Beta

Slashdot: News for Nerds

×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

EFF To Ask Judge To Rule That Universal Abused the DMCA

Soulskill posted about 2 years ago | from the lesson-in-responsibility dept.

The Courts 139

xSander writes "The Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose, CA to rule that Universal abused the DMCA to take down a video of a toddler dancing to a Prince song. The case in question, whose oral argument will be Tuesday, October 16, is Stephanie Lenz vs. Universal, a case that began back in 2007. Lenz shared a video on YouTube of her son dancing to 'Let's Go Crazy' on a stereo in the background. After Universal took the video down, Lenz filed a suit with help of the EFF to hold Universal accountable for taking down her fair use. The court had already decided that content owners must consider fair use before sending copyright takedown notices."

cancel ×

139 comments

Good (3, Insightful)

PieMasters (2751119) | about 2 years ago | (#41631345)

Music industry is dinosaur who doesn't want to go forward with new models and the way people use the internet.

Re:Good (-1)

Anonymous Coward | about 2 years ago | (#41631421)

I sense another shill trying to build a posting history.

Re:Good (-1)

Anonymous Coward | about 2 years ago | (#41631653)

FUUUCK YOU

Re:Good (2)

Impy the Impiuos Imp (442658) | about 2 years ago | (#41631823)

Don't forget to pay Cee Lo.

Re:Good (0)

Anonymous Coward | about 2 years ago | (#41632045)

Don't forget to pay Cee Lo.

Don't mind if I do [youtube.com] .

(Not the original AC, but I, too, am tired of the obvious shills. The worst ones are the ones who pretend /. is dying.)

Re:Good (1)

Anonymous Coward | about 2 years ago | (#41631435)

I think you mean the "traditional media cartel" as opposed to the "music industry". Some parts of the music industry are doing quite well and have no ties to any old crufty corporations with obsolete business models. .. Beatport and artists on Beatport, for instance.

Re:Good (0)

Anonymous Coward | about 2 years ago | (#41631983)

I think you mean the "traditional media cartel" as opposed to the "music industry". Some parts of the music industry are doing quite well and have no ties to any old crufty corporations with obsolete business models. .. Beatport and artists on Beatport, for instance.

And the staff of Beatport, too! And the... um... caterers? Of Beatport? And the janitors... of Beatport. And... the guy who digs in the dumpsters behind Beatport? That's a total of a whole six groups right there! Man, you'd think you could come up with any other thing than Beatport to back your claim...

Re:Good (1)

newcastlejon (1483695) | about 2 years ago | (#41633397)

Posting to undo incorrect mod.

Meh (4, Interesting)

Anonymous Coward | about 2 years ago | (#41631415)

Where is the line between this "fair use" and using the song to promote your personal brand? I think this particular case is better dealt with socially by embarassing the shit out of universal for being such tools.

I'd rather see them go after the automated systems that are sending DMCA notices for things that are clearly NOT their IP in any way shape or form.

Re:Meh (5, Insightful)

fuzzyfuzzyfungus (1223518) | about 2 years ago | (#41631459)

If you actually think of yourself as having a 'personal brand', I'd say that existing is all the punishment you could ever require...

Re:Meh (1)

RabidReindeer (2625839) | about 2 years ago | (#41631613)

If you actually think of yourself as having a 'personal brand', I'd say that existing is all the punishment you could ever require...

Oh, everyone has a "personal brand". Just in a lot of cases, it's Brand X.

Re:Meh (1)

Anonymous Coward | about 2 years ago | (#41632521)

Mine's XY

Re:Meh (1)

davester666 (731373) | about 2 years ago | (#41633391)

Unfortunately, mine is usually XYZ...

Re:Meh (0)

Anonymous Coward | about 2 years ago | (#41633419)

You must be some weird mutant :)

Re:Meh (0)

Anonymous Coward | about 2 years ago | (#41633815)

Mine is YYZ *drum solo*

CAPTCHA: decibel

Re:Meh (4, Insightful)

drinkypoo (153816) | about 2 years ago | (#41631521)

Where is the line between this "fair use" and using the song to promote your personal brand?

That's what I want to know.

Capturing incidental background music should be always or never illegal. I vote for never but whatever. These arbitrary standards only postpone a meaningful reckoning. Reckon that's the point...

Re:Meh (1)

MickyTheIdiot (1032226) | about 2 years ago | (#41631731)

Some opinions on copyright say that all non-commercial use ought to be legal. I am pretty close to this belief, but I think if I thought for a long time I could come up with a counterexample. It's a hard line to draw... like does self promotion = making money? Hard to say.

Re:Meh (1)

rjstanford (69735) | about 2 years ago | (#41631895)

Defining "commercial use" gets to be tricky indeed. For example, most movie theaters make no money selling tickets (all of that goes back to the studios), they make their money on concessions. If they could "get ahold" of a digital copy (which most won't do because showing it would be illegal and easily punished) and then show it legally, for free, open to the general public (ie: non-commercial use) but then have unaffiliated food and beverage sales, they would. And there goes most of the studio's revenue stream.

