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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
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.
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.
Yeah, well, it's also in the DMCA that companies are making a sworn statement but nobody has every been charged with perjury.
Because when they bought the laws they gave themselves all sorts of exemptions so they could do anything without penalty and just say "oops", while using it as a weapon against everybody else.
And then they got the federal government to be their enforcement arm.
Absolutely NOTHING about the DMCA has EVER held corporations accountable. They can pretty much make any old bullshit up and say "ow, wow, a drunken intern did that, we though it was real" .. even if it's fairly obvious they're lying.
They have never recognized fair use.
Lost at C:>. Found at C.
The entire industry is centers around the idea of continued profit without effort. Any challenge to that is not just an undue burden, it borderlines blasphemy.
I don't suffer from insanity, I enjoy every minute of it!
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.
There is a common misconception about DMCA complaints that they are sworn under penalty of perjury. Like most misconceptions there is an element of truth to it. In this case, it is a matter of the *scope* of what is being attested to under penalty of perjury. Specifically, that the person filing the complaint is in fact a duly authorized agent of the copyright holder for the work that is claimed to being infringed.
This allows the absurdity of filing a complaint for infringement against ... oh, I don't know, one of the Star Wars movies ... against an image of Mickey Mouse. As long as the filer is, in fact, a duly authorized representative of Disney (current owner of the Star Wars franchise) then the claim is good. There is *no* standard for the claim of infringement.
My "favorite" cases are where someone gets a complaint (or lawsuit) because they gave credit to a person or work as inspiration. Perhaps the most famous one (which was settled privately) was over the twenty six seconds of silence (or whatever length it was). But I've personally seen it as well. The lesson? Never give credit to anyone for anything unless you are paying them a previously agreed on amount. Which is horrible, IMO.
Yeah, well, it's also in the DMCA that companies are making a sworn statement but nobody has every been charged with perjury.
Except that you've misunderstood what they are swearing to. The DMCA doesn't require a sworn statement that the material they are complaining about infringes their material. It only requires a sworn statement that the material they are complaining is being infringed upon belongs to them.
In other words, if I write a song and you upload a different song and I want to file a DMCA takedown, I am well within my legal rights. I am required to swear that I actually hold the copyright to MY song...not that your song actually infringes on my song (that's for the court to determine). However, if I file a takedown complaining that your song infringes on a Beetles song, then I am guilty of purjery, since I swore that I own the copyright to that Beetles song (which I don't)