YouTube and EFF

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EFF complains about YouTube's automated copyright enforcement system:
This is what it's come to. Teenagers singing "Winter Wonderland" being censored off YouTube.

Fair use has always been at risk on YouTube, thanks to abusive DMCA takedown notices sent by copyright owners (sometimes carelessly, sometimes not). But in the past several weeks, two things have made things much worse for those who want to sing a song, post an a capella tribute, or set machinima to music.

First, it appears that more and more copyright owners are using YouTube's automated copyright filtering system (known as the Content ID system), which tests all videos looking for a "match" with "fingerprints" provided by copyright owners.

As I've no doubt mentioned before, I'm no lawyer, but isn't it actually copyright infringement to publicly perform covers of songs written by other people? Now, as I understand it, you would only need permission from the song writer's representative [typically Harry Fox Agency], not the copyright holder on the recording, so maybe Time Warner is out of line here, but that isn't the same as saying it's legal.


The complaint is against remixes, not whole remakes.
The argument is that since the "work" on Youtube is a "fair use" of the original content, and has significant original contribution made by the new owner, and since the new owner isn't making any money from the work, that remixes are not infringement.

1. What an annoying brat (in the video)! Please don't sing anything, O annoying brat. Thank you.

2. Many people really do seem to believe that songs (and creative works generally) that "everyone knows" cannot possibly be creative works that deserve remuneration. "But everyone knows that, how can it be copywritten?" is something I've heard more than once.

It isn't clear why EFF seems to think that a music video would have different status from an audio-only recording, a cover song, or an audio sample that forms part of a "remix." I'm not even sure what they mean by a "remix" in this context. Sure, you could in theory take a line from a song that someone else wrote, and re-record or just copy it into a song of your own, but (a) that's not really fair use, (b) it would sound like crap and (c) nobody actually does that, except maybe one or two hipster underpants gnomes.

The "fair use" argument would apply if you quoted a line from the song in a musicology lecture.

The four tests for Fair Use, per copy right law, are:

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.

"Significant original contribution" doesn't matter. I can take John Grisham's latest novel and make "significant original contributions" by adding my poetry after every paragraph, but that doesn't make it Fair Use.

"I'm not doing it to make money (at the moment)" helps for the first factor, but that's not enough by itself to count as Fair Use.

Yeah, this is why the EFF has dropped off my giving list. If she sang that song in a public place, BMI or ASCAP or similar would come down on her and demand license fees. YouTube is probably making more off her rendition than your local bar with live music that pays mucho bucks to those two organizations, why shouldn't Google pay for music licenses?

Just to clarify a few things here.

First, YouTube has licenses from all the major performing rights organizations (ASCAP, BMI, SESAC), so the public performance is licensed, whether it's sung by a teenager or a professional. That means Warner Music must think some other right is being infringed. Reproduction? Derivative work? They don't tell you when they send a DMCA takedown notice or submit a fingerprint for automated Content ID matching.

Second, if you look at the four factors, the video is plainly noncommercial. It certainly doesn't displace sales of any professional versions of the song. And it also doesn't threaten any plausible "licensing" market, since I don't believe that music publishers are in the business of granting licenses to teenagers making noncommercial videos. I think those are the two most important of the factors here, and both favor the YouTuber.

And, finally, do we really want a copyright system that *discourages* people from engaging in this kind of creativity, especially when it doesn't hurt any existing commercial markets for the copyright owners?

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