Re:Meh (2, Interesting)

Atzanteol (99067) | about 2 years ago | (#41632433)

I think most reasonable people would see that using a product to get people in the door to make money from something else is "commercial use."

Re:Meh (0)

Anonymous Coward | about 2 years ago | (#41632851)

If you're advertising for a pirated movie and showing it to the general public(not family/friends/etc), it is already considered a public performance and no longer falls under "personal use".

It's a civil issue anyway, nothing a jury couldn't figure out on their own. Don't need laws when you have a jury.

Re:Meh (4, Insightful)

Defenestrar (1773808) | about 2 years ago | (#41632423)

I'd suggest a counter example to be duplicating a piece of art to hang on your own wall instead of buying one of the artist's prints. I'd personally view that as a non-commercial infringement which substantially violates a creator's right to pick their own business model.

Re:Meh (4, Insightful)

hazah (807503) | about 2 years ago | (#41632703)

That business model relies on law, not supply and demand, as such is broken to begin with. The violation is merely perceived, and is non-factual. But hey, why not have an inflated sense of entitlement. It's obviously serving humanity so well...

Re:Meh (1)

Anonymous Coward | about 2 years ago | (#41633053)

I just printed off your comment and put it on my wall. Sue me!

Re:Meh (3, Insightful)

JesseMcDonald (536341) | about 2 years ago | (#41633309)

which substantially violates a creator's right to pick their own business model

There may be a right to pick your own business model, but there is no right which obligates anyone to make sure that business model succeeds. For example, my business model might be that I expect everyone else to pay me for the privilege of breathing. If so, I should expect that business model to fail. Other people breathing without my permission does not cause me any harm, so there is no legitimate basis for preventing it by force, and no one is going to voluntarily pay me for something they can do on their own for free.

Like breathing, copyright infringement is an action which harms no one, and a business model predicated on expecting others to voluntarily pay you to make or share copies is just as obviously doomed to failure.

Re:Meh (5, Insightful)

Elbereth (58257) | about 2 years ago | (#41632057)

This whole problem could be resolved easily if the corporations had an automated system wherein people could license copyrighted works for use in personal, noncommercial videos (like YouTube). It wouldn't necessarily have to even cost any money, either. Simply collecting demographics would, I imagine, be valuable to the suits. If they wanted to be complete and utter assholes about it, they could charge 10 cents per license (or maybe have an unlimited subscription service for $5/month, so that you could use any of their hottest singles).

As it stands, people have no way to ask for permission and thus resort to simply violating copyright. If they at least had the opportunity to follow the law, maybe there wouldn't be so much ill will toward the suits.

This seems like quite a reasonable compromise to me.

Re:Meh (4, Insightful)

Tanman (90298) | about 2 years ago | (#41632481)

It sounds to me like you are describing extortion since these cases are already legal and not in violation of copyright law.

Re:Meh (2)

lordofthechia (598872) | about 2 years ago | (#41633103)

Magnatune does this [magnatune.com] . So if you're a member, you are free to use their music in your non-commercial projects.

This was the reason I took all the money from CDs I had abstained from buying from RIAA Members and instead got a lifetime subscription from Magnatune.

Re:Meh (-1)

Anonymous Coward | about 2 years ago | (#41633385)

If they at least had the opportunity to follow the law, maybe there wouldn't be so much ill will toward the suits.

They have every opportunity to follow the law: If they can't license it legally, then don't use it, except for fair use. How difficult is that to understand?

This seems like quite a reasonable compromise to me.

That being the case, you should do it with all of your copyrighted material - I'm sure the world will benefit immensely. Of course, others needn't join you.

Re:Meh (3, Interesting)

Technician (215283) | about 2 years ago | (#41633631)

Would playing a stereo too loud in a public place be a copyright violation for making available? Maybe they can use this to outlaw loud car stereos and mandate the use of headphones in cars.

Re:Meh (4, Insightful)

Anonymous Coward | about 2 years ago | (#41631759)

Where is the line between this "fair use" and using the song to promote your personal brand? I think this particular case is better dealt with socially by embarassing the shit out of universal for being such tools.

I'd rather see them go after the automated systems that are sending DMCA notices for things that are clearly NOT their IP in any way shape or form.

Embarrassment only works when the subject has a sense of shame.

Re:Meh (-1, Offtopic)

Rod Beauvex (832040) | about 2 years ago | (#41632291)

Explains alot about Republicans, actually.

Re:Meh (1)

sumdumass (711423) | about 2 years ago | (#41631817)

This lawsuit stems from before there was ever automated systems in wide spread use. If they prevail on any part of it, it should have clear implications for the automated systems. If for instance, they uphold the consideration of fair use, the automated systems will have to forward the complaint to an actual person who makes that determination before any DMCA take down notice is issued.

On the other hand, it might not have any effect on services like YouTube who employ their own automated systems. But then again, YouTube wouldn't be covered under the DMCA's exception from liability either when they do it themselves. They would be stuck with the wording of their terms of service which may or may not stand on it's own in court.

