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Major Labels Claim Copyright Over Public Domain Songs; YouTube Punishes Musician (techdirt.com)
87 points by mtgx on Aug 28, 2012 | hide | past | web | favorite | 38 comments

I recently used a public domain recording of a classical composition as the background for a video.

Within moments of uploading the video, I got an email from Youtube that IODA claimed to own the song. The piece was recorded in 1945 and is no longer subject to copyright. So I responded via their automated form, and surprisingly a couple hours later I got an email that said, "IODA has reviewed your dispute and released its copyright claim on your video"

So it worked out in this case, but what if they hadn't released their claim? I'd have no recourse. The system is heavily lopsided in favor of the record companies.

If they didn't release their claim, it would be up to you to contest it, possibly through the courts. This is unlikely ever to change, as YT has created this framework and policy implementation themselves.

If they didn't release their claim, it would be up to you to contest it, possibly through the courts.

How would a court help? YT makes the rules. It's a free service. Their rules may be stupid and biased, but I don't see any legal case.

Because Sony and some other labels are much bigger and don't really have much to lose by never releasing the copyright claim, so until people pressure this to change this will happen over and over.

Well at some point Google needs to be sued by not-big content owners. Frankly I think they would welcome that suit which would charge them with restraint of trade and maybe breach of contract. They could 'lose' that suit and then go back to making it much harder for the big labels to pull things down.

The reason I think they would like to lose it is that they know they are pissing off users, but their content strategy is walking (or perhaps running) under the shadow of a falling dinosaur (the labels) and they need to be sure not to be there when the corpse hits. This would give them an excuse to run faster.

I thought ContentID worked similarly to Shazaam; how is it flagging covers of songs?

Youtube have deals with many major content groups which gives the groups access to disable a video without any verification process. It's entirely plausible that some intern at UMG is going through big lists of songs, searching for their existence and accidentally flagging ones that aren't actually property of UMG, or maybe they're abusing the power that they have to remove stuff they just don't think should be there (but has a legal right to be).

Isn't there anything to prevent them from abusing their power? Do they literally have the right to remove every single video with a single click?

Nope, I asked my friend who worked at Youtube about this. He told me that they have to remove every video the label asks to have removed. Seems like a fantastic system. Surprisingly another American legal convention that favors a monsterously large corporation and shits on the individual citizen.

They don't have to. They have chosen to. Their policy may say they have to remove every video, but they chose the policy.

I believe they have the ability to remove any video yes, but I assume there are agreements; after all Youtube are not required to provide this, if they were to abuse it beyond what can be explained away with "dumb intern" or "oops wrong video" Youtube may decide to cut it off, but obviously Youtube get lots out of such a deal -- like Vevo, so who knows!

Its more like Soundhound in that the matching can be fuzzy. Covers are technically illegal as well, but through an agreement with the publishing houses YouTube actually has an opt-in program for labels which pays out 50% of all ad revenues for cover versions of songs in their videos.

  Many more details here:

Someone really needs to compete with YouTube. I really hoped Vimeo could do it, since they actually have a pretty decent HTML5 player, but it doesn't seem to be happening.

For music (ie, audio only), SoundCloud is very popular. 120 minutes free, more storage and features as you pay more. It's a bad fit for podcasters, though.

For video, I don't really see anything wrong with Vimeo aside from its lack of critical mass. YouTube still has 99% of the content you want.

Is funny how the two sites self select.

If you want to share film of yourself lighting farts, you put it on youtube.

Whereas if you want to make an detailed animation about philosophy's relationship to the colour blue, then you put it on vimeo, and if it is any good then someone else will put a badly transcoded version of it on youtube, which is where most people will watch it.

If Vimeo (or some other site) became a serious competitor to YouTube is there any reason to expect that they'd be any less deferential to the labels than YouTube is?

I'd say no, because I'd expect the labels to keep throwing lawsuits at a serious YouTube competitor until they were. Moreover, the labels have a new piece of ammunition they didn't have against YouTube: YouTube meets our requirements, why can't you?

Apple is defaulting to Vimeo in ios 6 instead of YouTube, so don't count them out yet.

re the decent player aspect: I've given up on Vimeo.

I use Firefox with the usual privacy plugins: NoScript, RequestPolicy, AdBlockPlus, and Ghostery. No matter how I configure the settings, including disabling all of them, I can't get Vimeo player to work.

DMCA takedown requests are sent under the penalty of perjury for false claims, so doing so is a criminal offense. The requester is also subject to civil liability.

