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Censorship Your Rights Online

A Second Lessig Fair-Use Video Is Suppressed By WMG 187

Posted by kdawson
from the irony-abounds dept.
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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A Second Lessig Fair-Use Video Is Suppressed By WMG

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  • by johnlcallaway (165670) on Tuesday March 02, 2010 @06:52PM (#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.
  • Free Speech (Score:2, Insightful)

    by Kraagenskul (828606) on Tuesday March 02, 2010 @06:52PM (#31337296)
    Isn't guaranteed by companies.
  • by tekrat (242117) on Tuesday March 02, 2010 @06:53PM (#31337310) Homepage Journal

    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.

  • Counternotice (Score:3, Insightful)

    by Spazmania (174582) on Tuesday March 02, 2010 @06:57PM (#31337362) Homepage

    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.

  • by selven (1556643) on Tuesday March 02, 2010 @06:58PM (#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.

  • by Anonymous Coward on Tuesday March 02, 2010 @06:58PM (#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".

  • by Annymouse Cowherd (1037080) on Tuesday March 02, 2010 @07:02PM (#31337436) Homepage

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

  • by NeutronCowboy (896098) on Tuesday March 02, 2010 @07:02PM (#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.

  • by Korbeau (913903) on Tuesday March 02, 2010 @07:03PM (#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.

  • by MindlessAutomata (1282944) on Tuesday March 02, 2010 @07:04PM (#31337466)

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

  • by twidarkling (1537077) on Tuesday March 02, 2010 @07:07PM (#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.

  • by Annymouse Cowherd (1037080) on Tuesday March 02, 2010 @07:08PM (#31337522) Homepage

    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.

  • by retchdog (1319261) on Tuesday March 02, 2010 @07:08PM (#31337524) Journal

    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.

  • by twidarkling (1537077) on Tuesday March 02, 2010 @07:09PM (#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.

  • by tomhudson (43916) <barbara DOT huds ... a-hudson DOT com> on Tuesday March 02, 2010 @07:21PM (#31337668) Journal

    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.

  • by siloko (1133863) on Tuesday March 02, 2010 @07:27PM (#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 . . .

  • by howlatthemoon (718490) on Tuesday March 02, 2010 @07:28PM (#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.
  • by bmo (77928) on Tuesday March 02, 2010 @07:30PM (#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

  • by TubeSteak (669689) on Tuesday March 02, 2010 @07:35PM (#31337848) Journal

    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.

  • Can we say.... (Score:2, Insightful)

    by Erinnys Tisiphone (1627695) on Tuesday March 02, 2010 @07:37PM (#31337898)
    Streisand Effect? Now, off to find a copy of that video...
  • by gurps_npc (621217) on Tuesday March 02, 2010 @07:46PM (#31338016) Homepage
    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:Free Speech (Score:2, Insightful)

    by Anonymous Coward on Tuesday March 02, 2010 @07:57PM (#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.
  • by EdIII (1114411) * on Tuesday March 02, 2010 @08:00PM (#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.

  • by jdcope (932508) on Tuesday March 02, 2010 @08:03PM (#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.

  • by Sloppy (14984) on Tuesday March 02, 2010 @08:23PM (#31338502) Homepage Journal

    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.

  • by Kalriath (849904) on Tuesday March 02, 2010 @08:32PM (#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.

  • by Anonymous Coward on Tuesday March 02, 2010 @08:33PM (#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?
  • by Anonymous Coward on Tuesday March 02, 2010 @08:47PM (#31338806)
    I'm pretty sure he meant "property" as in YouTube's servers. He wasn't talking about music or ideas.
  • by jdcope (932508) on Tuesday March 02, 2010 @08:51PM (#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:Counternotice (Score:1, Insightful)

    by Anonymous Coward on Tuesday March 02, 2010 @10:12PM (#31339490)

    No. No, that's not "ok for a regular person". There we go again, giving profit priority over humanity.

  • Re:Free Speech (Score:4, Insightful)

    by element-o.p. (939033) on Tuesday March 02, 2010 @10:20PM (#31339540) Homepage

    I got it wrong, I thought that Free Speech was a right that could not be abridged by anyone, not even a Corporation.

    Yep, you got it wrong.