Re:Meh (1)

kelemvor4 (1980226) | about 2 years ago | (#41632285)

Where is the line between this "fair use" and using the song to promote your personal brand? I think this particular case is better dealt with socially by embarassing the shit out of universal for being such tools.

I'd rather see them go after the automated systems that are sending DMCA notices for things that are clearly NOT their IP in any way shape or form.

Interesting theory, except that universal most likely does not give a shit. The majority of the world already holds record and movie companies in very low regard.

Re:Meh (0)

Anonymous Coward | about 2 years ago | (#41632357)

Where is the line between this "fair use" and using the song to promote your personal brand? I think this particular case is better dealt with socially by embarassing the shit out of universal for being such tools.

You cannot embarrass a corporation. Despite legal attempts to define them as such, they are not people and do not have emotions.

Re:Meh (0)

Anonymous Coward | about 2 years ago | (#41633023)

But if we didn't have a legal system to prop up said corps, then the "embarrassment" would cost them customers. With our currently monopoly friendly IP laws, customers have no where to do even if they don't like said corps.

Re:Meh (0)

Anonymous Coward | about 2 years ago | (#41632687)

Depends on if the video is commercial in nature.

Re:Meh (2, Insightful)

Charliemopps (1157495) | about 2 years ago | (#41633007)

Fair use should be "I bought it, now I get to use it in any manner I damned well please"

If I made a full blown music video using the song, according to the DMCA they'd have a right to take it down. If were waring Levi Jeans in that video, Levi wouldn't have any right to take it down. What the hell is the difference?

Re:Meh (2)

Shagg (99693) | about 2 years ago | (#41633551)

The difference is that the RIAA has spent a lot more money bribing politicians than Levi has.

Re:Meh (0)

Anonymous Coward | about 2 years ago | (#41633587)

any manner you damn well please include reselling? Do you truly believe that only the patronage model of the 1500's is appropriate for art? That's the only one that's sustainable in your worldview.

Abuse of power (0, Interesting)

Anonymous Coward | about 2 years ago | (#41631429)

Yet another example of why a private company should not have the power of a government and force people to take down material or sue them without the agreement of a court.

Re:Abuse of power (0)

Anonymous Coward | about 2 years ago | (#41631695)

But, it is in their best interest, and what is in there best interest is in everyone's best interest... because they need to make a profit, and if they don't do what is in the general best interest, they won't make a profit...

Re:Abuse of power (1)

Anonymous Coward | about 2 years ago | (#41631859)

The apropriate method to prevent abuse of this power would be a three strikes approach, i'm sure the music cartels would love the concept since they're so fondly trying to push it on us. Three undue dmca's and you lose the power to send any. That'll teach them to be carefull and have their dmca reviewed by someone instead of sending it by bot without any care for the consequences of a false positve.

Must (0, Interesting)

Anonymous Coward | about 2 years ago | (#41631439)

The must consider fair use or... what? What are the consequences of misusing the DMCA?

Re:Must (2)

tnk1 (899206) | about 2 years ago | (#41632015)

The law reads this way:

http://www.gpo.gov/fdsys/pkg/PLAW-105publ304/pdf/PLAW-105publ304.pdf [gpo.gov]

PUBLIC LAW 105–304—OCT. 28, 1998
DIGITAL MILLENNIUM COPYRIGHT ACT

[cut]

‘‘(f ) MISREPRESENTATIONS.—Any person who knowingly materially misrepresents under this section—

‘‘(1) that material or activity is infringing, or
‘‘(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

TL;DR what are the consequences? Civil damages. And probably not much of them.

Not being a lawyer, I am not sure if the language allows for punitive damages, as opposed to simple recovery of lost fees and expected income lost by removing the item due to a misrepresented takedown notice. Either way, it's not a criminal offense.

So, my reading is that you can sue for damages and fees if someone misrepresents the material as infringing, although it does have to be "knowingly" and "materially". That still shouldn't excuse robo-notices, but determination of fair use is something a court would do, so the copyright owner could probably argue that since they do not determine what fair use is, they didn't knowingly misrepresent that it wasn't. All they did was call the allegedly infringing material to the attention of the provider and subscriber, who then has the right under the law for a counter notification which would include addressing fair use considerations.

Once the notifications clash, they can work it out or go to court to determine fair use. Even if the fair use is upheld, the copyright holder might have been held to be legitimately mistaken and not "knowingly" misrepresenting it's position, which means no damages would be assessed for misrepresentation under that heading.

Re : knowingly materially misrepresents (0)

Anonymous Coward | about 2 years ago | (#41632465)

biggest well-crafted loophole.

Almost impossible to prove unless the actor actually admits to that fact.

Re:Must (0)

Anonymous Coward | about 2 years ago | (#41632073)

They get shot with a squirt bottle and are sternly told "Bad boy!"?

