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EFF Lawyer Calls YouTube ContentID Worse Than DMCA 219

Posted by timothy
from the take-toys-and-go-home dept.
Richard Koman writes "Warner Music Group is apparently blocking everything YouTube ContentID comes up with as potential infringement. We knew that, but this piece by Jason Perlow shows that they're also spewing out DMCA takedown notices for some pretty clearly fair-use stuff. In my interview with EFF's Fred von Lohmann he talks about how, as bad as the DMCA process is — and it's pretty firmly against fair-use — YouTube's process gives remixers and digital creators even fewer options to assert their right to speak through the fair use of copyright material. While EFF is negotiating with Google and the studios, he suggests that users boycott YouTube if they won't stand up for fair use."
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EFF Lawyer Calls YouTube ContentID Worse Than DMCA

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  • Alternative? (Score:3, Interesting)

    by Fallingcow (213461) on Thursday April 09, 2009 @03:25PM (#27522919) Homepage

    Is there an alternative that's as easy to use and allows embedding of the videos on other sites?

    • Re:Alternative? (Score:5, Insightful)

      by seeker_1us (1203072) on Thursday April 09, 2009 @03:33PM (#27523029)
      An alternative is giving the giant middle finger to the RIAA and using ONLY independent music in your YouTube videos. Go creative commons, go attribution only, etc, and fully credit those artists so people can discover them and realize they can get good or better music without the RIAA
    • It's called the dispute button. It leads you to a page listing several categories of valid and invalid dispute reasons. One of the valid options is "this use does not require the copyright owner's permission"; select the radio button next to that and you'll get a text box for further information. Put a Twitter-length explanation of why you believe your use is a fair use under the Copyright Act, and you just might win if you have a decent case. I won the only dispute filed against me, which was for the use of "Take Me Out" in this video explaining how it sounds like an Animal Crossing song [youtube.com].
      • by Smidge207 (1278042) on Thursday April 09, 2009 @03:43PM (#27523195) Journal

        Put a Twitter-length explanation of why you believe your use is a fair use under the Copyright Act, and you just might win if you have a decent case.

        Whoa. Hold on there, son. Yes, I agree: there is a strong need to change the laws that define patents, copyrights, trademarks and intellectual property. The current set of laws are either based on older laws or have been designed by the wrong people.

        But - and I need you to put down the remote and listen to me, child - there needs to be a balance between inventors, writers and the public. DMCA was written too broadly by the entertainment industry. Another hurdle that hurts the common man is the costs involved in getting a patent, copyright or trademark are at times higher than the expected revenue to be derived by having a patent, copyright or trademark.

        Fair use also needs to be protected. If a video of a child's music recital is taken down because of copyright laws, then those laws have gone too far. The song "Happy Birthday" apparently is still copyrighted, but the public is allowed to sing the song at special events without paying anything to the copyright holder.

        Art and music are vital parts of culture, the artists should have credit and benefit of sales; but, the public has a right to experience art and music without undue burdens that treat the enjoyment as a commodity. Fucking kids!

        =Smidge=

        • Re: (Score:2, Insightful)

          by ubrgeek (679399)
          why hasn't someone marked this comment up? I'm actually surprised it hasn't been marked flamebait as it calls out that there's a reasonable - and logical - middle ground. Damn you, Smidge. Go take your logic somewhere else ... Like Fark *grin*
        • Re: (Score:3, Informative)

          by phantomfive (622387)

          Another hurdle that hurts the common man is the costs involved in getting a patent, copyright or trademark are at times higher than the expected revenue to be derived by having a patent, copyright or trademark.

          Actually you are wrong, at least as far as copyright. All you have to do to copyright something is write it down. That's it. No expense involved. If you've had it published, it is common to send a copy to the library of congress as proof that you did indeed write it, but it is not necessary.

