8 ms·
Win for Fair Use in ‘Dancing Baby’ Lawsuit
- vortico 11y agoAny ruling toward the original purpose of copyright, where it merely prevented large manufacturers from making a profit on others' copyrighted work, is a good thing.
- aidenn0 11y agoWhile I generally agree with you: 1) Youtube is a large publisher 2) Youtube runs ads and profits on posted videos. 3) Copyright predates the ability for individuals to make millions of copies for essentially zero-cost, so some updating to the rules for the digital era makes sense.
- cookiecaper 11y agoCopyright has also been taken to its logical extreme in recent history, granting copyright terms that, in many cases, won't expire for 150 years or more from the date of publication, well beyond the lifespan of any human. Copyright was supposed to be a compromise between the public and the rightsholder, where the public was willing to give up some of its natural right to copying and sharing in order to incentivize creativity. We've left all that in the dust now, and our copyright laws are currently based solely on scare tactics from massive media conglomerates. IP reform is badly needed but I think we've still got a little ways to go before it seems so "common sense" that it occurs. Once the generation that grew up on Napster and its successors gets into their 50s, we might see some substantive change.
- aidenn0 11y agoUnfortunately I've seen the opposite result so far. I've seen authors literally balk at the suggestion that they shouldn't have full control over their creations for perpetuity, and upon further digging, their point of view was that anything less is immoral, not just illegal.
- rayiner 11y agoI think that's a really compelling viewpoint. Why should society have any rights to an artistic creation? I can have perpetual rights to some land that my ancestors (well not my ancestors since I'm an immigrant) stole from native Americans, which existed long before any human was alive, but somehow my right to something that I created that never existed before is subject to a social balancing? I don't buy it.
- CamperBob2 11y agoYour land didn't depend on any other land in order to be created, for one thing. If you want perpetual copyright, go live on a deserted island and work without any outside influence.
- rayiner 11y agoSure, creative works may be influenced by other creative works, but those are also protected by copyright and bought and paid for. I don't see how your argument justifies anyone else having rights to your creative works.
- magicalist 11y ago> I don't see how your argument justifies anyone else having rights to your creative works. Considering that they are intangible, I think you'll have to justify your exclusive rights to your creative works and why the government should enforce them. Fortunately (in the US) the constitution has you covered, and notably does not root it in an abstract right of ownership but as a means toward "the progress of science and useful arts".
- rayiner 11y agoI agree that the rival nature of physical property tends to cut in favor of stronger protections for physical versus intangible property. On the other hand, given the moralistic undertone of "rights" I think it doesn't make sense to ignore the other distinction, which is that intangible property is much more the product of human will and effort than many kinds of tangible property, particularly land. I think that cuts the other way--in favor of stronger protections for created property than not-created property.
- thaumasiotes 11y ago> Any ruling toward the original purpose of copyright, where it merely prevented large manufacturers from making a profit on others' copyrighted work Huh? The original purpose of copyright was to allow the government to prevent the publication of works it didn't like. See https://en.wikipedia.org/wiki/History_of_copyright_law#Early_privileges_and_monopolies https://en.wikipedia.org/wiki/History_of_copyright_law#Early... : > While governments and church encouraged printing in many ways, which allowed the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period. > As the "menace" of printing spread, governments established centralized control mechanisms, and in 1557 the English Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books."
- AdmiralAsshat 11y agoHow will this work in practice? Will it actually hold them responsible for court fees if they file another bogus request like this, or will the only thing that comes out of this be a simple checkbox on the DMCA takedown form that says "I considered fair use before filing this takedown request"? Will this actually help defendants establish the prohibitively difficult "bad faith" request on behalf of IP holders? EDIT: The Ars Technica article gives some time towards answering my concerns.[0] The short answer is, somewhat. "A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to 512(f) liability," [0] http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-in-long-running-dancing-baby-copyright-case/ http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-...
- zyxley 11y agoThe biggest impact I could see this happening would be sinking auto-DMCA bots, since without a human in the loop there isn't any consideration of fair use at all.
- pdabbadabba 11y agoThis is something I've been wondering about. Do we know the extent to which this process truly is entirely automated, and not so much as glanced over by an actual human? I would think that even a cursory human review of "infringements' flagged by a bot could satisfy the legal standard in this opinion, and would add little overall cost for the takedown mills.
- DanBC 11y agoRIAA sent 100,000 takedown requests to a single website. It's unlikely a human did much scrutiny of that. http://arstechnica.com/tech-policy/2015/09/sharebeast-the-largest-us-based-filesharing-service-has-its-domain-seized/ http://arstechnica.com/tech-policy/2015/09/sharebeast-the-la... And there are sites that routinely get clearly bogus takedown requests. Google deleted 200million search results in 2013. https://torrentfreak.com/google-deleted-200-million-pirate-search-results-in-2013-131112/ https://torrentfreak.com/google-deleted-200-million-pirate-s...