I'm still not clear on how such takedowns... (2)

BMOC (2478408) | about 2 years ago | (#41631445)

do not constitute prior-restraint when it comes to free speech. Is it because the government isn't doing the takedown?

Re:I'm still not clear on how such takedowns... (1)

Anonymous Coward | about 2 years ago | (#41631575)

First of all, take down notices come after "publication," so even if the government was doing it, it wouldn't be prior-restraint. Second, it's handled entirely through private groups, generally on both ends.

Re:I'm still not clear on how such takedowns... (1)

BMOC (2478408) | about 2 years ago | (#41631863)

You have to demonstrate that something being expressed can legally be censured before you can squelch it, as far as I understand the definition of prior restraint. BIANAL. Takedowns of videos are done BEFORE a judge is even involved, meaning no one has proven anything to anyone.

If the law did not work this way, I would imagine a sufficiently skilled/powerful/connected staff of lawyers could simply stop negative news reports before they happened.

Re:I'm still not clear on how such takedowns... (0)

Anonymous Coward | about 2 years ago | (#41632023)

I agree that it wouldn't be prior restraint, but the 1st amendment reads "Congress shall make no law".

In this case Congress has made a law that provides a framework for stifling free speech. That it happens to be private entities who make use of it, rather than government controlled ones, affects the outcome in no way at all. I'm happy to allow Google to choose or not choose the content they carry on their own service, but the DMCA forces them into a situation where their only legal move is to take down something.

Re:I'm still not clear on how such takedowns... (1)

truesaer (135079) | about 2 years ago | (#41633289)

The constitution also specifically authorizes copyrights in Article I Section 8.

Re:I'm still not clear on how such takedowns... (5, Insightful)

Nidi62 (1525137) | about 2 years ago | (#41631637)

I think the idea is that the DMCA is supposedly only invoked in good faith, and that it would only be used in cases where their is a clear copyright violation. If this were the case, then I think most people would consider the DMCA a relatively fair and benign method of copyright protection. The problem is that it is not being used in good faith. Rather, it is being thrown at virtually everything to see what it sticks on, and it's so sticky it sticks to everything. So, to answer your question, I don't think it was intended (except, of course, by it's industry backers) to be used this way.

Re:I'm still not clear on how such takedowns... (4, Interesting)

MickyTheIdiot (1032226) | about 2 years ago | (#41631773)

As it is often pointed out here, by clear case law corporations are supposed to get the most for their stockholders. They're basically mandated by caselaw to push the envelope. Therefore you can't trust corporations to do the right thing... ever. Any law that expects a corporation to work in good faith is flawed. The only way you can call them on it is to take them to court, then it turns out to be the usual "my lawyer is bigger than your lawyer" crap.

They shouldn't have the power to take something down on their own say so. It's a violation of both due process and free speech. But, heh, they can afford a better lawyer than I can. That's america.

Re:I'm still not clear on how such takedowns... (3, Insightful)

Anonymous Coward | about 2 years ago | (#41631889)

Always blaming shareholders is silly, and they are not "mandated by caselaw to push the envelope," any more than a dictator is mandated by natural law to kill any and all resistance. Why don't we just say that those particular people are dirtbags, and not diffuse the blame because "they are forced to do so."

Re:I'm still not clear on how such takedowns... (4, Informative)

Artifakt (700173) | about 2 years ago | (#41632469)

Glad to see somebody trying to set the record straight. Corporations are not required to take any steps that, in their management's judgement, might be contrary to law. There are several areas of law where the exact opposite is the case. (Just try to claim in a U.S. court, that your corporation was compelled to bribe local officials in a non U.S. locale because "it's the way that culture works" and you would have been remiss to not use bribery to maximise shareholder value. You'll find out that there are international treaties supporting the U.S. penalizing your corp for something it did off of US soil.). In addition, it's usually possible for a board to 'beat the rap' by simply claiming they were avoiding negative publicity for such actions, i..e. by claiming they feared triggering a boycott movement.

The problem starts when somebody finds out that shareholders have sued because a board of directors 'failed to maximise value'. The correct way to look at that is that somebody has sued NASA because a kid on a playground broke their window with a baseball. Just because somebody files a lawsuit doesn't mean it is at all reasonable nor that they have any chance of winning. Somebody might sue you for breathing their air, now do you go through life using that to justify your every action? There have been a few reasonable claims that a board was failing in its duties, but many more unreasonable ones, and the chance anyone will win a suit against a board of directors over shareholder value is pretty slim overall.

Here's the sort of situation where a shareholder value claim can win: The board appears to be taking steps that are generally devaluing the company, or at least making it perform at far under anticipated projections. Judicial review shows these steps may have helped another company profit, and part of the board consists of members who have some sort of 'less than arms length' relation with that company.

Re:I'm still not clear on how such takedowns... (4, Informative)

MozeeToby (1163751) | about 2 years ago | (#41632779)

No, they are bound by case law to work towards fulfilling the goals that were laid out to their shareholders. Those goals are very, very rarely "make as much money as possible". They range from "maximize shareholder value" (which isn't the same thing as maximizing short term profit) to "uphold traditional christian values". No one ever said that selling stock of your company meant you had to run said company like a sociopath.

