' sales. Big Media does not want you to make back up copies of what you have, because they want to force you to repurchase it for no good reason at all.

It's also beyond ridiculous to think that a home video with somebody's children featuring some background music is a threat to Big Media at all either.

Copyright needs some serious damn reforms. I thought the idea was to give artists and copyright owners in general and advantage for a short period of time to make a reasonable profit off their efforts and then it would become the 'property' of the people. Which is not really accurate either. The copyright's owner would simply lose the legal entitlements that we (the people) granted to him/her and then nobody would be able to make any legal claims against it whatsoever.

That's not what copyright is anymore. It's a permanent assignment of legal entitlements (we keep extending and modifying copyrights in that direction.. Disney..) that are being used to justify a horrific erosion of our rights, privacy, and freedoms and an unconscionable oppression of innovation and expression by the people it was supposed to serve in the first place... THE PEOPLE, as in WE THE PEOPLE.

Re:Freedom of speech .. (0)

Anonymous Coward | more than 4 years ago | (#31338458)

I think you are mistaken in assuming the word 'property' refers to 'content'. It clearly does not. In this case, 'property' refers to the infrastructure of youtube which is owned by Google, a private company. Google has zero obligation to host your rant on xenu and the lizard people.

Re:Freedom of speech .. (1)

selven (1556643) | more than 4 years ago | (#31338892)

You grossly misunderstood the parent. He does not mean that you can't use someone else's copyrighted stuff, he means that you can't force someone else to host your free speech on their servers.

Re:Freedom of speech .. (1)

Tanman (90298) | more than 4 years ago | (#31338930)

I'm sorry, sir, but you are wrong. There is no law that says google has to allow you to use Youtube to post your diatribes. The parent poster was not referring to the content of your expression, he was referring to the private owners' ability to refuse to allow you to post on their service since they own it and it's theirs.

I wish people would mod you down and mod up parent, since he is right and you are out-of-context.

this is not about free speech (1)

tobiah (308208) | more than 4 years ago | (#31337846)

This is about fair use of copyrighted material, the threat and confusion created by DMCA, and the problems caused by automated take-downs.

Re:Freedom of speech .. (0)

Anonymous Coward | more than 4 years ago | (#31338296)

DMCA has an obvious flaw, Takedown notices should be accompanied by a "copyright declaration" stating both that the issuer of the takedown notice is the copyright holder or agent with authority to speek for the copyright holder, and defines the work that that is infinged. This document is considered sufficent evidence for automatic purgory charges for the issuer on proof of false declaration. (as to the punishment range a court could hand down, the same punishment range as if someone committed purgory in a murder trial.)

Re:Freedom of speech .. (1, Informative)

ObsessiveMathsFreak (773371) | more than 4 years ago | (#31338390)

.. does not give you the right to use someone's property to express it.

Music is not property. Video is not property. Words are not property. Someone can have copyrights of some content, but that does not mean the content is somehow "theirs". It's supposed to mean they were the ones that created it, though it doesn't mean that anymore.

Mickey Mouse is not the property of the Disney corporation, no matter how much they stamp their feet about on the issue. He isn't their property because he can't be their property. Mickey Mouse is not a real mouse. He's not a thing. He's an idea. And you can't own an idea. However, in our great free society, you can control the distribution of an idea.

People own things. They can sometimes also own rights. Sometimes they can own rights over ideas. But they can't own ideas, or sounds, or images. I can't believe I've even making a post which has to explain this fact. This is where the madness of modern "intellectual property" pundits has lead us.

Argument over semantics (1)

tepples (727027) | more than 4 years ago | (#31338760)

Music is not property. Video is not property. Words are not property.

Wikipedia states: "Property is any physical or intangible entity that is owned by a person or jointly by a group of persons." A limited exclusive right to reproduce a work is an intangible entity, and it is owned by a person. Therefore, copyrights are property. Your argument boils down to one of semantics [c2.com] : saying a work of authorship is owned is a recognized whole-for-part shorthand [wikipedia.org] for saying that the copyright in that work is owned.

This is where the madness of modern "intellectual property" pundits has lead us.

As I see it, the problem with "intellectual property" isn't as much as the confusion among copyrights, patents, and trademarks. Just because copyrights, patents, and trademarks can cover the authorship, invention, and identification of the same work, and the exclusive rights associated with a work are licensed as a bundle, doesn't mean they're the same thing. Advocates of "intellectual property" downplay the fact that the various exclusive rights under the umbrella have different purposes and different scopes. For example, only copyright cares about provenance (the difference between copying and independent creation), and only patents expire.

