5 ms·

Is anyone else bothered by the characterization of the music as "background"? To me, that suggests music that happened to be playing incidentally in the backgro

by alexqgb 14y ago

Is anyone else bothered by the characterization of the music as "background"? To me, that suggests music that happened to be playing incidentally in the background while something unrelated was being filmed (e.g. people at a BBQ). That's not the same thing as a performance clearly tied to the song; one in which the particular song is a key element of the video. In other words, passing this off as "background" music is nonsense. Given the context of the video, that characterization is clearly and obviously not true, and I don't think the EFF does itself or the broader cause of copyright reform any favors by misrepresenting facts in this fashion. For what it's worth, I think Fair Use should allow this video, and videos like it. People's engagement with the culture is what makes it culture, and the idea that ownership of the underlying IP extends a bubble of ownership and control to every imaginable situation in which that IP appears is, frankly, odious. As far as this case goes, I think the EFF has picked a fight well worth having, but their ends don't justify the means. If anything, the means may compromise the ends.

prayag 14y ago
>That's not the same thing as a performance clearly tied to the song; one in which the particular song is a key element of the video. What performance? Would you really call a kid dancing to a song a "performance"? Do you think the kid wouldn't be dancing if any other song was on? In addition, performance is actually a legal term which will probably mean some sort of training and/or practice. This is not a performance. I don't think ANY court will agree with this being a performance.
- dhughes 14y ago
  I'd say legally the term 'performance' could have a very broad definition and could be referred to as any 'act'.
  - ktizo 14y ago
    If performance means any act, in the meaning of 'action' and not just 'to act in a perfomance', then the word performance loses the meaning of a perfomance and we would no longer be able to distinguish performances from any act and so the whole idea of being able to licence them would become rather problematic.
    - alexqgb 14y ago
      The legal definition of "performance" means that the song (or a portion thereof) was played in a public setting. Given the number of hits the video received, this performance was, unambiguously, public.
JanezStupar 14y ago
The music is background since the music is not the focus of the video, the dancing baby is. To me it seems that you are implying that parents wanted to post a tune from The Prince on the Internet and used a clip of their dancing baby as an excuse. That is precisely wrong and precisely along the lines that label lawyers will probably try to draw.
- bartl 14y ago
  And according to the article the video was 29 seconds long. Very short if someone wants to argue that the intention was to post the song...
  - alexqgb 14y ago
    Nobody is arguing that the intention was simply to post the song. They're saying that a portion of the song was used illegally and without permission. Also, 29 seconds is ~30 seconds, which is the length of a standard TV commercial. In a world where all identifiable samples need to be licensed, that's not "very short" at all. I know that telling people they're categorically wrong when it comes to copyright is perceived as defending copyright. I want to be clear that I recognize the need for substantial copyright reform and liberalization. When I say "you're wrong" I don't mean that reform and liberalization are bad things. I simply mean that you have no idea what you're talking about when it comes to the law itself, and how it actually works. I think widespread ignorance is a bad thing among those who (quite justifiably) would like to see the law changed.
- njharman 14y ago
  Depends on individuals idea of background. It has more than one meaning. As a defense background would have to mean incidental. Which would mean nature of the video would not be changed with musical removal. But really fair use should be extended to include individual, non-commercial use. Copyright, at most, should grant monopoly on monetization. Not on culture.
- alexqgb 14y ago
  No, that's not how the system works. The system works around a concept called "synchronization rights", which pertain to the synchronization of sound and picture - which is exactly what's going on here. Selling synchronization rights is a specific (and highly lucrative) line of business for artists and music publishers. That's what they're fighting to protect. They don't care if this was supposed to be commercial or not, any more than they care whether a commercial producer using their music in a feature film ends up making or losing money on the picture. They sell synchronization rights. You want 'em, you buy 'em. Or you get sued for infringing them. Those are your choices, that's their perspective in a nutshell, and they recognize no exceptions for "personal use". Right or wrong, the law is 100% on their side. Moreover, the fact that this video went viral and started producing