      • by Neoncow (802085) on Thursday April 09, 2009 @04:10PM (#27523627) Journal

        Write up your experience with filing your counter-claim. Add an easy to understand explanation of what DMCA is and why it's bad. The key is easy to understand and follow.

        Post it to a blog or website. Report back to slashdot and we can distribute it among young YouTubers.

        Education + youthful resentment of authority + Gen Y/Gen Z entitlement - Music videos == digital revolt.

        • I can't give it a proper write-up because I didn't take enough notes while I did it, and once I've submitted the dispute, I no longer have the UI available to me to take screenshots. But seriously, it's not that hard. If you can write a good fair use rationale for English Wikipedia, you can write one for YouTube.

          • by Neoncow (802085)

            That's very true. I'm simply being lazy and hoping that someone else will do it.

            (Which is exactly what blocks fair use users(?) from filing counter-claims in the first place.)

      • How many Libraries of Congress is that?
      • by mabhatter654 (561290) on Thursday April 09, 2009 @05:30PM (#27524719)

        unfortunately, you're at the mercy of whatever low-paid operator they have looking at those.

        Other posters are correct though, the DMCA is too broad by miles, but Google couldn't run YouTube without the compliance laws. As long as Google continues to take down THEY stay out of court.

        I think Google might be planning a coup soon though. Remember things like ContentID are designed for studios to police there own works because Google wasn't doing "enough". Google's making it dead easy to identify copyrighted works, but on the other hand they're setting the content publishers up to take a big fall. They say 37% of the DMCA notices are inappropriate or incorrect... the CONTENT OWNER is expected to know fair use rules too. Once Google can demonstrate a clear pattern that publishers aren't respecting fair uses they can take that mountain of data to court with them... with all those companies names on it and put some feet to the fire to get the laws changed.

  • if college students from places that are righting **AA put up fair use items. Then when Warner and others go after these, then put the lawyers against the companies. Once they feel the heat of lawyers, then things will change.
    • I'm afraid I don't understand your master plan.

      if college students from places that are righting **AA put up fair use items.

      Do you mean "writing"? what does "righting **AA" or "writing **AA" mean exactly?

      Then when Warner and others go after these, then put the lawyers against the companies.

      What lawyers? I thought they were students. Students probably couldn't summon their university lawyers, and most likely the lawyers would advise the students to take down infringing material. Maybe the whole "righting *

      • by idontgno (624372)

        I'm afraid I don't understand your master plan.

        He accidentally the submit button.

        4chan ftw

    • Re: (Score:2, Informative)

      by Gerzel (240421) *

      And who pray tell will be paying for this?

      "put the lawyers against" requires money, and a lot of it. If you are a non-wealthy tier citizen it is not something you can afford and therefore any rights requiring lawyers or legal assistance is something which non-wealthy citizens(aka middle class and lower) are not entitled to, where wealthy citizens are.

      This is how the US government works. The wealthy class are taught the language of money and law, and given the ability, clout and means to use it(all three a

      • "put the lawyers against" requires money, and a lot of it.
        Really? I was under the impression that many of the legal students in places like MIT, Harvard, etc were taking on the *AA. AND doing it for free. Of course, I could be incorrect. I guess that if I did not read the correctly in numerous articles, then we should all apologize to you.

        OTH, If YouTube has a relatively open posting approach and I post something there, and another entity tells Youtube to take it down, then it is ME that was slighted, no
  • by nicolas.kassis (875270) on Thursday April 09, 2009 @03:34PM (#27523035)
    Whatever google does is going to end up being bad, including doing nothing. The online user submitted content arena is a total hell hole. I would not touch that stuff with a 10Gbit/s foot tube.
    • by DrEldarion (114072) on Thursday April 09, 2009 @09:03PM (#27526723)

      Google is doing exactly what they're required to be doing here by taking down the videos. The fair users are supposed to be filing DMCA counterclaims saying that their work does not infringe, and at that point the work will be put back up.