Re:Freedom of speech .. (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31338806)

I'm pretty sure he meant "property" as in YouTube's servers. He wasn't talking about music or ideas.

Free Speech (2, Insightful)

Kraagenskul (828606) | more than 4 years ago | (#31337296)

Isn't guaranteed by companies.

Re:Free Speech (5, Informative)

twidarkling (1537077) | more than 4 years ago | (#31337394)

Thank you. Free speech isn't for allowing you to say whatever you want in a video that's being hosted by someone else. YouTube has every right to take down the video for absolutely no reason other than they don't like his face, if they so desire. Free speech means that the government is the one that simply cannot go to YouTube and tell them to take down the video without certain circumstances. Is it right that corporations have more ability to muzzle people than the government? I don't know. My opinion is that neither should be able to, barring defamation of character or other malicious speech.

However, that's currently beyond the scope of free speech as commonly enshrined in the laws of countries. It only applies to governmental abilities.

Re:Free Speech (1)

StillNeedMoreCoffee (123989) | more than 4 years ago | (#31338042)

Damn, I got it wrong, I thought that Free Speech was a right that could not be abridged by anyone, not even a Corporation. Are you absolutely sure of your facts? Now there is a contract involved with YouTube the EULA and thats what give them the right to abridge your freedom of speech, They don't have the right, outright to do anything they want to muzzle speech. They have a prior legal agreement with the poster on You Tube.

So be careful that you view it correctly. Corporations do not have the right to do anything they want. But you can give up your rights by agreement, but not always deemed legal even then, as in some rental contract provisions are deemed illegal, so they leave that language in to scare you but have a disclaimer that says if any individual provision is found to be illegal, that does not affect other provisions of the contract.

Just be clear about your rights.

Re:Free Speech (2, Insightful)

Anonymous Coward | more than 4 years ago | (#31338166)

You have this very wrong. YouTube is not a soapbox on the corner from which you can freely speak. They own their servers. just like you may own your house. If someone at your house is saying things you don't like you can make them leave. You have not in any way violated their free speech - you simply had them take it elsewhere. Google is under no compunction or force of law to host any particular content.

Re:Free Speech (2, Interesting)

LordLucless (582312) | more than 4 years ago | (#31338468)

Free speech is a right that can't be abridged by anyone. YouTube deleting videos from their own server, however, does not violate free speech. Nor does being asked to leave a store when you're distributing pamphlets, or me kicking you out of my house if you bust in raving about TimeCube. The only way your freedom of speech can be abridged is by preventing you from speaking at all.

The only entity that has the power to do this is the government (through jail, or injunction), so while free speech technically applies to all, the only ones that actually have the capacity to abuse it are the government, so, in practice they're the only ones it applies to.

Re:Free Speech (1)

theripper (123078) | more than 4 years ago | (#31338848)

If you come onto my property you abide by my rules. If I allow you to put a sign in my front yard you better be damned sure that I get some say in what is on the sign.

Same goes for corporations.

Stupidity on Lessig's part (0)

Anonymous Coward | more than 4 years ago | (#31338146)

Lessig seems a bit stupid to have used ANYTHING that would give studios and other parties ability to use DCMA on his videos. Maybe next time, they will have the sense to not use copyrighted music.

Re:Free Speech (0)

Anonymous Coward | more than 4 years ago | (#31338210)

Except that this is the DMCA -- a federal law -- which inhibits free speech by making it legal for corporations to enforce arbitrary restrictions on anyone's ability to communicate via today's most common media. Note that it's not Google that is taking the content down voluntarily, it's Time Warner effectively forcing them to do so.

If the government passed a law making it OK for the NRA to tear down pro-gun control billboards (or force the owner of the sign to take it down), that would be a violation of the 1st Amendment. Similarly, if a law was passed allowing the CoS to "silence" someone for spreading information about Xenu, etc. to the masses, that would be unconstitutional (not that CoS care if something is illegal, but that's beside the point). The DMCA's allowing Time Warner to force Google to take down a video against their will by doing nothing more difficult than sending an email, with no real chance of repercussion, is the same thing.