actual ad revenue means that it is - regardless of intention - a clearly became commercial piece of media. Again, the entire situation is completely outside anything that anyone imagined in the pre-internet age, which is when the market for synchronization rights was established. The culture is developing is ways the law didn't anticipate, and which the law, to my mind, should not obstruct. However, I don't think it's smart to pretend this isn't a synch rights issue when that's exactly what it is. If EFF's object is to expand the scope of Fair Use to cover situations like this, and to create a precedent that demands publishers consider Fair Use before issuing take downs, then the issue of synchronization rights must be squarely addressed, not evaded by pretending that the audio track is incidental when that's demonstrably not the case.
gambiting 14y ago
I don't think you are right - people are watching this video to see a dancing baby,not listen to music. The music is not the main object of this video.
- njharman 14y ago
  Then the defendants should have no issue with stripping the audio. If not, then it implies the mingling of music and performance is more complicated than black and white opinions being stated here.
- alexqgb 14y ago
  That argument - if it held any water - would obviate the need to license any music used for any soundtrack added to any video.
Almaviva 14y ago
I agree with everything you said, but if you watch the actual video, the performance is clearly not tied to the particular song:)
- alexqgb 14y ago
  Don't be ridiculous. The kid is dancing TO the music.
abruzzi 14y ago
Haven't seen the video (and the article had no link) but in my mind, the key differentiator would be is the music part of the natural ambient sound, or is it an overlaid soundtrack? It's a lot easier to assert fair use when it is part of the environment in which I'm making my home movie instead of a track I added in post to make the video. There is a grey area where I am only capturing nat sound, but I have cued up the music specifically for the purpose the video.
- alexqgb 14y ago
  From the perspective of the recording industry, there is absolutely no ambiguity here. Whether you're synchronizing live or after the fact doesn't change the fact that you're synchronizing, and that right to do that is reserved by publishers. Selling that right is what they do for a living. I'm not saying this is right or wrong, smart or dumb. I'm just telling you that this is how they system actually works.
jerf 14y ago
Copyright exists largely to protect the commercial value of a work. Is anyone going to take seriously the idea that someone is going to say, "Hey, I want to listen to that Prince piece, let me just pop over to YouTube and listen to someone's partial recording of it through a consumer-grade radio recorded by a consumer-grade camera?" There's no damage in that case. While being a bit more strict about having to have actual damage being done to the copyright owner wouldn't completely clean up all abuse, it would eliminate some things like this that are just blindingly stupid. I get that someone can own a copyright on a piece of music but that shouldn't mean that I've got a blanket recording blackout imposed on anything within earshot in the meantime. I'd also observe that the reason for "fair use" in the first place, underlying the common 4-point test, is that free speech is an amendment to the constitution, so the copyright clauses within the original had to be harmonized with the amendment. It is certainly a valid argument that allowing copyright owners their blanket lock on recording while something they own happens to be playing in the vicinity is a free speech infringement.
- alexqgb 14y ago
  No, nobody is going to think this track is a substitute for a clean and complete version of the audio. If you think that's what's going on here it's because you're making the mistake of thinking that the market for personal enjoyment is the only one served by publishers. The commercial loss, in this case, comes from the failure to pay for synchronization rights, which is a major source of revenues for artists and music publishers. You may think this is "stupid" but that's only because you're considering this problem from your perspective alone. You have to remember that copyright - for most of its existence - never came into direct contact with the general public. In that regard, it was like regulations from the FAA or the FTC. I fully agree that, from the perspective of individuals suddenly subjected to its complexities, it seems stupid. And in many ways, it IS stupid. But often, the actual stupidity is very different from the apparent stupidity, which actually makes perfect sense if you know enough to consider the full picture. What I'm saying is that approaching the problem of reform from your perspective alone is like approaching astronomy by describing the way the world seems to you, not the way it actually is. In other words, you're not going to be able to advance from a Newtonian conception of gravity to Einstein's if you're still stuck in the pre-Copernican view that insists everything revolves around the Earth because that's they way it appears to you, personally.