      It's not Google's job to be a mediator here. In fact, they open themselves up to legal liability (which they're trying really, really hard not to do with respect to Youtube) if they start becoming one.

  • Actually (Score:5, Interesting)

    by geekoid (135745) <dadinportlandNO@SPAMyahoo.com> on Thursday April 09, 2009 @03:37PM (#27523085) Homepage Journal

    You-Tube is losing money, so use their services even more of you don't like them

    They give us content at a loss, but make up for it in volume.

    • Citation please?

      First google result I found said that net revenue had increase 101% in the last year, although YT profits represent only 1-1.5% of googles total ad revenue.

      Not a loss by a long shot.

    • Re:Actually (Score:4, Insightful)

      by mrbene (1380531) on Thursday April 09, 2009 @04:19PM (#27523737)

      You-Tube is losing money, so use their services even more of you don't like them

      They give us content at a loss, but make up for it in volume.

      I may having a bit of a slow day. This series of statements doesn't seem logically sound.

      Perhaps the intent is to state:

      1. YouTube is currently generating more cost than revenue.
      2. Due to economies of scale, infrastructure and delivery costs grow less quickly than audience size.
      3. Due to a larger audience allowing a premium on ad impressions, ad related revenue grows more quickly than audience size.
      4. It is YouTube's ultimate goal to become profitable by increasing audience size beyond the point that these two curves converge.

      However, this thesis is at odds with the recommendation to "use their services even more if you don't like them".

      • by pi_rules (123171)

        I may having a bit of a slow day. This series of statements doesn't seem logically sound.

        It's an old joke but I can't remember the source.

      • by compro01 (777531)

        I think his point was the use their services even more to the extent that 2 becomes false, breaking the rest of the chain.

  • by kylemonger (686302) on Thursday April 09, 2009 @03:45PM (#27523237)
    ... to the tune of 470M per annum according to Credit Suisse analyst Spencer Wang [barrons.com], maybe we should pile on instead of boycotting them. :)
  • Donate to EFF! (Score:5, Informative)

    by siliconwafer (446697) on Thursday April 09, 2009 @03:47PM (#27523271)

    ...he suggests that users boycott YouTube...

    Good idea. I also suggest making a donation to EFF [eff.org].

    • by geekoid (135745)

      the EFF has been slipping more into using scare tactic headlines and statements and away from just listing facts.
      So I will NOT be donating this year.
      Yes I have donated in the past.

  • Tell you what (Score:4, Insightful)

    by moniker127 (1290002) on Thursday April 09, 2009 @03:48PM (#27523281)
    We don't NEED warner's music/movies. With the web, we've developed to a point where independently run shows are more entertaining than big business crap.
    Think hak5, collegehumor, derrik comedy, truenuff.
    Yeah, honestly, fuck warner. If they don't want to share, they don't get to be part of the future.
    • We don't NEED warner's music/movies.

      Clarification: Time Warner spun off Warner Music Group a few years ago. Now they share nothing but the Warner name and the WB logo, and possibly a favorable license to use WMG music in TW films.

      With the web, we've developed to a point where independently run shows are more entertaining than big business crap.

      But who will provide the background music for these independent shows?

      Yeah, honestly, fuck warner. If they don't want to share, they don't get to be part of the future.

      Think of that on the day you go one year into the future. Your family will probably sing you a song copyrighted to Warner/Chappell [wikipedia.org], a division of WMG.

    • We don't NEED warner's music/movies.

      True enough. It's entertainment, we don't need any of it, much less theirs.

      With the web, we've developed to a point where independently run shows are more entertaining than big business crap.

      The hell we have. I have yet to see ONE, just one, independently produced show that was anywhere near as good as a professional show (unless we deliberately cherry-pick our indie shows to be good and our pro shows to suck). We're nowhere near the point you claim.