Re:Free Speech (1)

LordLucless (582312) | more than 4 years ago | (#31338406)

Is it right that corporations have more ability to muzzle people than the government? I don't know. My opinion is that neither should be able to, barring defamation of character or other malicious speech.

Corporations don't have more ability to muzzle people than the government. FoS was introduced because, absent that, governments have the power to prevent you speaking. Corporations only have the ability to prevent you speaking on their property - whether that be their main office or their server farm, they have the ability to ask you to leave. In other words, Google can't stop you from showing your video. They can stop you from showing it on YouTube. Take it to another provider, or host it yourself - your speech is still possible. If it was the government, they'd just shove you in jail and prohibit contact with the outside world. Now that is abridgement of Freedom of Speech.

A law like you seem to be wanting would be forcing corporations to use their property in a manner that they don't want. It would be analagous to, say, a PETA member papering your house with posters, and you being compelled to keep them there for fear of abridging their freedom of speech.

Re:Free Speech (0)

TheRealMindChild (743925) | more than 4 years ago | (#31338538)

YouTube has every right to take down the video for absolutely no reason other than they don't like his face

No they can't (necessarily). That would be discrimination against ugly people. You can't treat people different based on any defining traits.

How far does this go? (0)

Anonymous Coward | more than 4 years ago | (#31338726)

Could YouTube legally pull a video because it showed (fill in your particular racial/religious group) in a favorable light, and their management didn't like that?

Re:Free Speech (1)

BobMcD (601576) | more than 4 years ago | (#31337666)

Isn't guaranteed by companies.

But if they're benefiting from the internet, particularly using it is their primary vehicle for delivery, then it should be. The internet came into being funded by a government that cherishes the idea, and abandoning it now is morally reprehensible.

Free Speech is dead (just like your privacy) (4, Insightful)

tekrat (242117) | more than 4 years ago | (#31337310)

The contents of this post have been removed because they *might* harm some company's profit margin, and we know that in the USA, corporations are WAAAAY more important than people.

Re:Free Speech is dead (just like your privacy) (0)

Anonymous Coward | more than 4 years ago | (#31337732)

The contents of this post have been removed because they *might* harm some company's profit margin, and we know that in the USA, corporations are WAAAAY more important than people.

I the United Sates, corporations are people, humans just get in the way of profits

well duh (0)

Anonymous Coward | more than 4 years ago | (#31337318)

So, sue google, get a court order asking for just that.. force them to get the issue argued in court.

unless it's going to cost companies MORE to err on the side of caution than it's going to cost if they don't.. nothing will change.

Counternotice (2, Insightful)

Spazmania (174582) | more than 4 years ago | (#31337362)

Lessig is now required to fill out a counternotice challenging the takedown [...] The system is broken.

Seems to me the system is broken *IF* the video isn't restored and doesn't remain that way following the counternotice.

Seems to me the system is also broken if there actually was a DMCA notice from Warner and they fail to pay Lessig damages too.

Re:Counternotice (1)

mariushm (1022195) | more than 4 years ago | (#31338576)

As far as I know, DMCA requires Google to keep the video down for a "cool out period" of 10-14 days. So even if you're right and the video was legitimate, the video has to stay down for at least 10 days, and then it's restored.

That's Ok for a regular person, but if someone actually makes a living out of videos and its competitor simply sends a DMCA complaint to Youtube (or your hosting company if you host the videos yourself on a rented dedicated server) claiming copyright over it, he's able to disrupt your business easily. The (ridiculous and almost never applied) penalties for lying are often worth doing this.

In the case of this video, I don't think Google has received a complaint... I think their automated software simply detected the signature of a Warner song and followed the default rule of handling audio tracks for this publisher : block it (mute the video in plain language).

Re:Counternotice (1)

DinkyDogg (923424) | more than 4 years ago | (#31338756)

The problem with the counternotice is that it requires the uploader to identify himself to his accusers. If you were accused by a mutli-national corporation of infringing their copyrights, how eager would you be to identify yourself to them?

bahh, Lessig's a ****-disturber. (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31337364)

It's like when the police question you while you're walking around taking pictures. Sure, you may be within your rights, and there may be no laws saying you can't walk around with a camera, but you know what? You're just trying to be difficult. And Lessig's just trying to be difficult. All that the police want is to sniff out the terrorists, and the terrorists are bad, right!? And so are music pirates. And you can't fault Warner for just wanting to protect their few dollars. Just remember, those who make waves are always up to no good.