by alexqgb 14y ago

prayag 14y ago

>That's not the same thing as a performance clearly tied to the song; one in which the particular song is a key element of the video. What performance? Would you really call a kid dancing to a song a "performance"? Do you think the kid wouldn't be dancing if any other song was on? In addition, performance is actually a legal term which will probably mean some sort of training and/or practice. This is not a performance. I don't think ANY court will agree with this being a performance.

dhughes 14y ago
I'd say legally the term 'performance' could have a very broad definition and could be referred to as any 'act'.
- ktizo 14y ago
  If performance means any act, in the meaning of 'action' and not just 'to act in a perfomance', then the word performance loses the meaning of a perfomance and we would no longer be able to distinguish performances from any act and so the whole idea of being able to licence them would become rather problematic.
  - alexqgb 14y ago
    The legal definition of "performance" means that the song (or a portion thereof) was played in a public setting. Given the number of hits the video received, this performance was, unambiguously, public.

JanezStupar 14y ago

The music is background since the music is not the focus of the video, the dancing baby is. To me it seems that you are implying that parents wanted to post a tune from The Prince on the Internet and used a clip of their dancing baby as an excuse. That is precisely wrong and precisely along the lines that label lawyers will probably try to draw.

bartl 14y ago
And according to the article the video was 29 seconds long. Very short if someone wants to argue that the intention was to post the song...
- alexqgb 14y ago
  Nobody is arguing that the intention was simply to post the song. They're saying that a portion of the song was used illegally and without permission. Also, 29 seconds is ~30 seconds, which is the length of a standard TV commercial. In a world where all identifiable samples need to be licensed, that's not "very short" at all. I know that telling people they're categorically wrong when it comes to copyright is perceived as defending copyright. I want to be clear that I recognize the need for substantial copyright reform and liberalization. When I say "you're wrong" I don't mean that reform and liberalization are bad things. I simply mean that you have no idea what you're talking about when it comes to the law itself, and how it actually works. I think widespread ignorance is a bad thing among those who (quite justifiably) would like to see the law changed.
njharman 14y ago
Depends on individuals idea of background. It has more than one meaning. As a defense background would have to mean incidental. Which would mean nature of the video would not be changed with musical removal. But really fair use should be extended to include individual, non-commercial use. Copyright, at most, should grant monopoly on monetization. Not on culture.
alexqgb 14y ago
No, that's not how the system works. The system works around a concept called "synchronization rights", which pertain to the synchronization of sound and picture - which is exactly what's going on here. Selling synchronization rights is a specific (and highly lucrative) line of business for artists and music publishers. That's what they're fighting to protect. They don't care if this was supposed to be commercial or not, any more than they care whether a commercial producer using their music in a feature film ends up making or losing money on the picture. They sell synchronization rights. You want 'em, you buy 'em. Or you get sued for infringing them. Those are your choices, that's their perspective in a nutshell, and they recognize no exceptions for "personal use". Right or wrong, the law is 100% on their side. Moreover, the fact that this video went viral and started producing actual ad revenue means that it is - regardless of intention - a clearly became commercial piece of media. Again, the entire situation is completely outside anything that anyone imagined in the pre-internet age, which is when the market for synchronization rights was established. The culture is developing is ways the law didn't anticipate, and which the law, to my mind, should not obstruct. However, I don't think it's smart to pretend this isn't a synch rights issue when that's exactly what it is. If EFF's object is to expand the scope of Fair Use to cover situations like this, and to create a precedent that demands publishers consider Fair Use before issuing take downs, then the issue of synchronization rights must be squarely addressed, not evaded by pretending that the audio track is incidental when that's demonstrably not the case.

gambiting 14y ago

I don't think you are right - people are watching this video to see a dancing baby,not listen to music. The music is not the main object of this video.

njharman 14y ago
Then the defendants should have no issue with stripping the audio. If not, then it implies the mingling of music and performance is more complicated than black and white opinions being stated here.
alexqgb 14y ago
That argument - if it held any water - would obviate the need to license any music used for any soundtrack added to any video.

Almaviva 14y ago

I agree with everything you said, but if you watch the actual video, the performance is clearly not tied to the particular song:)

alexqgb 14y ago
Don't be ridiculous. The kid is dancing TO the music.

abruzzi 14y ago

Haven't seen the video (and the article had no link) but in my mind, the key differentiator would be is the music part of the natural ambient sound, or is it an overlaid soundtrack? It's a lot easier to assert fair use when it is part of the environment in which I'm making my home movie instead of a track I added in post to make the video. There is a grey area where I am only capturing nat sound, but I have cued up the music specifically for the purpose the video.

alexqgb 14y ago
From the perspective of the recording industry, there is absolutely no ambiguity here. Whether you're synchronizing live or after the fact doesn't change the fact that you're synchronizing, and that right to do that is reserved by publishers. Selling that right is what they do for a living. I'm not saying this is right or wrong, smart or dumb. I'm just telling you that this is how they system actually works.

jerf 14y ago

Copyright exists largely to protect the commercial value of a work. Is anyone going to take seriously the idea that someone is going to say, "Hey, I want to listen to that Prince piece, let me just pop over to YouTube and listen to someone's partial recording of it through a consumer-grade radio recorded by a consumer-grade camera?" There's no damage in that case. While being a bit more strict about having to have actual damage being done to the copyright owner wouldn't completely clean up all abuse, it would eliminate some things like this that are just blindingly stupid. I get that someone can own a copyright on a piece of music but that shouldn't mean that I've got a blanket recording blackout imposed on anything within earshot in the meantime. I'd also observe that the reason for "fair use" in the first place, underlying the common 4-point test, is that free speech is an amendment to the constitution, so the copyright clauses within the original had to be harmonized with the amendment. It is certainly a valid argument that allowing copyright owners their blanket lock on recording while something they own happens to be playing in the vicinity is a free speech infringement.

alexqgb 14y ago
No, nobody is going to think this track is a substitute for a clean and complete version of the audio. If you think that's what's going on here it's because you're making the mistake of thinking that the market for personal enjoyment is the only one served by publishers. The commercial loss, in this case, comes from the failure to pay for synchronization rights, which is a major source of revenues for artists and music publishers. You may think this is "stupid" but that's only because you're considering this problem from your perspective alone. You have to remember that copyright - for most of its existence - never came into direct contact with the general public. In that regard, it was like regulations from the FAA or the FTC. I fully agree that, from the perspective of individuals suddenly subjected to its complexities, it seems stupid. And in many ways, it IS stupid. But often, the actual stupidity is very different from the apparent stupidity, which actually makes perfect sense if you know enough to consider the full picture. What I'm saying is that approaching the problem of reform from your perspective alone is like approaching astronomy by describing the way the world seems to you, not the way it actually is. In other words, you're not going to be able to advance from a Newtonian conception of gravity to Einstein's if you're still stuck in the pre-Copernican view that insists everything revolves around the Earth because that's they way it appears to you, personally.