  • As seen Apr. 9, 2009, 6:30 AM on http://www.businessinsider.com/is-youtube-doomed-2009-4 [businessinsider.com]

    According to a report by Credit Suisse, YouTube is on track to lose roughly $470 million in 2009. No matter Google's $116 billion market cap: a half-billion dollar loss on a single property, even one as large as YouTube, is a bitter pill to swallow...

    Since the majority of Google's costs for the service are pure variable costs of bandwidth and storage, and since they've already reached the point at which no greater econo

  • They don't like YouTube, they don't like Obama [slashdot.org]... does the EFF like anything?

    Seriously, write a press-release about how much you love little puppies or something. Your grumpiness is making me depressed.

    • by geekoid (135745)

      Well they seem to be running out of new Ammo, so are just gunning on the big names, usually using scare verbage in their posts.

      Seriously, they ahve taken a huge dive in the last 10 months.

    • But, but! That would break with the internet hate machine school of journalism!

      If the EFF didn't hate, we wouldn't care! Honest!

    • The EFF always slips into high melodrama mode when they need to raise funds. Slashdot has served as one of their principal PR platforms perennially. It's pathetic and smarmy, but it's nothing new.

    • Re: (Score:2, Flamebait)

      by uigrad_2000 (398500)
      [quote]they don't like Obama... does the EFF like anything?[/quote] Last I knew, the middle 'F' in EFF was for Freedom. That may have just a bit to do with the dislike for our current dictator.
  • by Anonymous Coward

    So the EFF says that YouTube ContentID is worse than DMCA, and that Obama's wiretapping defense is worse than Bush's...

    EFF: Tomorrow's Proclamations Will Be Worse Than Today's.

  • once said "There is no fair use to take something that doesn't belong to you." Evidently, his corrupt spirit continues to rule the dark kingdom of Mediopolis. Fair use is a legal right, at least within U.S. law, but it appears that corporate media copyright conglomerates will make you fight for that right, each and every you exercise it, until you give up.
  • Doesn't every YouTube video that is entirely quiet violate copyrights on 4'33" [wikipedia.org]? If so, then the copyright holder of that 'song' could dispute many videos, and potentially open the path to new revenue by getting all those copyright pirates to buy a license for the use of silence.

  • Workaround (Score:2, Informative)

    by dhermann (648219)

    I know there are a great many video editing tools out there, but here is how to do it in Sony Vegas.

    1. Highlight the audio track that is flagged.
    2. Choose Options -> Audio -> Apply Audio FX (or something to that effect; I don't have it in front of me)
    3. Choose Pitch Shift
    4. The top scroll bar is for very large shifts in pitch. You want a small one, so use the second slider. I am not sure what kind of threshold is necessary to avoid detection by YouTube, but a quarter-step (moving the slider to about 1/4 of t
  • by Devil's BSD (562630) on Thursday April 09, 2009 @03:58PM (#27523443) Homepage
    So as far as I know, all DMCA takedown notices must have the following legalese blurb:

    "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

    IANAL, but it seems obvious to me that misrepresenting something that is clearly fair use as something that isn't means that the notification was NOT accurate. Therefore, the law firm representing the copyright holder (and possibly the copyright holder themselves) should have charges of perjury filed against them. I haven't seen the EFF file any countersuits like this yet, though...

    • by HiThere (15173)

      Who can prosecute them for it? I've never, ever, heard of that statement being invoked against anyone. (I did hear an explanation as to why it's essentially meaningless unless you are representing yourself...but I don't remember it anymore.)

    • by dirk (87083)

      Actually, you are incorrect. The problem is, Fair Use is a defense. If you are sued for use of copyrighted material, you can go to court and claim that what you were doing is Fair Use and you should not be penalized for it. They are not claiming what is there is not Fair Use, they are simply claiming that the video is using copyrighted material, which is correct. It is up to you to then prove that your use was Fair Use and okay.

      • They are not claiming what is there is not Fair Use, they are simply claiming that the video is using copyrighted material, which is correct.