*cough*

Re:bahh, Lessig's a ****-disturber. (0)

Anonymous Coward | more than 4 years ago | (#31338688)

i can't figure out if this is sarcasm or you are just retarded.

Any alternatives that stick to their guns? (4, Insightful)

selven (1556643) | more than 4 years ago | (#31337376)

Are there any Youtube alternatives that don't take content down so easily? With HTML5 and the video tag I imagine it would be a lot easier now to create something like that.

Internet decentralization is good, and we need to take advantage of it and not put everything on Google's servers (and not put everything on Microsoft's servers, and not put everything on (insert freedom-loving startup based in Sealand here)'s servers) so that internet freedom doesn't rest on a single pedestal. Single pedestals can be brought down, but a million can't.

Re:Any alternatives that stick to their guns? (2, Insightful)

twidarkling (1537077) | more than 4 years ago | (#31337498)

Single pedestals can be brought down, but a million can't.

Well, that's a good sentiment, but unfortunately, that's incorrect. Especially as goes with the Internet. Here's your easy two-step guide to shutting down unapproved videos from being streamed over the Internet:

1. Mandate deep packet inspection, block all video not coming from approved servers.
2. Any data that's encrypted is automatically dropped by ISP routers.

Congratulations, you've now effectively shut down unauthorized video sharing on the Internet. Sure, you can get around it by directly connecting to computers via phone lines, or some such, or convert the file to non-video, and then send it, and have the recipient convert it back to video, but you're going to have a bitch of a time with any kind of meaningful distribution.

The Internet is a tool, can be used for good or ill, like any other, but it's much easier to censor and control than most if there's co-operation at the correct levels.

Re:Any alternatives that stick to their guns? (1)

selven (1556643) | more than 4 years ago | (#31337864)

ISP servers, there's your single pedestal. Thank you, you've made my point even stronger than before.

Re:Any alternatives that stick to their guns? (4, Interesting)

EdIII (1114411) | more than 4 years ago | (#31338496)

1. Mandate deep packet inspection, block all video not coming from approved servers.
2. Any data that's encrypted is automatically dropped by ISP routers.

1. - Most of the time that stuff is prohibitively expensive at a large scale, not all that effective, and easily bypassed with TOR, FreeNet, Darknet, and just plain regular encryption and password protected compressed files.

2. - I think you meant any data that's encrypted *without* the appropriate key escrow IDs that allow the encryption to be verified as authorized. Commerce would disappear overnight if you truly eliminated encryption and I doubt that is what you meant.

The day encryption is outlawed, is the day that the Revolution will begin. It's the canary in the coal mine for me and at that point I will diligently attempt to start the Revolution myself involving whatever means may be necessary to bring down the current government and restore the ideals and principles that used to be the foundation of this country.

On this point, I do not jest in any way, shape, or form. On that day, the Revolution will begin and the blood will flow... and it must do so. Otherwise, we all sat by while the People lost their country which used to stand for Freedom.

Of course we are not there yet are we????? No, I sincerely doubt the U.S government will ever outlaw encryption or enact a key escrow system in my lifetime. Way, way, WAY too many people like me with guns out there and they know it.

First Amendment (2, Interesting)

tepples (727027) | more than 4 years ago | (#31338820)

Mandate deep packet inspection, block all video not coming from approved servers.

Then only the operators of "approved servers" have the privilege to speak. I don't know about Canada, but here in the United States, I don't see the federal government getting away with abridging freedom of speech or of the press in this way.

Re:First Amendment (0)

Anonymous Coward | more than 4 years ago | (#31339004)

... here in the United States, I don't see the federal government getting away with abridging freedom of speech or of the press in this way.

You must be new here. Welcome to America!

What case law? (1)

tepples (727027) | more than 4 years ago | (#31339100)

Anonymous Coward, you appear to claim that a federal mandate for deep packet inspection and blocking of all encrypted packets would be lawful under the First and Fourth Amendments, and that anyone who disagrees must be unfamiliar with case law. What comparable case law are you thinking of?

you mean this one? (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31337396)

http://www.youtube.com/watch?v=9JIp3yStpmg [youtube.com] "webside chat"?

works with sound here (germany).... dunno what you mean, though its possible that the dmca counternotice was already done and accepted?

