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YouTube 'Dancing Baby' Copyright Ruling Sets Pre-Trial Fair Use Guideline
Mr. Droopy Drawers writes with news that the famous "Dancing Baby" case will move forward to trial, after a pre-trial ruling Monday that's already unpopular with the copyright holders on one side of the case. The New York Times reports that a three-judge panel has "ruled that copyright holders must consider fair use before asking services like YouTube to remove videos that include material they control. ... [The guideline] "sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech," Corynne McSherry, the legal director for Electronic Frontier Foundation, said in a statement." Mr. Droopy Drawers adds, "Of course, the RIAA is none too happy about the ruling saying, that it puts undue burden on copyright holders. However, the judge countered, 'Even paying "lip service" to the consideration of fair use is not enough, and could expose a copyright holder to liability.'"
(Also covered in an AP story carried by the Minneapolis Star-Tribune.)
(Also covered in an AP story carried by the Minneapolis Star-Tribune.)
In an Election year, no less.
How much money will the Congress Critters reap off this case?
Many Tons, I'm sure.
Truth isn't Truth - Guliani
Isn't it already in the DMCA laws that complaints must have some merit with regards to fair use?
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You mean that someone will actually have to _think_ before initiating legal action? And that we have some kind of duty to actually be right before laying down the law-hammer? What are we supposed to do with these fleets of autonomous sentry drones armed with fire-and-forget rocket dockets?
Next you'll be telling me that we have to make sure we have the right address before we start foreclosing on homes. This isn't the America I grew up in.
Seriously, it's an undue burden to check to make sure the law is actually being broken? Are these fucking morons kidding, or has their ego + sense of undue entitlement really gotten as big as I think it has?
If you believe in privacy, and believe you have "nothing to hide" at the same time, you're a goddammed idiot
But does it really matter when Youtube automatically censors so much?
"First they came for the slanderers and i said nothing."
The ruling is that copyright holders must consider fair use being issuing a DMCA request. But copyright holders no longer use DMCA requests to have content removed on Youtube. Hence the statement that copyright holders must consider fair use before having content removed from Youtube is wrong.
It's about fscking time we started telling the copyright owners that there are non-infringing uses which are considered fair use and aren't robbing you of revenue. People aren't setting out to do something which is depriving you of income, they're taking cute videos of their damned babies and putting them on YouTube.
Nothing at all about a video like this cuts into their revenue or adversely impacts them ... it's just assholes deciding there is no such thing as fair use. And the labels whining that it puts undue burden on copyright holders
is exactly the fucking point ... as opposed to them placing an undue burden on the entire world to not ever let anything happen unless they've pre-cleared it to copyright holders.
A brief snippet of a baby dancing to a Prince song (with low quality audio and everything) is pretty much the definition of fair use. It sure as hell isn't going to harm Prince in terms of record sales.
The copyright lobby seems to have decided the world operates solely at their sufferance. It's about time they got reminded it doesn't work like that.
Lost at C:>. Found at C.
But not "copyright agents," the third party services who are the ones who automate DMCA notices. Robosigning scandal, anyone?
Sucks for the recording companies that the case got heard in S.F. Liberal city surrounded by tech companies, no wonder the Judges there weren't as eager as their texas counterparts to suckle thoughtlessly on the genitalia of any incorporated entity with an IP claim.
Unicode killed the ASCII-art *
It's not like they even have to own the works to have them eliminated, surely "make sure there's actually infringement" goes too far!
The RIAA needs some 'undue burden' on it's collective ass, preferably by a very long, splinter-festooned telephone pole, shoved vigorously and with great prejudice up it's aforementioned ass. Will someone please pound a stake into the RIAA's cold, dead heart, and put it out of our misery already?
It's not one of those, that list is incomplete (but it doesn't claim to be a full list, it's just some well known examples from the list).
The full list has several entries that could potentially qualify - including "private non-commercial" and maybe even "educational purposes".
Unicode killed the ASCII-art *
So it's for teaching other babies to dance?
There are numerous problems with this notion.
First, there is no particular benefit to the rights holders to do so, nor did I note any penalty for a rights holder that does not. They say that right holders "should" do something, but so what?
Secondly, there's every chance that larger rights holders will still be able to strong arm the average person with bogus claims because the latter aren't as likely to have the money to even try and fight them anyways, so how much consideration fair use was given before making the takedown request will never even be analyzed.
Third, they can say they "considered it" and then progress forward anyways. There is no mechanisms to ensure that the rights holder gives the matter any genuine and sincere consideration before invoking litigation, particularly if they think they will win simply because they have more money to throw at the case, as I mentioned above. The notion that they may expose themselves to liability is probably not going to worry them if the smaller fish is unlikely to have the resources to actively pursue such litigation anyways.
It's a neat idea.... but without teeth, it's worthless.
File under 'M' for 'Manic ranting'
Section 107 specifies four things that should be considered in deciding if the use is fair.
https://www.law.cornell.edu/us...
1) Is the use commercial, or not?
The person posting wasn't making money from it, it was non-commercial in terms of suing the person posting it. I'm not sure if Youtube had ads at the time. In a suit against YouTube in it's current form, it would be commercial use.