        I thought they were claiming the use of copyrighted material infringed upon the copyright laws, not simply that the copyrighted material was present. Wouldn't consideration of fair use fall under the determination of whether or not copyright infringement was committed?

        • by dirk (87083)

          Consideration of Fair Use only happens after the fact. They are simply saying "They have used our material without our permission", which is true. It is then up to the person to prove to the judge that while they were using the material without permission, it is okay because it falls under fair use. Only a judge can determine if something is truly fair use.
           

    • YANAL (Score:4, Informative)

      by vlad_petric (94134) on Thursday April 09, 2009 @04:26PM (#27523851) Homepage
      Problem with fair use is that it's a very vague concept (at least in the USA) to begin with. RIAA is even claiming that it's not a right, but an affirmative defense. So anybody can claim that X is not a fair use of Y without committing perjury in any way.
    • by Thaelon (250687) on Thursday April 09, 2009 @05:24PM (#27524653)

      The penalties mentioned only apply if you're not actually the copyright holder. They do not apply if your DMCA claim is utter bullshit. In short, you can make false claims utter impunity.

      They were very careful to write the law that way so that it would have minimal repercussions for copyright holders when abused, and maximum impact even when abused. For that reason it's about the most heinous and abusive law ever passed in the U.S. as far as favoring corporations over the people.

      FYI: The DMCA a major focus www.chillingeffects.org [chillingeffects.org].

  • Seems like every other video I go to watch is without audio due to 'complaints' and 'infringement'

    While this is a good thing for those gameplay videos that involve rap being played at 2x the volume of the game's sounds, it is a BAD THING for things like anime music videos, or parody videos, etc.

    Things that should be fair-use are being taken down for 'infringement'.

    Perhaps someone could get away with a slander/libel case against whoever called it infringement when it was fair use?

  • by hack slash (1064002) on Thursday April 09, 2009 @04:02PM (#27523519)
    Earlier this year when YouTube started silencing user posted videos in response to WB, someone posted this link [google.co.uk] which did a search for silenced YouTube videos.

    Right now there are over 22,000 search results, the highest I've seen it was 300,000+ search results, meaning overall YouTube appear to have silenced over well over 1/3 million videos (and probably then removed most of them).
  • by eldavojohn (898314) * <eldavojohn&gmail,com> on Thursday April 09, 2009 @04:06PM (#27523575) Journal

    The New York Times reports that many YouTube users have found themselves in the same position as high school sophomore Juliet Weybret, who posted a video of herself playing piano and singing "Winter Wonderland."

    Troy McClure: Oh, how darling! That is one swinging rendition, Juliet!
    Troy McClure: But today I'm going to teach you the magic of copyrights! Do you know that you're violating the law?
    *Juliet shakes her head*
    Troy McClure: GOOD! That just might hold up as a defense in court if you look a little more sweeter and innocent. But your fate is up to the RIAA to decide!
    Troy McClure: You see, Juliet, copyright law is designed to be much too complex for any normal citizen to understand for a reason: so that you, the average citizen, will always lose. Now where did you learn that song from?
    Juliet Wybret: My grandma.
    Troy McClure: Jackpot! The RIAA loves to interact with the elderly that can't understand technology. I'm certain she paid a handsome sum to play that song for you though otherwise the two of you are thieves. You're not a thief, are you Juliet?
    Juliet Wybret: I don't think so.
    Troy McClure: Of course not! You see there is a simple law that states for works created after 1978 copyright lasts 70 years after the last surviving author's death (in the case of joint) and works between 1964 and 1977 are the same except were under the old model which had terms of 28 years starting in 1923 but they had to be renewed in order to enjoy the benefit of the full 95 year term after the last surviving author's death. Easy to remember, right? So you see, Winter Wonderland was composed by Felix Bernard who died in 1944 and the lyrics were written by Richard B. Smith who died in 1935. The good news is that you can publicly say the lyrics after 2030 and play the music on piano after 2039! So you're almost there!
    Juliet Wybret: Bu ... but my grandma and mom play this song for the whole family every Christmas ...
    Troy McClure: Easy there, Juliet! The RIAA's got enough ammo against you as it is. Remember, the Senators and Congresspeople who represent you and your interests want it this way so be an American Patriot and embrace the law! They were only thinking of a fair system for you and the artists when they made these laws. See you next time!

