

Major label uses DMCA to take down Romney ad of Obama crooning - shawndumas
http://arstechnica.com/tech-policy/2012/07/major-label-uses-dmca-to-take-down-romney-ad-of-obama-crooning/

======
Pinckney
Ars claims this is "as clear-cut a case of fair use as can be imagined", but
courts have established that political use, while an important factor weighing
in favor of fair use, is not the only factor, particularly when concerning the
wholesale appropriation of the work.

[http://www.callawyer.com/cle/cle_story.cfm?eid=898723&ev...](http://www.callawyer.com/cle/cle_story.cfm?eid=898723&evid=1&qVersionID=274&qTypeID=7&qcatid=23)

See for instance Long v. Ballantine, where the court ruled against a political
campaign for their unauthorized use of a photo in advertising.

Likewise, McCain settled with Browne over the former's use of his song in a
campaign video, after the court rejected the McCain campaign's fair use
argument.

[http://www.scottandscottllp.com/main/refuse_to_dismiss_music...](http://www.scottandscottllp.com/main/refuse_to_dismiss_music_copyright.aspx)

~~~
delinka
Did you read the same article I read?

"...seems like as clear-cut a case of fair use as can be imagined." They don't
'claim this is,' they say 'seems like.' And with that phrase, I am primed to
read a sentence later in the paragraph on why that's not the case.

The article goes on to say "copyright law explicitly mentions commentary and
criticism as justifications for fair use." I don't even see a mention of
'political use' to defend the "seems like" phrasing.

Unless they edited the article between views, I'd suggest you've incorrectly
characterized the article.

~~~
Pinckney
To be perfectly honest, I was so pleased to remember about Long v. Ballantine
that I stopped reading at that point and came here to post.

With that said, I don't see how Ars later characterizes the clip as anything
but fair use. Looking specifically at

 _The Romney ad seems like as clear-cut a case of fair use as can be imagined.
Obama's singing is a core part of the ad's message, and copyright law
explicitly mentions commentary and criticism as justifications for fair use.
And it's hard to imagine the ad harming the market for Al Green CDs or iTunes
tracks._

Ars seems to be saying that the ad meets two of the criteria for fair use:
that it is commentary or criticism, and that it has no effect on the work's
market. How does this strike you as indicating that they are rejecting fair
use?

~~~
pattern
This was my parsing of the article as well. The video could be viewed as being
either a "commentary" or a "criticism" or both. The continuation "and
copyright law explicitly..." is reinforcing that author's belief that this is
the case.

~~~
alexqgb
I'm fairly sure the "commentary and criticism" exception pertains to fair use
use of media that refers to the media itself (e.g. film reviews, cultural
commentary, satire of a popular program etc.)

All this is very different from declaring "I'm producing a work of commentary
or criticism and therefore I can do anything I want with whatever I find, even
if the point I'm making relates to something else entirely."

That's just a rookie move. Rupert Murdoch really was right about Romney
needing to "drop old friends from team and hire some real pros."

<https://twitter.com/rupertmurdoch/status/219393140245807104>

------
SoftwareMaven
So if you 1) know that anything you put up on YouTube can be hit with a DMCA
takedown and 2) you have music in your campaign video and 3) other candidates
have been bitten by this in the past, _why would you post on a site you don't
control_?

~~~
reedlaw
Which candidates have been hit by this? The "music" in the campaign video was
Obama singing. If I were posting such a video I would not automatically expect
it to be hit by a DMCA takedown.

~~~
delinka
Well, Someone Not Obama owns the rights to the lyrics. But that's the only
grounds I could think that such a takedown request would be plausible.
Compulsory licensing (which says once it's been recorded and published by
someone, it can be recorded and published by anyone provided they pay the
lyricist and composer the statutory fees) does not address fair use of any
particular recording.

So now, IMHO, we're left with whether it's OK for Romney to use the recording
in a critical manner. And I'd say yes. I think it's beyond 'would not
automatically expect' into 'there's no way anyone could claim...'

~~~
stfu
You are spot on. The original headline is wrong as it is not a major label but
a major music publisher who is responsible for the takedown. BMG Songs is
(almost) exclusively representing songwriters and composers - who can be
signed to completely different label (in the case of Al Green this should be
currently an EMI sub-label).

------
btown
For those interested just in hearing Obama sing, you can watch the sample in
question from an ABC News broadcast:
[http://www.youtube.com/watch?v=d8Qu8nThJ5w&t=15](http://www.youtube.com/watch?v=d8Qu8nThJ5w&t=15)

------
tlear
Only thing missing is disclosure of BMG contributions to each of the
campaigns.

~~~
vellum
It's owned by Sony Music. According to this site the breakdown for individual
donations is 73% Democrat versus 27% Republican.