Re:you mean this one? (1)

tobiah (308208) | more than 4 years ago | (#31337886)

Ya, it's working in California too. I can't speak for the lesser states though ;-)

The hint is in the summary. (4, Insightful)

NeutronCowboy (896098) | more than 4 years ago | (#31337442)

We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a company. We live in a country that is supposed to encourage the free expression of ideas — not lock it up and take it down because one company doesn't know how to adapt its business model. We should never be silencing videos because they might infringe on copyright."

I think it's quite obvious what's going on. The new sacred cows of America are not free speech, individual pursuit of happiness and safety from tyranny, but corporate profits and dictating morals to others.

Sad, really. Well, there's still hope that maybe the US won't make Churchill into a liar when he said that America always does the right thing - after it tried everything else. But it's not looking good.

Re:The hint is in the summary. (2, Insightful)

siloko (1133863) | more than 4 years ago | (#31337756)

I think it's quite obvious what's going on. The new sacred cows of America are not free speech, individual pursuit of happiness and safety from tyranny, but corporate profits and dictating morals to others.

well you'd be right if you omitted the 'new'. The free speech hyperbole was just there to fool the masses, seems to me it worked a bit too well because we all think we used to have it . . .

Re:The hint is in the summary. (3, Insightful)

TubeSteak (669689) | more than 4 years ago | (#31337848)

I think it's quite obvious what's going on. The new sacred cows of America are not free speech, individual pursuit of happiness and safety from tyranny, but corporate profits and dictating morals to others.

New sacred cows?

Where were you 100 years ago (+/- 30 years) when monopolies were running rampant, the prohibitionists were girding themselves for a Constitutional Amendment, and saying "God Damn" in public was considered a jailable offense under indecency/obscenity/profanity laws?

I'm not necessarily arguing for or against your point, just showing how amazingly without context it is.

Re:The hint is in the summary. (2, Informative)

nsayer (86181) | more than 4 years ago | (#31338616)

Additionally, 100 years ago, the exact same situation we have today was being played out vis-a-vis recorded music. Only back then, it was piano rolls instead of MP3 files. Playing the part of the big music companies today, were the big sheet music publisher of years ago.

Same arguments, almost word for word.

Free Speech != Right of ... (2, Insightful)

Korbeau (913903) | more than 4 years ago | (#31337450)

... free broadcast (hosting, distribution)

... having people being forced to listen to your rant

... having people not disagreeing with you, or actively trying to mute you

Don't say that Google supressing videos like they want is a matter of free speech.

Re:Free Speech != Right of ... (4, Insightful)

retchdog (1319261) | more than 4 years ago | (#31337524)

It is when the reason for the suppression is a law. That is, they (ostensibly) don't really "want" to do it otherwise. If you can't grok that even a little bit, then shut up and let the citizens talk.

Re:Free Speech != Right of ... (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31338656)

Google suppresses videos that involve pornography. I can argue that they "don't really want to" but they do so because of laws against showing porn to minors. So they are suppressing my right to distribute porn on their servers because of a law, and would you really say this is a "free speech" issue?

So? (0)

Anonymous Coward | more than 4 years ago | (#31337490)

Mr. Lessig himself uses the full power of copyright law to protect his most current works despite preaching about how free is better. Perhaps if he actually practiced what he preached it would be different - but he doesn't.

Guess when his actions would cost him money it is OK to use the most restrictive copyright possible.

Re:So? (1)

tobiah (308208) | more than 4 years ago | (#31337910)

citation needed

The future is here (1)

Superdarion (1286310) | more than 4 years ago | (#31337594)

When they go to your OWN website and take down your own copyright material because it might infringe some non-specified third party's intellectual property, then you can complain about free speech and whatever.

No wait... that is already happening. Moving on.

You can have your country, (0)

Anonymous Coward | more than 4 years ago | (#31337702)

I prefer living in a world.

The problem with fair use (3, Insightful)

howlatthemoon (718490) | more than 4 years ago | (#31337764)

The summary says, "...used in an unarguably fair-use manner," but the problem is that there are no definitions of fair use that can't be argued. There are guidelines, but the only way to determine that a use is fair is to argue it in a court and prevail. Sure there may be uses that are so clear cut that a reasonable person would agree that the use is fair, and prior case law helps guide decisions, but try asking a lawyer to confirm your use to be fair use, and you'll rarely get a clear answer.

I'm not saying this is not a case of fair use, but in having a system where the one way to be certain is to go to trial is going to lead to conservative behavior in users of content.