2) The nature of the use
It's a very short video of small children, unlike the product sold by the record company. The subject of the video is the kids, the song is somewhat incidental.
3) the amount of the original work used, in proportion to the total.
Only 20 seconds of the song are used.
4) the degree to which the use affects the value of the original work - does it compete with authorized copies?
The video contained 20 seconds of low-quality audio. Approximately nobody would listen to the video instead of buying the song. In other words, no harm no foul.
The video scores quite well on at least three of the four points to be considered fair use. The degree to which it was commercial depends on how YouTube was doing their ads in 2007, and if the label wants to sue Youtube or the person posting it.
Courts may also consider other factors as well to determine fairness, but they must consider the four factors listed above.
YouTube Content ID's "monetize" setting does exactly as you suggest: identify the artist and title of the recording and offer links to stores selling a legit download. However, some music publishers and record labels in some countries choose to either use YouTube Content ID's block setting instead of its "monetize" setting or send notices of claimed infringement pursuant to OCILLA. In this case, Prince and Universal did the latter. And video game reviewers on YouTube have tended to get up in arms even over "monetize" settings applied to a game's soundtrack, as Content ID's "monetize" overrides Partner Program's "monetize".
The ruling still suggests that a computer algorithm to decide on the fair use question (such as the ones in use by Youtube et al) are sufficient to take material down. There was a dissenting opinion suggesting that probably wasn't good enough as algorithms don't have the capability or context to decide on all four points in the definition of fair use, but he was overruled.
As anyone with half a brain knows, the RIAA, MPAA, and publishers want to eliminate Fair Use, and Right of First Sale. as well as wanting to make it so that you cannot own a copy of any music, video, or book or ebook. What these malignant entities really want is for everyone to have to pay a fee whenever a song is listened to, a video is watched, and a book is read, either in whole or in part.
They keep TRYING to make it so that you don't own what you buy, but just rent it from them. Well, screw them! When I buy a book, video, or song, I OWN that copy of that book, video, or song. I can play/read it any time I want, as many times as I want, convert it to a different format or copy it to different media to play/read it on any device that I own. Oh, and I have the right to make 1 backup copy in the format or on the media that I choose. So I consider any DRM that prevents this to be highly illegal!!
While this ruling is a step in the right direction, there is a long way to go to correct the problems caused by the rampant unbridled corporate greed of these malignant entities!
There are too many times rights holders throw out a complaint, even when it's a clear case of fair use. Then they put the burden of proof on the publisher to prove it's really fair use. It's abusive and unfair and about time RIAA and that ilk got their pee-pee whacked for papering the landscape with infringement threats.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
this ruling didn't address whether the specific video was fair use.
It merely decided that Universal are required to consider whether the usage was fair use.
It is perfectly possible for this ruling to stand, and for the next court to decide that the dancing baby was infringing Universal's copyright.
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Next court in this case would be SCOTUS. Goodluckwiththat.
They should go after a woman and child in a video with bad audio, when the "full album" search in youtube yields the recorded version in it's entirety...
I miss the old America where people use to create content instead of just ripping it off wholesale and presenting it as their own.
the preceding comment is my own and in no way reflects the opinion of the Joint Chiefs of Staff
you misunderstand;
the ninth circuit appeals court just ruled on a narrow point with regard to the overall case.
the case now goes back to the _lower_ court who will rule on issues such as 'was this fair use?' and decide the result overall.
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Obligatory https://www.youtube.com/watch?...
Microsoft, Apple, Google, Amazon what's the difference? All steal money from devs and control with walled gardens.
Is this a DMCA case or not?
The DMCA requires that the copyright holder signs an affidavit indicating that they own the content. Does it also require them to state that it violates fair use? But if YouTube provides a "back door" where certain "privileged" copyright holders can take down videos without having to file actual DMCA requests, then the protections the law provides are moot. It is yet another case where 3rd-parties are interfering with our property rights.
The courts, Enforcement and Congress have demonstrated an arrogant disregard for Constitutional rights over the years, in favor of copyright under big corporation profits, so we no longer recognize their authority. Many people have taken the stance that it's now okay to pirate anything and everything.
Okay, I can't be the only one who thought the article was about *this* dancing baby video:
https://www.youtube.com/watch?...
This case has been going on for 8 years! The baby in the video is now 9 years old. But the entire time, UMG has never admitted to doing anything wrong. They continue to claim it in their right to take down baby videos if 20 seconds contains a degraded copy of one of their songs.
Compare this situation with what Taylor Swift has said in her objections to Spotify and Apple Music services. She keeps claiming that she does what she does for "the little guy" and for the artists that don't have her level of reach to defend themselves.
But there is no better example of the results of a "little guy" artist than a short family baby video. It might not be by a music artist and royalties from a streaming music service is not the main issue. However, shouldn't the freedom of this artist to express themselves without needless bullying be just as important?
I don't understand how Taylor Swift reaches the conclusion who is worthy of distributing "1989." When UMG gets first consideration for distributing her albums then she can not be about providing a win for the little guys. Why is the worst bully in the industry the one that gets a free pass on her boycotts?