YouTube’s content takedown system isn’t running on DMCA requests. It’s just a private agreement between YouTube and the labels: You don’t sue us and we give you the power to disable any song you own immediately without having to go through us.

Maybe the contract between YouTube and the labels contains punishments for labels wrongfully disabling songs they don’t own – but I very much doubt that.

> You don’t sue us and we give you the power to disable any song you choose immediately without having to go through us.

There, I fixed that for you.

There, I fixed that for you.

Please don't do that.

>DMCA takedown requests are sent under the penalty of perjury for false claims

Unfortunately, perjury requires willful false statements, made in bad faith, which is very, very hard to prove. In fact, to my knowledge, nobody has ever successfully sued a major label for making bogus takedowns.

Perhaps a negligence clause should be added to the DMCA.

The songs were flagged by Youtube's ContentID system, which looks for infringing material and gives the labels the option of directly removing it. No DMCA notices were involved.

A procedural hack might fix this:

YT identifies possibly infringing content via ContentID. Notifies the label.

Either at this stage or the reassertion stage, the label must file a DMCA notice, under penalty of perjury (the requirements for filing a notice are de minimis, a simple text template would suffice).

If the label is correct in its claim, it (and YT) are protected. If not, the falsely-accused infringer may seek remedy under 17 USC 512(f).

Unfortunately, that's limited to attorney's fees and damages, there are no additional penalties stipulated.

Who could pay your USA politicians enough to give such a clause teeth given the deep pockets of media mega-corps?

The damage performed is restriction of the entire populations ability to enjoy a PD work. So 50¢ per head of population should be reasonable damages. That should stop such fraud against the populace pretty quickly I'd think?

Look up "standing", in the legal sense.

I'm assuming you're implying that attempting to deny the rights of citizens to use works in the public domain doesn't provide sufficient harm to support a law suit?

In which case I disagree; it is an insidious harm inflicted on the entire citizenship.

The issue isn't that it doesn't indicate harm, and I'm not saying that standing wouldn't permit a suit, but in general, unless the plaintiff can demonstrate to the court direct harm.

If that harm is shared by a large group of persons, any one person may not have standing to demonstrate harm to that group, unless a class action can be brought.

I do entirely agree with your point that this is a harm against, not only the citizenship, but all persons who may lawfully use public domain or otherwise unencumbered works. That's unfortunately not the question addressed by standing, and law (often, though not always) hinges on specifics.

Law isn't my specialty, though I dabble in some research on the topic.



>unless the plaintiff can demonstrate to the court direct harm //

The harm per capita is slight in financial terms I'd agree. But demonstrating the harm is simple - I did something with a PD work, this company acted to prevent my free exercise of using that PD work.

It's akin to blocking a public right of way (not sure about law concerning such things outside the UK sorry) - you block access on a path or road that should be free to access by the public, you're preventing a person from exercising their rights.

Possibly there is a libel issue too - the company [maliciously] claim you're copyright infringing, you show the work used is out of copyright and that the company would have [on the balance of probabilities] known that.


¹ I gather that's the measure used for torts in the UK courts.

YouTube doesn't seem interested in making major content companies file DMCA notifications to remove content.

Well, we could suggest it to them.

Done: https://plus.google.com/104092656004159577193/posts/QX3faSVn...

Do you have an example case where this perjury clause was exercised successfully?

This is the future we can expect if legislation such as ACTA were to become law.

I noticed a lot of questions here on the capacities of the Google/YouTube "Content ID" system used to recognize infringements. The following analysis is a bit old, and not particularly scientific, but it will give you a better idea of its recognition capacities:


Interesting that someone is trying to lay claim to "O Little Town Of Bethlehem". I think we may have just found a use for heavily armed christian fundamentalists. Get Glenn Beck on the phone, tell him some liberal internet conspiracy is doing bad things to jesus.

Likely what happens is:

(1) Some artist covers a public domain song, it's on a record. That performance is still subject to copyright.

(2) Google's software matches the audio in the video with the copyrighted performance and auto applies a note that it "contains music from xyz corp", either directly or indirectly notifying xyz corp of potential infringing videos.

(3) Someone at xyz corp gets hundreds of notifications and presses the takedown button without following up to verify actual infringement.

You see, that's the other benefit of leveraging religious fanaticism to solve this. You are being reasonable and using known facts about the way these things probably work. Whereas to win this, ideally we need single-minded people who are completely immune to logic or reality. Hollywood would be perfect, but it has already picked sides.

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