Re:I'm still not clear on how such takedowns... (1)

Lonewolf666 (259450) | about 2 years ago | (#41631891)

In theory, a DMCA takedown is supposed to be "under penalty of perjury". The penalty rarely happens, but it is possible. This lawyer website has some examples:
http://www.aaronkellylaw.com/internet-law/consequences-of-filing-a-false-dmca-takedown-request/ [aaronkellylaw.com] .

Lenz vs. Universal may become another such example.

Re:I'm still not clear on how such takedowns... (1)

shentino (1139071) | about 2 years ago | (#41632177)

Unfortunately, it's not perjury to send a fake dmca notice, only perjury to misrepresent the copyright holder.

It is, however, perjury to falsely challenge a dmca notice.

Very one sided, and I think it such an obvious mismatch that whoever wrote the law designed it that way on purpose.

And I said wrote, not passed.

Re:I'm still not clear on how such takedowns... (2)

sumdumass (711423) | about 2 years ago | (#41632039)

The DMCA is not intended as a method of copyright protection, it is intended as a tool to facilitate the right holder's claims against something copyrighted while offering protections for the service provider or network carrier from becoming liable in the process.

The DMCA has been widely abused in this regard and it is on the surface or in appearance, a method of enforcing a copyright. However, it was supposed to only be a shelter for innocent third parties from liability while a copyright owner and accused infringing party hammered and battled it out. The fact that it is being thrown at virtually everything to see what it sticks on, and it's so sticky it sticks to everything- sort of shows the abuse that has been taken with it.

Re:I'm still not clear on how such takedowns... (4, Informative)

tnk1 (899206) | about 2 years ago | (#41632115)

In short, yes:

From the abstract of "Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment" by Wendy Seltzer
http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech171.pdf [harvard.edu]

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error.

The actual article argues that although the takedown notices are carried out by private entities, they are being done "in the shadow of the law". However, until a court accepts this, prior restraint does not apply.

Who Owns Your Memories? (4, Funny)

srobert (4099) | about 2 years ago | (#41631533)

Universal?. Hmm. Most all of my childhood memories are owned by Disney and Time-Warner.

Re:Who Owns Your Memories? (0)

Anonymous Coward | about 2 years ago | (#41633757)

Guess you were not into knight rider, a-team, ET, back to the future, buck rodgers, battlestar galatica...

They make/made a huge number of TV shows and movies...

Heard my dad (WIL) talking to my sis (WIL) (1)

Deliveranc3 (629997) | about 2 years ago | (#41631561)

(WIL) = who is lawyer.

Remember to ask for the judge's dismissal! Based on age, stupidity, wreckless endangerment of humanity.

Only way the legal system will learn.

EFF is stretching it (1, Interesting)

Dishwasha (125561) | about 2 years ago | (#41631605)

The toddler/family was conducting neither criticism, comment, news reporting, teaching, scholarship, or research with the Prince music. In addition, the woman published to a public forum where others besides her family could view the video. People really need to start taking responsibility for their own actions and stop using children and the "awww, cmon...." mentality as defense for their lack of judgement.

Re:EFF is stretching it (2)

aglider (2435074) | about 2 years ago | (#41631661)

People really need to start taking responsibility for their own actions and stop using children and the "awww, cmon...." mentality as defense for their lack of judgement

Awww ... Cmon!

Re:EFF is stretching it (2)

the eric conspiracy (20178) | about 2 years ago | (#41631681)

"de minimis non curat lex"

Re:EFF is stretching it (2)

erroneus (253617) | about 2 years ago | (#41632957)

Nice one. And well put. That's a really fancy way of saying "awww, cmon..."

Re:EFF is stretching it (0)

Anonymous Coward | about 2 years ago | (#41631685)

The toddler/family was conducting neither criticism, comment, news reporting, teaching, scholarship, or research with the Prince music. In addition, the woman published to a public forum where others besides her family could view the video. People really need to start taking responsibility for their own actions and stop using children and the "awww, cmon...." mentality as defense for their lack of judgement.

It was a satire of dance clubs.

Re:EFF is stretching it (1)

Impy the Impiuos Imp (442658) | about 2 years ago | (#41631879)

Wierd Al has to pay when satirizing songs. This does not override.

If it was 30s (and the song was signicantly longer than 30s) then they could probably get away with it like radio stations and some pathetic 100 greatest songs shows do.

Merely rerecording broadcast audio as part of a video, degraded audio, doesn't cut it.

Re:EFF is stretching it (1)

Anonymous Coward | about 2 years ago | (#41632375)

Wierd Al has to pay when satirizing songs.

No, he merely chooses to ask permission and pay a license fee in order to avoid litigation. He isn't legally bound to do this; it's a professional courtesy.

Re:EFF is stretching it (0)

Anonymous Coward | about 2 years ago | (#41631739)

So, dancing is not a comment on the music?