  • by downix (84795) on Thursday April 09, 2009 @04:07PM (#27523581) Homepage
    Earlier today I had an urge to listen to Devo's Jocko Homo from their self-produced movie.  Found two copies, only to have the sound removed because a record label was claiming copywrite on the music.  Hello, the music is within a movie which is copywrited by Devo Productions, how can you claim to control what is within their own movie?!?
    • Re: (Score:3, Informative)

      by PRMan (959735)
      Easy. Bands don't own the rights to their own music.
    • by DynaSoar (714234)

      Earlier today I had an urge to listen to Devo's Jocko Homo from their self-produced movie. Found two copies, only to have the sound removed because a record label was claiming copywrite on the music. Hello, the music is within a movie which is copywrited by Devo Productions, how can you claim to control what is within their own movie?!?

      Devo owns the rights to the movie and music, and can do whatever they want with that material and the associated rights (that someone is willing to pick up). They obviously sold, leased or otherwise signed away the rights to audio reproduction of the soundtrack and/or songs therein. They probably still own it but are sharing the reproduction rights with the record company because it is more likely to be able to make them money than if they simply retained the rights. I suspect this is because their record p

  • The U.S. government cannot deny you the right to carry a firearm to work, but the company you work for may.
    The U.S. government cannot prevent you from filling your yard with yard gnomes, but your housing association may.
    The U.S. government cannot force you to stop drag racing, but the company that hosts your life insurance policy may.
    The U.S. government cannot prevent you from sharing particular content online, but the site that you use for hosting the content may.

    In each example, you are entering an agr

    • The U.S. government cannot prevent you from sharing particular content online, but the site that you use for hosting the content may.

      ... because that company is in danger of being sued for copyright infringement, which is a cause of action created by Federal statute and enforced by Federal courts (whose officers are paid with Federal tax dollars). So, the federal government is enforcing a censorship law. I don't see how you've argued around that basic fact.

      I agree with you that Youtube is under no obligat

  • by Animats (122034) on Thursday April 09, 2009 @04:53PM (#27524185) Homepage

    Synchronization of music from source A with video from source B is not "fair use". Especially when big chunks of a song, or even the entire song, are copied.

    There's free royalty-free music [incompetech.com] available. There's vast amounts of cheap techno. Out of copyright classical. Garage bands. Or, in many cases, you can call up a minor label and buy a license. I've done that.

    Quit whining.

  • by TheDarkener (198348) on Thursday April 09, 2009 @05:04PM (#27524319)

    ...which clearly had no copyright infringement besides mentioning an auto system cleaning product. I made the video myself. No answer was given to me, only that I had a hit against my account and if I got 3, it would be deleted. There's obviously no way to battle their decision. It sucks.

  • Jason Perlow wrote quite a rant without about fair use without understanding how it works. Simply lowering the sound quality of copyrighted recordings doesn't give him the right to redistribute those songs in their entirety. Using a short clip of one or two songs might have been okay.

    I agree that what he did was reasonable from a common sense perspective, and that it was silly and pointless of Warner to issue a takedown request for the video in question. Unfortunately, common sense has NOTHING to do with co

  • by Skapare (16644) on Thursday April 09, 2009 @06:16PM (#27525295) Homepage

    ... buy music that comes with clear permission [magnatune.com] to use the music you buy on places like YouTube [youtube.com].

    Disclaimer: My only association with Magnatune [magnatune.com] is being a happy customer.

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