    The Bill of Rights* says absolutely nothing about what individuals or corporations can do. It limits what the Government can do through the laws it passes. So, no, sorry to burst your bubble, but Free Speech is not a right that "could not be abridged by anyone, not even a Corporation." "Free Speech" is a guarantee that the Government shall not pass any laws that prohibit speech. It does not guarantee you a corporate-built, corporate-owned, corporate-maintained forum to say whatever you like, whether or not the corporation that runs the forum likes it or not.

    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.

    Ummm...yeah. You just contradicted yourself there, dude. If, as you claim, Free Speech is a right that cannot be abridged by anyone, then a contract abridging your Free Speech would be null and void, since such a contract would, in that case, be prohibited by the First Amendment ("No one, not even a corporation can abridge it", remember?). However, since that is most definitely not what the First Amendment says, then such a contract is valid, and YouTube can pull any video it wants, with or without reason, and there's squat you can do about it except complain and try to raise enough groundswell of public opinion that YouTube relents.

    Just be clear about your rights.

    Now that I agree with.

    *Disclaimer: I live in the U.S. and I have no idea where you live. Therefore, my arguments above may or may not apply in your jurisdiction. Furthermore, I am not a lawyer and this is not legal advice. Use your own judgment.

  • by b4dc0d3r (1268512) on Tuesday March 02, 2010 @11:11PM (#31339918)

    Since you brought the law into this, I feel the need to correct you. Not sure what you meant by "the reason for the suppression is a law." The origin of freedom of speech was a time where saying something unpopular could get you thrown in prison or executed. There is no law requiring suppression of the type of content in question. It's not like someone is trying to suppress the spread of information in this case. Most likely it's an automated tool which analyzes audio tracks for familiar fingerprints, then sends a takedown notice.

    Thankfully, the actual video is available elsewhere, where you can both hear and see it.

    That's all you really need to know. Speech is not being restricted, and it's not due to a law.

    Now, either it's a full DMCA notice or it's not, we don't know yet. The law makes it easy to issue a DMCA takedown request, but it allows for a counter-notice which reinstates the information. I hate the DMCA, but this aspect is fair. In this case, the reason for suppression is an unchecked tool. Either a tool which is a program or a person who is a tool, doesn't matter. Someone didn't double-check before requesting the audio be muted. This would be a clear-cut case of abuse of process by Warner. If it was a legit DMCA notice, Google did what it had to do according to the law. And that might be what you're referring to. But the same law allows for a counter-notice which restores the content, invalidating your claim.

    If it's not a full DMCA notice, then the hosting company outs itself as pro-corporate, anti-user. The law has nothing to do with this case, the hosting company just likes annoying its users and pleasing business. You could argue that Google is deciding to be overly cautious due to the law, but that's not valid either. It's Google's decision whether to pull content without a full DMCA notice. The only argument you could make here is the same one that people make all of the time - it costs a hell of a lot of money to defend yourself if someone brings a lawsuit, even if every fact is clearly in your favor. You have to take time and money to fending off the suit. That's a universal problem with the legal system, and has nothing to do with a particular law.

    As GP said, free speech is a somewhat tenuous claim when you're talking about a company that spends money hosting your content and serving it to unlimited numbers of people. Even if a video host takes down every video with any reference to a pickle, because the founder hates pickles, you can't claim your free speech is being violated ad you should be able to discuss pickles. The website makes its own rules, and the one with the least idiotic rules will generally win the most users.

    The logical conclusion is either Google will keep pulling content, annoying its users and forcing a competitor to step in with a "no videos pulled without a fully valid DMCA 512 notice" policy, or it will get tired of going back and forth and require fully valid notices. You are still allowed to host it elsewhere, lots of places host videos, or you can pay to host it.

  • by Anonymous Coward on Tuesday March 02, 2010 @11:29PM (#31340022)

    Private media is controlled by government laws, which are created by private media that "lobby" said laws onto the books. The existence of the government has become no more than a facade to give the illusion of choice to the public; a phony father figure that people believe will protect them in their time of need. Free speech and fair use laws have become shadows of their former selves, rendered impotent by the infection of corporate money in our festering, corrupt government.

    You can't look to the laws to determine what's right or what's wrong. People have to stop brushing off abuses just because they fall under the category of "legal", instead of looking at them for what they are and what they mean to our future. We have to fight for what's right instead of accepting a status quo which is ever-tilting in Big Money's favour each time we turn a blind eye to issues like this.

    One day people will wake up with no rights, no property, and no hope.

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