Also, sure, it's a public forum, but you have to have the link, or be looking specifically for that exact video to find it. Does your youtube stream just offer you random toddler dancing videos?

I guess the big question is whether the mom/family is making any money off the kid dancing to the music. Of course, if Universal had never sent a take down notice, then no one would even know that this video exist.

btw, I haven't watched it and don't plan on it.

Re:EFF is stretching it (0)

Anonymous Coward | about 2 years ago | (#41631765)

IA(definitely)NAL, but I believe that it's often been held that a portion of a work under 30 seconds can be used as it doesn't not constitute the work as a whole. The clip in question was 29 seconds long.

I.e. - It doesn't have to meet the criteria you've listed unless the portion of the work used is considered "significant". Had the clip had anywhere from 31 seconds to the length of the entire recording, it would have to had met one of those criteria to be considered "fair use".

Re:EFF is stretching it (1)

Anonymous Coward | about 2 years ago | (#41631815)

You are infringing a speech I made to myself on the can last night.
By the power of the DMCA, you are here by found guilty and sentenced (accused, found guilty and sentenced by myself and my lawyers) to a fine of $5 per every view of your post for spreading ideas that vaguely resemble my own.
You have no legal recourse for this, respond to devnull@localhost with appropriate forms.
If you believe this is unfair - send the forms (I won't tell you which ones and I'm sure you'll get the wrong ones) within 10 minutes of me thinking about posting this on /.
If I do not reply to you within 2 business days, consider your application rejected.
That last part isn't the law yet, but my lobbyists are working on it, and it should be passed in the senate comity for agriculture within the next 10 days - so you might as well consider it a law.

Re:EFF is stretching it (1)

Anonymous Coward | about 2 years ago | (#41631835)

It's incidental use. The video is of the toddler dance, the presence of a prince song is incidental to the toddler. If there were a coke can in the background, coke couldn't send a takedown even though their IP was included in the video.

Re:EFF is stretching it (4, Insightful)

MickyTheIdiot (1032226) | about 2 years ago | (#41631845)

But what harm came to the copyright holder? At worst it was $0. It might be negative harm since someone might have seen it and went and bought a prince album. Maybe it could of used the YouTube model and provide a link to buy the music.

Sorry... it's asinine. It's using the copyright law as a sword instead of a shield. If you care about a tight interpretation of the Constitution it's pretty obvious that copyright is well beyond its stated intent. It's funny how strict constitutionalists change their tune when their corporate buddies are involved.

Re:EFF is stretching it (1)

Anonymous Coward | about 2 years ago | (#41632077)

This is actually where I am all for Universal asserting copyright over the song -- but only for making money off the ads on that page. If the owner of the video wants to make money, let them check a box to split it with Universal, have the option to remove the video, or claim that this is fair use and not allow any monetization. (and allow it to go one more level too - allow universal to then check a box saying no, I won't split it it - remove video or no adds allowed).

If the person want's to share the video with family, repost it somewhere that limits where it can be seen just to video.

This way Universal makes money off of their IP and the poster of the video makes money off of their IP (obviously if the video itself is the issue then there would have to be a slightly different process). If the video goes Viral Universal stands to make money. If the video is in bad taste and it's monetized, universal has the right to say no.
(and I would argue "removing monetization" in this case that means no ads by youtube anywhere on the page, even for other youtube videos!)

Re:EFF is stretching it (1)

gstoddart (321705) | about 2 years ago | (#41632457)

But what harm came to the copyright holder? At worst it was $0.

Well, the way the IP folks have been arguing this is that since they didn't get paid at all, the damage is what they would have charged you if you had asked to license the track.

Since you didn't license it, then clearly the damage is the ridiculous statutory damages of eleventy-trillion dollars.

Remember, someone out there still bristles at the idea that someone could sing Happy Birthday in a restaurant and not getting paid.

And I'm sure studio execs have been trying to figure out a way to charge everybody in the room if I turn on my stereo when I have friends over.

Re:EFF is stretching it (1)

gizmonic (302697) | about 2 years ago | (#41633681)

If you care about a tight interpretation of the Constitution it's pretty obvious that copyright is well beyond its stated intent.

Exactly. Originally copyright was 7 years. Think about this for a minute. If you published a creative work, be it a book, painting, play, piece of music, in 1776, exactly how much distribution could you expect to get in a mere 7 years. It took 2 months just to cross the Atlantic. I mean, with today's global digital distribution, that equates to like 3 minutes. :P

Re:EFF is stretching it (1)

Hatta (162192) | about 2 years ago | (#41631897)

You're right, it fails many of the tests for fair use, and is yet still clearly fair use. What we should conclude for this is that rightfully fair use is broader than has been traditionally considered.

Re:EFF is stretching it (1)

djlemma (1053860) | about 2 years ago | (#41631987)

Did you see the video? It's only 29 seconds long, and the song is barely recognizable. If you didn't already know the song, it would be hard to identify even with tools like Shazam. The usage in the video would have no effect on the value [wikipedia.org] of the work. I cannot imagine why this video should be an example of a work to be taken down. If it is, then anybody with a radio or ipod speakers could walk into a public place and turn it into a 'no video' zone.