Muzzled? (0, Flamebait)

Trogre (513942) | more than 4 years ago | (#31337878)

The presentation was not muzzled. YouTube merely stopped hosting it. He's welcome to distribute it himself in any way he sees fit.

Can we say.... (2, Insightful)

Erinnys Tisiphone (1627695) | more than 4 years ago | (#31337898)

Streisand Effect? Now, off to find a copy of that video...

Subcontracting enforcement (3, Insightful)

gurps_npc (621217) | more than 4 years ago | (#31338016)

Many of you are talking about free speech having to do with the government, not the corporations. This is completely correct, if you are naive.

It's called subcontracting. Let's assume that the government does not want people to do X. But it knows it can't legally outlaw it. For example, to listen to a political commenter they dislike (say Glenn Beck or John Stewart, depending on who's president.)

So instead they subcontract out the work to corporations. So they give people the right to sue a corporation for huge amounts of money if they insult gays, liberals, etc. / conservatives, religions, etc. (depending on Beck or Stewart)

Indirect enforcement is still enforcement. And that is what this is. This is a corporation doing some that the government wants, in order to avoid fines for failing to do it.

It doesn't matter that government is doing this indirectly. The corporation are removing content out of fear of lawsuits. They are NOT doing it for their personal profit/political views/etc. etc. This makes their actions proxy for the government. Free Speech rules apply.

Re:Subcontracting enforcement (1)

Pirate_Pettit (1531797) | more than 4 years ago | (#31338264)

"Indirect enforcement is still enforcement...Free speech rules apply. " Not legally, or legislatively. It's true that there is a certain gap in personal rights when it comes to corporate motivation, actions of self interest, or even strong-arm tactics, but it doesn't extend to the level of collusion, in my opinion. Where people get particularly offended and start ruffling about free speech is when the DMCA is used as a shorthand for 'we don't like this'. It moves the discussion from corporate prerogative to legal certainty, and that's not O.K. If googletube wants it down, they should just take it down, perhaps with a 'your video has been flagged as inappropriate' and not stoop to using the DMCA as a hammer. Having said that, it has not been confirmed that the takedown was even related to DMCA; there could be any number of reasons, from playing-it-safe to legal grey areas unrelated to the subject matter, such as the broadcasting of those who do not wish their likeness used, none of which impede free speech. Time will tell, but by then we'll have forgotten about it, and the internet will route around this supposed suppression in either case. This does have a certain stink to it, though. They have to know this is a hot button issue. Why risk offending people about it? Lord knows we can't risk offending anyone else in this country.

Re:Subcontracting enforcement (1)

selven (1556643) | more than 4 years ago | (#31338914)

The corporation are removing content out of fear of lawsuits. They are NOT doing it for their personal profit

Agree with the first part, but they're still afraid of lawsuits because they reduce their personal profit.

I think Lessig should decide (1)

ClosedSource (238333) | more than 4 years ago | (#31338170)

if he's trying to communicate or just challenge the system. If it's the former, he should upload a video that can't be removed on the basis of copyright fair use or not. If it's the latter, well, he's made his point by being censored.

Re:I think Lessig should decide (1)

Arker (91948) | more than 4 years ago | (#31339020)

if he's trying to communicate or just challenge the system. If it's the former, he should upload a video that can't be removed on the basis of copyright fair use or not. If it's the latter, well, he's made his point by being censored.

The two goals are not mutually exclusive, it is quite possible he is trying to do both.

1st Amndmnt is law, freedom of speech is principle (1)

lawnsprinkler (1012271) | more than 4 years ago | (#31338650)

I've noticed that anytime there's a complaint about censorship, there's a number of "insightful" comments repeating that the hosting service has the legal right to do so, even though there was no case being made that the service (Youtube in this case) acted illegally or had no legal right to do so. How has it become so fashionable that whenever someone objects to censorship, so many people's knee jerk reaction is to defend that censorship based on legal grounds rather than take a stand to promote a free and open society?

The First Amendment of the U.S. Constitution is a law that governs the relationship between the government and citizens. Freedom of speech is the principle that this law was designed to protect. If your support for freedom of speech goes only as far as the legal rights granted you, that's fine, but you don't need to reduce it to a legal argument, because it is not. Don't worry, we understand exactly what the First Amendment does and does not protect, but we also believe in the broader principle of free speech that is at the core of a free, open, and enlightened society.

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