- fryguy 11y agoI find it amusing that this was in there: "Universal's claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss". Almost assuredly Universal can't show actual monetary loss from the copyright infringement of the artist formerly known as the artist formerly known as Prince song, they shouldn't have tried to take it down by their own logic.
- cwp 11y agoYou've got it backwards. It's the author of the dancing baby video that has to show monetary loss. That is, Lenz cannot sue Universal unless she can show that taking down her video caused her monetary loss.
- kej 11y agofryguy knows that, he's saying that it's hypocritical of Universal to argue against Lenz's case since she can't show actual damages while having previously issued a DMCA takedown notice even though they probably couldn't show actual damages.
- aidenn0 11y agoCopyright provides for statutory damages, so it specifically doesn't require showing monetary loss.
- pdabbadabba 11y agoI'll repost here what I said about my parallel (but apparently less popular) submission: TL;DR - This is the [in]famous "dancing baby" case in which Universal Music issued a takedown request for a home video of a baby dancing to Prince's Let's Go Crazy. The notice resulted in the video being taken down and then, eventually, put back up after a flurry of DMCA counter-notices. The creator of the video, Lenz, then sued Universal Music for making a bad faith DMCA takedown request. (DMCA allows suits for "any damages" arising from a material misrepresentation in a DMCA takedown notice.) The DMCA requires takedown notices to include a "good faith belief" statement that that the targeted work "is not authorized by the copyright owner, its agent, or the law." The opinion essentially holds that if you don't think about fair use, or if you know about a viable fair use defense, then this "good faith belief" statement is actionably false. Note that this standard is quite high. If the copyright holder can show that it formed a subjective belief that the targeted work is not protected by fair use (even if that belief is pretty crazy), then it's not liable. So, an interesting opinion, but it's pretty hard to see how a properly-represented defendant could lose under this legal standard. It may, however, limit the use of certain automated approaches to finding "infringing" content. While the opinion points out automated ways that a copyright holder could reasonably identify works that are not likely to be protected by fair use (such as where all of the audio and video perfectly matches the copyrighted work), human review will likely be necessary in many other situations, and these humans may be far more cautious than they used to be for fear of an eventual class-action lawsuit. Opinion - http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13... Ars Technica Coverage - http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-in-long-running-dancing-baby-copyright-case/ http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-... The video - https://www.youtube.com/watch?v=N1KfJHFWlhQ https://www.youtube.com/watch?v=N1KfJHFWlhQ
- tfinniga 11y agoDoes that mean that this ruling outlaws completely-automated takedown notices, because it requires a belief to be formed about each instance?
- pdabbadabba 11y ago
- skywhopper 11y agoUgh. (Current) copyright law is a cancer.
- dankohn1 11y agoIn case you're curious, it's about this video: https://www.youtube.com/watch?v=N1KfJHFWlhQ https://www.youtube.com/watch?v=N1KfJHFWlhQ Needless to say, I don't see it diminishing Prince album sales.
- ck2 11y agoFor a moment I was like "dancing baby" ? and I was thinking of the creepy animated baby from Ally McBeal https://en.wikipedia.org/wiki/Dancing_baby https://en.wikipedia.org/wiki/Dancing_baby wow I am old, but so is the internet, that's from the late 90s
- ebbv 11y agoThis is what I thought of too and I was like "What does Universal Music have to do with that?"
- jack-r-abbit 11y agoShowing my age as well. I thought the same thing. https://www.youtube.com/watch?v=-5x5OXfe9KY https://www.youtube.com/watch?v=-5x5OXfe9KY
- johnward 11y agoI'm almost 30. I just brought this video up a few weeks ago and it's one of the first times I have felt old. No one knew what I was referring to.
- Namrog84 11y agoI'm 31 and thought the same thing. Didn't realize till this post.
- doh 11y agoDefinitely interesting result. The primary problem is that nobody is looking for a win-win solution. Content ID was built as a copyrights enforcing tool and copyright holders scorned by the Napster, Kazaa, etc. experiences don't see any other way but take down. There are many other ways how to not harm the user and also be compensated. For instance put a link to the original song where people can buy/listen to it if they are interested. It's not only the law but the common sense that has to change towards copyrights and its enforcement.
- TeMPOraL 11y agoSadly, companies have no incentives to play nice and go for win-win. It's a kind of asymmetric prisoner's dilemma, when one party can intimidate another into cooperating, therefore being free to defect and take the bigger payout.
- thyrsus 11y agoWhat effect, if any, does this have on musicians complaining about the use of their work by issue advocates, e.g., the group Survivor complaining about the use of "Eye of the Tiger" by Mike Huckabee at the Kim Davis support rally?
- pdabbadabba 11y agoI think none, since those performances are not subject to the DMCA takedown procedures at issue here. It could affect videos of those rallies posted online, but only in that the artists will have to form a good-faith (though possibly inaccurate) belief that these performances are not fair uses before sending takedown notices.