Re:EFF is stretching it (0)

Jessified (1150003) | about 2 years ago | (#41632007)

We need to send this "toddler" to jail. No more excuses!

Re:EFF is stretching it (1)

Bucc5062 (856482) | about 2 years ago | (#41632043)

Really, I see it fitting all categories listed.

criticism - A commentary on the complexity of Prince's music. It's so simple a child can dance to it.
comment - Similar to criticism so while Prince's music is so simple even a baby can dance to it, it is musical enough to be enjoyed.
News Reporting - OMG Mom, look at the baby dancing, this is the first time I've ever seen that before.
Teaching - Hey kids, look how easy it is to dance to a Prince tune. just stand and wiggle...you try it...very good!
Research - How long can a baby remain interested in dancing to a Prince song, is it continuous interest or short bursts, let's watch

Explain how there is a "lack of judgement" with a parent who sees their baby/child doing something cute while music is playing, records it, and posts it for friends/family to watch. Did they promote this as a music video? Did they attempt to sell the video for profit?

The "aw....come on" needs to be applied to Universal for a lack of common sense and judgement.

Re:EFF is stretching it (1)

Barefoot Monkey (1657313) | about 2 years ago | (#41632151)

Sufficiency is not necessity [wikipedia.org] , so listing a few examples of unrelated potential fair uses isn't much of an argument. And nobody here is using children as a defense - the EFF is suing Universal, not the other way around. Universal is being accused of abusing the DMCA takedown process, and the defense is that one of their songs happened to appear incidentally in the background to a 29-second video of a baby acting cute.

Re:EFF is stretching it (1)

suutar (1860506) | about 2 years ago | (#41632191)

as it happens the law does not restrict fair use to only those purposes, but uses them as examples. Given how common such things probably are on Youtube, getting a court ruling seems like a good idea. (Maybe if the automatic systems are required to get a human to agree, news stations will stop taking down NASA footage.)

Read the Law (3, Informative)

pavon (30274) | about 2 years ago | (#41632219)

None of the things you mentioned are criteria for determining whether something is fair use. They are examples given in the law, and were never intended to be an exhaustive enumeration of instances of fair use:

... 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.

The real criteria for fair use follows that introductory paragraph:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

This video easily passes those criteria.

Re:EFF is stretching it (1)

Agent0013 (828350) | about 2 years ago | (#41633399)

That music was broadcast over sound waves and is recorded without intention by anyone nearby with recording devices or even ears. Maybe Universal needs to take responsibility for their actions. Either stop broadcasting their music, or accept that it will end up being recorded.

Re:EFF is stretching it (3, Interesting)

war4peace (1628283) | about 2 years ago | (#41633417)

Here's an interesting counterexample very fresh in my memory.
Two days ago I watched the "Cat watches Slayer" video posted on wimp.com (http://www.wimp.com/watchingslayer/). I remembered how much I loved Slayer when I was 16-18 and all I could find was a couple of cassette tapes which I couldn't play anymore (yeah, I got rid of my cassette player) so I immediately went and bought their albums online. Yes, all of them, because I could afford this one purchase.
So, paradoxically, a video of a cat watching Slayer boosted some Slayer sales. Go figure.

I'd like to see more of this (5, Insightful)

v1 (525388) | about 2 years ago | (#41631645)

We need more of these trigger-happy infringement notice filers to be held accountable. I get the impression that at this point they feel they can do no wrong, and will just fire off a takedown notice with no thought to the consequences. They need to learn that we won't stand for their abuse of the system.

Applying some of the teeth in the anti-abuse clause in the DMCA is the only way to change their attitude. These groups won't stop abusing the system until it starts affecting their bottom line.

(of all the things I've seen the EFF do lately, this is the one that I appreciate the most)

Re:I'd like to see more of this (5, Funny)

ender8282 (1233032) | about 2 years ago | (#41631833)

Oooh, Oooh how about 3 strikes. The media companies love it so much; what if they got 3 strikes? If they issue 3 DMCA take down requests that get overturned as failing to consider fair use, they loose the right to issue take down requests.

I predict that a fraction of a second after such a law took affect most companies' bots would issue bad requests. A few months later the courts would rule that 3 of them were in valid, and all of big name rights owners would loose the right to issue take down notices. Then the word becomes a better place and I can watch the Curiosity landing!

Re:I'd like to see more of this (1)

Chowderbags (847952) | about 2 years ago | (#41632489)

And then immediately after, they set up hundreds to thousands of shell companies and transfer copyrights around and around whenever they hit that limit and you're back to square one. Oh, and for added fun, you'll get multiple DMCA notices from subsidiaries of the same company when they can't keep track of their own movement and which subsidiary owns what.

Re:I'd like to see more of this (1)

rhsanborn (773855) | about 2 years ago | (#41632999)

They wouldn't need to, immediately after they make campaign contributions and get the law overturned.