[http://influenceexplorer.com/organization/sony-music-
enterta...](http://influenceexplorer.com/organization/sony-music-
entertainment/0d5eec529346401e874a79d10655e3fb?cycle=-1)

~~~
stfu
Finally a subject on hn that I can shine on with random details: BMG Songs is
not owned by Sony Music, but by Bertelsman and some private equity firms. It
predecessor BMG Music Publishing was not part of the merger with Sony. In fact
BMG Music Publishing was later sold to Universal Music Publishing. BMG Songs,
the company initiating the take down, is a relatively new around the block,
but largely run by ex-BMG Music Publishing guys. Their portfolio of music
exists almost exclusively through buying up independent publishers (i.e.
rights).

------
lambada
I'm seeing nothing that actually proves that the DMCA was used. We know
already that major record labels use Youtube/Googles "ContentID" system -
which in itself isn't a DMCA claim system (although it can lead to it). Given
the speed of the takedown, it seems likely this system was used.

Until one side comes out and confirms that they used the DMCA rather than the
ContentID, trying to point the blame at the DMCA seems to be rather hasty.

~~~
obtu
Speedy or not, content identification wouldn't have recognised the lyrics from
Obama's singing. YouTube's system is sold to users as a way to keep its DMCA
safe harbour (YouTube to McCain in 2008:
[http://arstechnica.com/uncategorized/2008/10/youtube-to-
mcca...](http://arstechnica.com/uncategorized/2008/10/youtube-to-mccain-no-
special-treatement-for-dmca-takedowns/) ), and YouTube needs to own up if it
goes beyond that.

------
ethank
You do realize these takedowns are automated? No one at a label sat there and
clicked "report"

~~~
stfu
The problematic aspect seems to be, that a) Obama was singing the song and b)
that there are lots of videos on YouTube of exactly this segment that were not
taken down. And in political campaigns there are no automated take downs -
just devious acts of sabotage by the opponent ;)

------
jhspaybar
Odd, it seems the examples given of politicians being hit by take downs were
Republican. It can't be that those in the Internet and Entertainment spaces
are predominantly liberal and use that to silence their opponents can it?
Nah...that'd be crazy to think freedom loving liberals would want to suppress
someone else's speech.

~~~
msg
I flagged you. Sorry, this just looks like flamebait/trolling to me. If you
want to believe I'm a Liberal Elite silencing your "discourse" I guess I can't
convince you otherwise.

~~~
bdcravens
Why trolling? If we criticize censorship of Kim Dotcom or Julian Assange, and
express anger, is that trolling? If Westboro Baptist or Glenn Beck abused the
DMCA to silence their critics, we'd rightly be waving pitchforks. No different
to criticize what appears to be an attack on free speech using the DMCA.
Regardless of your political stance, if there appears to be an agenda to
silence someone on the one side, then it's fair to label those on the other
side as crazy and evil.

~~~
natrius
Hacker News is not a place to discuss or engage in partisan politics.
Criticizing attacks on free speech is great. Blaming people of a certain
political persuasion for problems and (especially) furthering those arguments
with juvenile sarcasm have no place here.

------
tomjen3
I wonder if this is payment for the presidents support for SOPA?

Obviously not directly and previously negotiated, but maybe an I scratch you,
you scratch me situation?

------
ktizo
So from now on, politicians could just sing all the reports they want to bury
to the tune of popular songs, and the automated copyright filters would take
care of the exposure problem.

And now for the budget, this year sung to the tune of "Happy Birthday to You".

------
accountswu
Now the big question: Would either a Republican or a Democrat dare to get rid
of DMCA (or even the filthiest of its provisions) or would they continue to
support it as they get more donations from the backers of DMCA?

There isn't a dime's worth of difference between the two faces of the one-
party dictatorship of USA.

George Carlin on Freedom of Choice

<http://www.youtube.com/watch?v=yt49DsfKDMc>

<http://www.youtube.com/watch?v=SC_wjQtfhZQ>

~~~
natrius
The DMCA safe harbor provisions are a net good. Without them, YouTube could
not exist because they'd be held liable for content on their site that
infringes copyrights. The takedown and challenge process could be better, but
calling for politicians to "get rid of DMCA" is bad for the internet.

~~~
accountswu
Safe harbor is definitely good but it doesn't have to be exactly the way it is
currently. I read that current YT (or the host) must wait for at least 10 days
before adding the flagged content back. That sounds like BS, why must a
legitimate content be kept offline for 10 days?

------
leke
I wouldn't accept Romney's ad was fair use, as he has something very big to
gain from it. The same way he invested money in the making of the
advertisement, he should also pay the royalties for the song composition.

I hate all these stupid copyright laws, but if we must have it, then we must
ALL have to comply with it.

~~~
chris_wot
Fair use is a three part test. Your understanding of the law is... limited.