- mmanfrin 11y agoIANAL; but I don't think this affects that at all -- it would affect people hosting a video taken of that rally that included the song in the background, but the Survivor lawsuit is about Huckabee/Davis's use of the song in the rally.
- 6stringmerc 11y agoFrom my understanding, as long as the venue in which those songs are being broadcasted over loud speakers pay the ASCAP/BMI collection society fees, the only recourse the artists like Survivor or R.E.M. have is to publicly decry their affiliation. I mean, they can sue, but I highly doubt they'd win. It would be an interesting case to see the angles taken though. Now, using one of the songs in a commercial, that's a different beast all together (re: sync rights). Beastie Boys are 2 for 2 in defending their sync rights in the past 5 years or so (GoldiBlox & Monster Energy).
- Zikes 11y agoAs to how this will affect YouTube and the like, I don't think it will. YouTube's process is not actually DMCA, it's a separate but similar entity following YouTube's own rules and policies. That's why YouTube's system is rife with abuse with no real recourse for content creators whose works are unfairly flagged.
- pdabbadabba 11y agoI don't think this is correct. This very case is about a video hosted on YouTube. The DMCA requires YouTube to have a takedown process that complies with the DMCA's rules in order to avoid liability for hosting infringing content. And YouTube likely cannot exculpate copyright holders from liability for making misrepresentations in their takedown requests since that liability is explicitly created by statute.
- bjt 11y agoYes, YouTube needs to honor DMCA takedown requests, but that doesn't stop YouTube from creating another YouTube-specific kind of request that people can make if they want to make some money off their content that other people have uploaded. That's what YouTube has done with Content ID. See https://support.google.com/youtube/answer/6013276 https://support.google.com/youtube/answer/6013276 > This very case is about a video hosted on YouTube. This case is about a video posted to YouTube 8+ years ago. Content ID was just getting off the ground then, and wasn't at issue in this case. https://en.wikipedia.org/wiki/YouTube#Content_ID https://en.wikipedia.org/wiki/YouTube#Content_ID
- pdabbadabba 11y agoFair enough. But I think this raises an interesting, and possibly challenging legal question: is a takedown request (including the standing requests that that content id allows) a "notification of claimed infringement" under the DMCA even if YouTube calls it something different? I could see this going either way if it were tested in court (maybe it already has been--I don't know). But if I were YouTube, I would try to keep my content ID procedures in line with the DMCA procedures voluntarily so that I wouldn't have to find out the hard way. The terminology and general procedure that YouTube uses for content ID roughly parallel the process set out in the DMCA, so I'm inclined to think that YouTube is thinking the same thing. I expect that someone in YouTube's legal department already has a memo someplace discussing the implications of this ruling for content ID that addresses these very issues.
- rayiner 11y agoThis is a huge ruling for copyright holders because it'll make it much more difficult to use automated software to send out DMCA takedown notices. That said, it's clearly the right answer. DMCA takedowns should be filed in good faith, a mental state requirement automated software cannot meet. Nobody said protecting your IP rights must be easy.
- ploxiln 11y agoUnfortunately the popular sites like youtube have not-exactly-DMCA arrangements with large copyright holders, because otherwise they would (still) be indefinitely in court and spending millions upon millions (regardless of the merit of the cases).
- throwawaykf05 11y ago> Nobody said protecting your IP rights must be easy. Shouldn't it be at least easy enough to make the hilders' situation somewhat more symmetric with the scale of infringement that happens on the Internet? How is an industry of a few hundred thousand people (of which only hundreds probably man the DMCA stations, so to speak) supposed to cope with infringement by hundreds of millions of people?
- malka 11y agoThe answer is actually simple: they cannot.
- JupiterMoon 11y agoThe most obvious cases can still be handled by bots. The bots will have to be improved if good faith continues to be enforced as it has been in this case. Less clear cut stuff will need to either be allowed to slide or be vetted by a human as one part of the process. One could imagine that videos flagged as potentially infringing are queued by the system and people are paid to evaluate them according to a set of criteria that allow for fair use etc. As you bring up the issue of asymmetry. I do agree with you that there is a numerical asymmetry between rights holders and the public. However, once a case progresses there is a financial and legal asymmetry in favour of the rights holders. The DMCA takedown system tends to exasperate this as it removes publishers liability completely if they comply with a DMCA in favour of the rights holders. Basically intellectual property laws need some more common sense changes to bring balance so that everyone acting in good faith can feel safe and make a profit.
- jayess 11y agoQuite a lengthy docket at the trial court level -- the case was initiated in 2007! https://www.unitedstatescourts.org/federal/cand/196424/ https://www.unitedstatescourts.org/federal/cand/196424/
- kordless 11y ago> In September 2007, Prince released statements that he intended to "reclaim his art on the internet." Hey Prince, do us a favor and take it all away and keep it for yourself. If we can't film our babies dancing to music that we listen to with them, and share it with others, that's a world I don't want to live in. Better you just mosey on along by yourself.