Unbelievable! (1)

aglider (2435074) | about 2 years ago | (#41631649)

Thanks the Almighty I live in Europe. So far.

Re:Unbelievable! (4, Informative)

cpghost (719344) | about 2 years ago | (#41631743)

You must not be living in Germany then, since you didn't experience GEMA's talibanesque crusade against "public performance of music." At least in the US, they have Fair Use provisions. Europe doesn't have them, AFAIK. In a sense, copyright-wise, European legislation is even worse than the dismal US copyright legislation.

Re:Unbelievable! (3, Insightful)

Eyeball97 (816684) | about 2 years ago | (#41632203)

You're forgetting the insanity in the UK, this stupidity has been going on for years, a lot longer than people realise. Take Kwik Fit (UK vehicle maintenance franchise) for example...

http://arstechnica.com/tech-policy/2007/10/the-next-copycrime-making-hearable-rings-up-200000-copyright-suit/ [arstechnica.com]

I was bemused as a kid, when they started all this shit. "Home taping is killing music". My arse. Yeah, I'm sure *I* killed the Bay City Rollers because I put them on a mixtape for my gf. Or mmmh, dontcha think maybe they just went out of fashion?

Now, decades later the whine is louder than ever. Sad.

wont change a thing (0)

Anonymous Coward | about 2 years ago | (#41631941)

nothing will change until you personally sue the Directors of the company with the summons served at their home

I can see both sides to this (1)

davidwr (791652) | about 2 years ago | (#41632201)

If all the rights-owner wants is a takedown of the audio track, then the big question is whether it impacts sales. Factors that go into this include how "public" the video is, how much of the work is used, the quality of the work e.g. is it crystal-clear or is it muddled?

If it's a partial track, if it's muddled, or if it's on a "friends-only" or otherwise-restricted-to-a-small-number-of-people part of the Internet, then any claim of fair use should be taken at face value, particularly if the person who put it up there isn't getting paid.

If it's a crystal-clear version of the whole song that I can copy to my mp3 player as a substitute for buying the real thing and if it's available to practically the whole planet, then the rights-holders have a much stronger case.

That's for a takedown-only.

On the other hand, if they are suing for damages, then you've got the usual questions of intent/motive, etc. in addition to the above.

Consider this scenario:

I want to distribute a song all over YouTube just to tick off the recording industry, hoping they'll take the bait and waste a bunch in legal fees.
I get my toddler to dance to the music and make sure the sound of the song comes through loud and clear with no background music.
They do the DMCA takedown. I file a counter-notice. They sue me. I claim fair use. I win and win the counter-suit for abusing the courts.
A few months or years later I'm stupid enough to brag about how I baited the music industry and won.
The industry gets wind of it and sues me for all my previous winnings plus copyright infringement plus abuse of process and they bankrupt me.

And this alternate scenario:

The same, except I'm smart and don't brag until I'm an old man and the statutes of limitations are long expired.

Correctly done, both scenarios are indistinguishable from a real innocent user whose toddler likes to dance to music and whose parents like to share their kid's precious moments with the world and whose parents happen to have an very good audio pick-up on their video camera.

Re:I can see both sides to this (1)

gl4ss (559668) | about 2 years ago | (#41632907)

since when is getting someone to sue you because they're stupid abuse of process?

Revolution (1)

Valor958 (2724297) | about 2 years ago | (#41632247)

You know, after all this cr@p back and forth from these studios, the MPAA/RIAA, et al... I'm so sick of the whole broken system. If there ever comes a time when revolt against these industries and institutions comes about, I'm all on board. Tear it all down and start over.

Triggerhappy lawyers (1)

Anonymous Coward | about 2 years ago | (#41632559)

The big companies have hundreds of blood sucking lawyers on retainer, and because the blood suckers don't want to lose the gig, they are very keen to 'go hard' for the team. Likewise, the companies inform them that they want to see action for their investment in time. As a result, you get triggerhappy litigators who yelp at people like Google to 'Take down that video because it contains a color we have patented'. Facing a legal threat, Google complies. Then, in hindsight, we see that fair use got trampled. I think the idea is this: for every time someone tries to use a song in a fair use way, the lawyers shoot first. Later, questions are asked, and we determine fair use. We only make the determination if someone asks questions later. If they don't ask, then fair use gets trampled. In this way, big music gives people the idea that they have no expectation of fair use, and in reality that's what happens. Fair use is still on the books, but big music hates it, and because of the triggerhappy lawyers, they mostly get away with destroying it.

Basic math for Jehova's Witnesses' star member (1)

toriver (11308) | about 2 years ago | (#41633813)

Economic loss to Mr. Prince Roger Nelson as consequence of the YouTube video: $0
Economic loss to Mr. Prince Roger Nelson as consequence of former fans like me boycotting him for the greedy, overstepping-the-boundaries foolishness of the takedown: More than $0.

Load More Comments
Slashdot Account

Need an Account?

Forgot your password?

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
Create a Slashdot Account

Loading...