I may have been a little quick on the trigger last night when
I wrote about EFF's suit against YouTube
[*]. Fred von Lohmann responds in
the comments section:
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?
I've met Fred and he seems like a pretty sharp guy, so I probably
should have assumed that he had a reasonable point.
Anyway, a few notes here. If YouTube has licenses from the
performing rights organizations, then (as I understand it),
then yeah, this performance would be licensed. And since
this is just a cover, then it's not at all clear what about
this video Warner has a problem with.
With that said, while the performance itself is noncommercial, YouTube
certainly makes money from the video from the advertisements they show
on the page. As I understand it, the publishers go after bar owners
who have live music, even if the musicians themselves aren't paid, so
I'm not sure the situation is that different for YouTube's position
vis-a-vis the publisher, at least ethically, which is a different matter from
legally (though again, as Fred says, they have a
license.) As for what kind of copyright system we want to have,
I think it's pretty clear that we do have the kind of copyright
system that discourages people from engaging in creativity.